§44.1.6 Analysis

§44.1.6 ANALYSIS

This section analyzes the issues of pleading, obtaining discovery of, and proving laws of sister states and foreign jurisdictions, including the conduct of discovery and the consequences of a failure to plead or prove foreign law.

(1)Pleading laws of United States jurisdictions

Although the laws of sister states and other United States jurisdictions need not be pleaded, notice must be given in written form. CR9(k)(l). If notice is not found in the pleadings, it must be in another document that is served on the other parties and filed with the court. CR 5(d)(1). The form of notice is not prescribed by the rule. Broad latitude is allowed; allegations of fact suggesting that the law of another jurisdiction may apply are sufficient to give notice under the rule. See Erickson v. Sentry Life Ins. Co., 43 Wn.App. 651, 655, 719 P.2d 160, review denied, 106 Wn.2d 1008 (1986). See generally 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §2443 (3d ed. 2008 & Supp. 2013).

The date of notice is fixed by the date of service of the pleading or other written document. The rule does not suggest a time limit or a schedule to determine what constitutes "reasonable notice." The reasonableness of notice is a matter that is left to the discretion of the court if there is a dispute between the parties. Ordinances, regulations, or other official acts with less stature than statutes and case law should be pleaded by analogy to CR 9(d), (e), (h), (i), and (j).

(2)Pleading laws of foreign countries

In contrast to the flexibility allowed for giving notice of sister states' law, notice of intent to rely upon the law of a foreign country must be contained in an initial pleading. If notice of the application of foreign law is not contained in an initial pleading, the party seeking application of foreign law must amend the pleading pursuant to CR 15. The "other reasonable written notice" method is not permitted. An allegation of facts that suggests that the law of another jurisdiction may apply is also not sufficient. The party must specify the foreign jurisdiction and allege that its law is applicable to the case.

(3)Balancing discovery against work-product privilege

When in haec verba pleading was required, no discovery was necessary. The party seeking to apply foreign law was required to set forth in that party's pleadings the statutes and cases setting out the foreign law and its expected effect on the case. See §44.1.3, above. With notice pleading, only minimum disclosure is required. Under current practice, therefore, disclosure of foreign law becomes a discovery issue. See CR 26(b)(1), (4), (5). See §§44.1.7(1) and 44.1.8, below.

With respect to United States jurisdictions, courts are adopting the view that another state's law can be researched readily in modern law libraries or electronic databases. See Prudential Ins. Co. v. O'Grady, 97 Ariz. 9, 396P.2d246 (1964) (abandoning the rule that sister-state law be specifically pleaded). To the extent that both parties have equal access to legal research, the justification to protect the work-product privilege diminishes.

CR 44.1 and CR 9(k) do not specifically describe the extent to which Washington allows discovery related to foreign law of U.S. jurisdictions. Counsel must rely on developing case law under Chapter 5.24 RCW and the civil rules.

With respect to the laws of a foreign country, CR 9(k)(2) contains a specific description of matters available for discovery. These include (1) the party's contentions regarding which issues are governed by foreign law; (2) the substance of the foreign law; (3) the expected effect of the foreign law; and (4) the specific foreign statutes, administrative decisions, documents, and nonprivileged materials upon which the party intends to rely. CR 9(k)(2).

(4)Pretrial determination of foreign law

The application of foreign law can be determined before trial pursuant to CR 16 or by use of a partial summary judgment motion under CR 56.

(a)CR 16

Federal courts have a mandatory pretrial conference procedure...