Navigating Discovery Abroad: Obtaining Witnesses and Materials Located Outside of the US

August 24, 2011

Daily Journal

Today, there is an ever-present need to obtain discovery from people or organizations who are involved in disputes within the United States, but located in foreign jurisdictions. Lawsuits frequently arise where the need to obtain evidence from sources located abroad is critical to a case. When discovery is being sought from a person or organization who is a party to the action and located abroad, and thus subject to the court's jurisdiction, the process is comparable to obtaining discovery from a party located within the United States. State and federal discovery rules apply and will govern requests, production of documents, and the taking of depositions. Generally, Federal Rule of Civil Procedure 26 details general discovery rules to be followed, Federal Rule of Civil Procedure 30 describes the procedure for taking depositions, and Federal Rule of Civil Procedure 34 governs production.

State and federal rules allow a court to order persons located outside of the United States to produce documents and attend depositions in the United States so long as that person is subject to the personal jurisdiction of the court. Additionally, a party can obtain discovery from certain nonparties located abroad. Federal Rule of Civil Procedure 45 allows a party to subpoena documents from a nonparty witness and potentially subpoena a witness for deposition if that nonparty is located within the territorial jurisdiction of the court or has a place of business in the United States.

Alternatively, when seeking to obtain evidence from a person or organization located abroad that is not subject to the court's jurisdiction, the process begins with a determination as to whether the other country has consented to be bound by the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters. The Convention was created to help parties obtain evidence in both civil and common law legal systems, and most signatories to the Convention allow some form of discovery when dealing with cross-border disputes. A country must be a party to the Convention in order to be bound by the Convention, as opposed to just a member of the Hague Conference.

If the discovery originates in a country that is not a party to the Convention, “letters rogatory” will typically be used to obtain evidence instead of the Convention. These letters are one of the oldest discovery procedures used to conduct discovery abroad. It involves applying to the U.S. court where the action is pending and requesting that that court send a formal request for assistance directly to the foreign court. They can also be requested through diplomatic channels. Once the foreign court or authority receives the request, it issues the letters rogatory under seal and conducts the discovery pursuant to the specific request of the petitioning party. The foreign court, however, is under no legal obligation to issue this and, thus, should only be used where discovery under the Convention cannot be obtained.

When the evidence sought is located in a country that is a party to the Convention, a legal obligation does exist. These countries are considered contracting states. The Convention provides a mechanism to obtain evidence located in these states in both civil or commercial matters. Proceeding under the Convention is the most frequently used procedure, as it is less time consuming, less costly, and requires less involvement of government and court officials.

Most contracting states consider the Convention to be the exclusive mechanism to obtain evidence in other member states. The United States, however, is one of the minority countries that views the Convention as a permissive, alternative means to obtain evidence, rather than as an exclusive, mandatory procedure. In [Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa], 482 U.S. 522 (1987) the U.S. Supreme Court found that the parties have the option of using the Convention to obtain discovery that is located abroad, but that foreign discovery can also be taken using typical U.S. discovery procedures and the Federal Rules of Civil Procedure.

When evidence is to be obtained under the Convention, it involves the submission of a formal "letter of request," which can then be sent to a judicial authority or, more informally, sent to diplomatic officers, consular agents, and commissions who then gather evidence. Each process is discussed in chapter one and chapter two of the Convention, respectively.

A letter of request may be submitted in the state or federal court where the action is pending. This domestic court then directs the letter to the designated central authority in the foreign contracting state where the documents or witnesses are located. If the letter is approved, the central authority will send it to the appropriate judicial authority, who will then assist in obtaining answers to interrogatories, production of documents, and other discovery requests. The letter can also be directed to a diplomatic officer, consular agent, or commissioner, but only if there have been no objections filed to chapter two of the Convention. This more informal process of obtaining evidence through diplomatic officers, consular agents, or commissioners is subject to the published reservations and declaration of the contracting state.

The letter of request should be written in the language of the contracting state to whom the request is being made, but that state should also accept it in English or French. However, the receiving state may still object and request that another language be used. The letter must clearly and concisely identify various items in accordance with chapter one, including: the nature of the proceedings, the names and addresses of the person(s) to be examined, the questions to be put to that person, the documents or other material to be inspected, the form of oath to be used, how the testimony is to be recorded, and a specific request to ask questions of the person(s) if so desired.

Be aware tthat when drafting letters of request, certain countries can request the right not to execute the letter for the purpose of obtaining pretrial discovery. In general, a letter will be executed as requested, but Article 23 of the Convention allows contracting states to declare that they will not execute it " for the purpose of obtaining pretrial discovery of documents as known in the Common Law countries." Almost every signatory to the Convention, with the exception of Barbados, Israel, the United States, the Czech Republic, and the Slovak Republic, has indicated that it will not execute these letters for acquiring pretrial discovery. One way to avoid this potential issue is to draft the letter without using the term pretrial discovery, and to emphasize the fact that the evidence will be used for trial purposes instead.

Once a letter of request has been approved and executed, the authority to whom the request was made is expected to apply the same "measures of compulsion" as it would if the same request was made by a domestic party or authority in internal proceedings. Discovery will be sought to the extent that internal law allows and thus the foreign party requesting the evidence is treated the same as a domestic party.

While the Convention is not considered a mandatory means of obtaining foreign discovery in the United States, it is clear that it is a useful and efficient means to do so. It is important to be aware of the scope of the Convention, as well as the different reservations and designations of each contracting state so as to be better prepared when seeking evidence from a particular contracting state. The Hague Conference is a useful resource and provides relevant and insightful information, such as the list of contracting states, full text of the Convention, and various handbooks and examples of documents, such as letters of request. The Convention was designed as a means to facilitate cross-border discovery and should be utilized to the extent possible when seeking discovery abroad.