Discovery of Evidence Abroad: Part I: Basic Considerations
By: David Shaub
Part I: Basic Considerations
It may be necessary to discover evidence abroad because a party to an action lives in a foreign country or is a foreign corporation, events occurred in a foreign jurisdiction, documents or witnesses are located in a foreign country, or United States citizens or residents are located in or have moved to a foreign country.
A party seeking discovery of evidence abroad initially should consider the general principles and procedures of its state’s civil discovery rules and the Federal Rules of Civil Procedure. Many of the provisions of State and Federal rules direct counsel as to the use of procedures governed by international conventions or similar procedures where no multi-national or bilateral treaties or agreements exist. These sources will cover the basic procedures for methods of discovery of evidence abroad.
In determining a plan of discovery concerning evidence abroad, counsel first should determine the character, location and content of the evidence sought. Before seeking the discovery of documents or the taking of depositions of witnesses in foreign countries, it should be determined as to whether copies of the documents are available in the U.S. If they are not available in the U.S., it should be determined whether the records can be obtained from a subsidiary, branch or affiliate of a foreign corporation, or from any of its officers or employees who are located in the U.S.
Because of hostile foreign reactions to the broad scope of discovery permitted in the U.S., any discovery requests of evidence abroad should be narrowly drawn so as to intrude as little as possible. In addition, any discovery that can be conducted in the United States, whether through the aid of court process or informally, should be initiated and concluded prior to seeking to obtain the evidence abroad.
In preparing a discovery plan and outlining the various sources of the evidence which is sought, it should be determined whether the country in which documents or witnesses are located is a signatory to any convention such as the Hague Convention, or any bilateral treaty which permits and governs the procedure concerning discovery amongst the parties to the convention or treaty. If no convention or treaty exists, it should be determined whether protocols or diplomatic notes may exist which would facilitate the discovery of evidence in the foreign jurisdiction.
In making these determinations, it is essential that the law and practices of the foreign country where the evidence is sought are understood. Blocking statutes, privileges concerning the illegality of production of documents to foreign persons, expansive protection of information, and internal remedies affording protective measures may preclude discovery in many foreign countries. Thus, it is critical that local counsel be consulted on the particulars of their country’s laws and practice that may aid in or bar the discovery of the evidence sought.
Because of the complexities occasioned by diplomatic channels and the consequent delays in discovery abroad, the expenses of that discovery must be estimated and taken into consideration. Linguistic barriers also raise the cost of production and often require the engagement of interpreters, transcribers and translators in order to obtain testimony and review documents produced.
Once these determinations have been made and discovery abroad is initiated, counsel should determine if model forms, such as those adopted for the Hague Convention, have been approved for use in obtaining discovery abroad. Because of the abhorrence by many foreign jurisdictions of what they style as “fishing expeditions” in respect to pre-trial discovery, document and other discovery requests should be narrowly drawn and should emphasize that the documents sought are for the purpose of trial. As a general rule, the parties should seek a court order for the requested discovery as it often is imprudent to rely simply upon a stipulation without an order or to proceed upon notice without a confirming order.
If examinations or inspections are sought abroad, it is crucial that counsel confer with local counsel to anticipate claims of privilege by non-resident aliens or foreign corporations who are requested to provide examinations, inspections, tests or other actions with regards to physical evidence. For a list of signatories to the Hague Convention visit: http://www.hcch.net/index_en.php?act=states.listing
More about the author:
David Shaub is Founder and Senior Partner of Shaub & Williams, LLP; member of the CA State Bar Association; formerly chair of the LA County International Law Section and member of the International Law Section of the CA State Bar.