Discovery of Evidence Abroad: Part II: The Hague Evidence Convention and Letters of Request
By: David Shaub
Part II: The Hague Evidence Convention and Letters of Request
(Part I located here)
The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, March 18, 1970 (the “Convention”, 23 U.S.T. 2555, TIAS no. 7444; 28 U.S.C. § 1781) became effective in the United States on October 7, 1992. The Convention is a revision of portions of earlier conventions on civil procedure dealing with international judicial assistance regarding the taking of evidence abroad. The Convention made improvements upon the previous procedures relating to Letters of Request which are used when evidence needs to be compelled, increased the powers of consul, introduced the common law concept of a court appointed commissioner, and preserves less restrictive practices and procedures arising out of local law or from other conventions, both bilateral and multi-lateral. Further, the Convention adopted rules on languages, established a Central Authority, and made provision for privileges and immunities of witnesses as well.
A Letter of Request, which is issued by the court presiding over the litigation, may seek testimony or documentary evidence. For document discovery under the Hague Convention, the court where the action is pending shall issue a Letter of Request and transmit it to the “Central Authority” of the jurisdiction where the discovery is located. The Central Authority is then responsible for transmitting the request to the appropriate judicial body for a response. The Hague Convention, arts. 1 & 2. Deposition testimony may be obtained by means of a Letter of Request, by a request that the testimony be taken before a diplomatic or consular officer, or by a specially appointed commissioner in the non-U.S. jurisdiction. The Hague Convention, art. 3.
The Convention is only available in civil and commercial matters. Criminal matters that arise in a foreign country are handled by the Criminal Division’s Office of Internal Affairs (“OIA”).
While most of the signatories to the Convention have agreed to allow some form of discovery of documents and testimony pursuant to Letters of Request, Article 23 of the Convention permits a ratifying party to opt out from the application of the Convention to pretrial discovery and production of documents by permitting a contracting State to “declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” As a result, more than half of the signatories have executed some form of declaration under Article 23 modifying the wide breadth of discovery allowed under U.S. standards. This, in turn, severely restricts the ability of a party in the United States to obtain documents under the Convention.
A Letter of Request must be issued by a court or other judicial authority and must be in aid of a pending or contemplated judicial proceeding. It may not be used to obtain evidence which is not intended for use in a judicial proceeding, including a proceeding before a legislative or administrative agency or before a non-judicial arbitration proceeding. A Letter of Request may seek the examination of witnesses or the inspection of documents or things (real or personal property). (See the Convention, Article 3(e)-(g)). Written questions may be prepared to be submitted to the persons to be examined and a request can be made that a preferred special method or procedure be followed. Under Article 9, while the judicial authority which acts upon and executes a Letter of Request shall apply its own law as to the methods and procedures, it will follow a request specifying a special method or procedure unless incompatible with the internal law of the country or made impossible of performance by reason of its practice and procedure or practical difficulties. Thus, written interrogatories, requests for admissions, and other procedures which may be unique to civil discovery practice in the United States may be sought or even required. See Pierburg GmbH & Co. v. Superior Court (1982) 137 C.A.3d 238, 186 C.R. 876 (plaintiff required to resort to convention in obtaining answers to written interrogatories). Further, a Letter of Request must specify certain information or else it will be returned as non-conforming.
A Model Letter of Request can be found here