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(excerpted from Manual for Complex Litigation, '95 ed.)
Discovery directed at witnesses, documents, or other evidence located
outside the United States will often create problems, since many countries
view American pretrial discovery as inconsistent with or contrary to their
laws, customs, and national interests.262 The need for evidence located
outside the United States should be explored early in the proceedings to
allow for the extra time that may be required to obtain it and consider
ways to minimize cost and delay, or to develop alternate methods of proof
when the evidence cannot be obtained. For example, the parties may
achieve substantial savings by paying a willing deponent to come the
United States or, if permitted by the laws of the host country, conducting
short depositions telephonically. The following factors may affect
whether, to what extent, and in what manner foreign discovery is conducted:
* Laws of the United States.
The procedures for obtaining evidence from other countries are prescribed
(1) the Federal Rules of Civil Procedure, particularly Rule 28(b)
(depositions in a foreign country);263
(2) statutes, particularly 28 U.S.C. 1781 (transmittal of letter
rogatory or request), 1783 (subpoena of person in a foreign country), and
1784 (contempt); and
(3) international agreements, particularly the Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters (the "Hague
Convention").264 Attention must also be given to applicable decisional
law 265 and the Federal Rules of Evidence.266
* Laws and attitude of the foreign country.
The extent and form of pretrial discovery that will be compelled or even
permitted by other sovereigns vary widely. Even within a particular
country, the rules may differ depending on the nature and identity of the
person or body from which the discovery is sought and on the type of
For example, the breadth of discovery may depend on whether the evidence
is testimonial or documentary.267 Some countries not only refuse to
compel a witness to provide evidence, but also prohibit the voluntary
production in any manner of some items of evidence. The attitude of the
other country may also be affected by the current state of its diplomatic
relations with the United States and by the nature of the litigation. This
latter factor is particularly important if the American litigation
involves claims (such as antitrust) that conflict with the law or policies
of the foreign country.
* Position of the person or body from which discovery is sought.
Foreign discovery rules may vary depending on whether discovery is sought
from (1) a national of the United States, of the country in which the
discovery is to be conducted, or of another country; (2) a person or
entity party to the American litigation or otherwise subject to the
jurisdiction of the American courts;268 (3) an instrumentality or arm of a
foreign country; or (4) a person or entity willing to provide the
* Posture of the litigant.
Extraterritorial discovery will be expedited if the parties to the
litigation cooperate by entering into stipulations under Fed.R.Civ.P. 29
as to the manner and location of discovery.269 The refusal of a party with
foreign connections or interests to enter into stipulations may not,
however, reflect an uncooperative attitude but may be compelled by the
laws or customs of the foreign country. Because procedures for obtaining
foreign discovery vary from country to country and are often complex, it
is generally advisable for the attorneys to associate local counsel. The
Department of State and the appropriate American Embassy or Consulate can
also provide assistance in planning discovery in foreign countries.270
The Department of State's Office of Citizens Consular Services can provide
lists of local counsel and current information regarding such matters as
reservations and declarations under the Hague Convention, practices in
nonsignatory countries, the procedures to be followed in particular
countries, and actual results of discovery efforts in specific
Fed.R.Civ.P.28(b) establishes four alternate procedures for taking
depositions in other countries.272 Under Rule 28(b)(1), when the coun try
where discovery is sought is a signatory to the Hague Convention,273
depositions may be taken in accordance with the convention, as described
below, though resort to the convention is not mandatory.274
When the country is not a signatory, resort must be had to one of the
procedures in Rule 28(b)(2)(4). Under Rule 28(b)(2), the American court
may issue a "letter of request"275 seeking the voluntary assistance of the
court or other agency of the foreign country to compel the deponent to
provide evidence.276 The foreign country ultimately decides whether to
honor and execute the letter of request.277
When the deponent is willing to give evidence, the parties may utilize
the "notice" or "commission" methods of Rule 28(b)(3) and (4),
respectively, if not prohibited by foreign law.278
The "notice" method is essentially the same used for a typical domestic
deposition. Under the "commission" method, the American court appoints a
person typically an American consular officer279 to administer the
oath and preside over the deposition.
Much foreign discovery will occur in countries that are signatories to
the Hague Convention.280 The convention generally allows evidence to be
taken compulsorily pursuant to a letter of request281 or voluntarily
before a diplomatic officer or consular agent or any person "commissioned"
for the purpose.282
The convention must, however, be read in light of the numerous
reservations and declarations made by the signatories, through which they
have modified or declined to adopt various provisions.283 These create
variances among the discovery rules applicable in the signatory countries,
and may be complex. When "necessary in the interest of justice," a United
States national or resident in a foreign country may be subpoenaed to
testify or produce documents.284 Failure to comply may subject the person
to punishment for contempt.285
Blocking laws. Efforts to obtain or compel production of documents
located outside the United States may be impeded by one of the increasing
number of foreign nondisclosure (or "blocking") laws.286 These laws take
the form of general commercial and bank secrecy laws, as well as more
specific and discretionary blocking statutes aimed at combating perceived
excesses in American discovery.287
The fact that certain discovery is prohibited under foreign law, however,
does not prevent the court from requiring a party to comply with a demand
for it,288 though it may be relevant in determining the sanctions to be
imposed for noncompliance.289 Where a party fails to comply with a
discovery order because of a blocking statute, the court may impose any of
the sanctions set out in Fed.R.Civ.P. 37(b), though it may also consider
factors such as the party's good faith efforts to comply in declining to
Judicial control. The Supreme Court has cautioned that United States
courts should exercise special vigilance to protect foreign litigants from
unnecessary or unduly burdensome discovery and should supervise pretrial
proceedings particularly closely to prevent discovery abuses.291 The
additional cost may increase the danger that foreign discovery will be
used for an improper purpose, such as to burden or harass; objections to
abusive discovery advanced by foreign litigants should therefore receive
"the most careful consideration."292
In deciding whether to issue an order directing production of information
abroad, and in framing such an order, the court should consider the
* the importance to the litigation of the discovery requested;
* the degree of specificity of the request;
* whether the information sought originated in the United States;
* the availability of alternate means to secure the information; and
* the extent to which noncompliance with the request would undermine
important United States interests or compliance would undermine important
interests of the country in which the information is located.293
Comity also dictates that American courts take into account special
problems confronted by the foreign litigant because of its nationality or
location, and any sovereign interests expressed by a foreign state.294 A
court order requiring that all extraterritorial discovery be conducted
using the procedures in the Hague Convention when available may serve
this purpose. The risk that a foreign country will refuse to execute a
letter of request can be minimized by careful drafting. In most cases the
request should be directed at evidence for use at trial.
Requests for documents should be as specific as possible; Hague
Convention countries that have executed a reservation under Article 23
295 will ordinarily not execute general requests for broad categories of
documents for use in discovery.296 The language of the letter should be
simple and nontechnical, and no unnecessary information should be
included.297 The court should incorporate findings as to the extent of
discovery to be permitted and the need therefor in a separate order that
can be presented to foreign authorities, even if letters of request are
not being issued.
Federal judges are not authorized to travel abroad to control the conduct
of depositions, at least in the absence of specific approval by the
Judicial Conference of the United States. For this reason, the court
should adopt in advance appropriate guidelines to govern such depositions
consistent with the laws of the other country. Moreover, if permissible
under the laws and customs of that country, the judge may be available by
telephone to resolve disputes or may appoint a special master to
supervise the deposition personally.300 Before either of these procedures
are employed, advice should be sought from the Department of State's
Office of Citizens Consular Services.
260. See Fed. R. Evid. 801(c), 803(3).
261. See Fed. R. Evid. 703.
262. In civil law jurisdictions in which the gathering and presentation
of evidence is under the control of the courts and not the litigants,
taking a deposition may be considered the perfor mance of a judicial act
by another sovereign. In addition, many common law jurisdictions disfavor
discovery requests directed at obtaining material other than evidence to
be presented at trial. See, e.g., Rio Tinto Zinc Corp. v. Westinghouse
Elec. Corp.,  1 All E.R. 434 (H.L. 1977); Extraterritorial
Discovery in International Litigation 24 (PLI 1984).
263. See also Fed. R. Civ. P. 44(a)(2) (authentication of foreign
official record). This rule must be read in conjunction with the 1981
Hague Convention Abolishing the Requirements of Legalization for Foreign
Public Documents, October 5, 1981 (entered in force for the United States
on October 15, 1981), 527 U.N.T.S. 189, T.I.A.S. No. 10072, reprinted
following the rule; see also 28 U.S.C. 1740, 1741, 1745.
264. March 18, 1970 (entered into force for the United States on October
7, 1972), 23 U.S.T. 2555, T.I.A.S. No. 7444, reprinted at 28 U.S.C.A.
1781 (West. Supp. 1993). As its title implies, the convention does not
apply to criminal cases. See Obtaining Discovery Abroad 9 (ABA 1990).
265. See, e.g., Societe Nationale Industrielle Aerospatiale v. District
Court, 482 U.S. 522 (1987); Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinea, 456 U.S. 694 (1982); Societe Internationale v.
Rogers, 357 U.S. 197 (1958); In re Westinghouse Elec. Corp. Uranium
Contracts Litig., 563 F.2d 992 (10th Cir. 1977).
266. See, e.g., Fed. R. Evid. 902(3) (self-authentication of foreign
267. For example, most countries party to the Hague Convention will not
execute letters of request for the purpose of obtaining pretrial
disclosure of documents. See Hague Convention, art. 23, supra note 264.
268. Where the entity or person from whom discovery is sought is subject
to the court's jurisdiction, it will often be faster and less costly to
utilize the standard discovery methods of the Federal Rules of Civil
Procedure. See Obtaining Discovery Abroad 2 (ABA 1990). In considering
whether to use the Federal Rules or the Hague Convention, the court
should consider the particular facts of the case, the sovereign interests
of the two countries, and the likelihood that resort to the procedures of
the Hague Convention will be effective. Societe Nationale, 482 U.S. at
269. Stipulations for nonstenographic and telephonic depositions under
Fed. R. Civ. P. 30(b)(2), (7) also may be valuable (the court may also
order the use of these procedures, see supra 21.452), but such
procedures may violate foreign law. Stipulations as to admissibility are
particularly important because the discovery may not be in the question-
and-answer form traditional in American litigation. In this regard, the
court should note that under Rule 28(b), "[e]vidence obtained in response
to a letter of request need not be excluded merely because it is not a
verbatim transcript, because the testimony was not taken under oath, or
because of any similar departure from the requirements for depositions
taken within the United States under these rules." For discussion of this
issue in a criminal case, see United States v. Salim, 855 F.2d 944 (2d
270. For the State Department's regulations on foreign discovery, see 22
C.F.R. 92 (1993).
271. Inquiries should be directed to the Office of Citizens Consular
Services, Room 4817, Dept. of State, 2201 C Street, N.W., Washington, DC
272. See also Restatement (Third) of the Foreign Relations Law of the
United States 474(2) (1987).
273. The rule refers to "any applicable treaty or convention," but the
intended reference is to the Hague Convention. See Fed. R. Civ. P. 28
advisory committee's note.
274. See Societe Nationale, 482 U.S. at 52940; see also Restatement
(Third) of the Foreign Relations Law of the United States 473 (1987).
275. The more commonly used term for this device had been "letter
rogatory," but the federal rules and the Hague Convention, and therefore
this manual, now use the more accurate "letter of request."
276. For a thorough discussion of the issues and procedures involved in
obtaining judicial assistance from a foreign country, see Ristau, supra
note 82. For the form and substance of a letter of request, see the Model
for Letters of Request located after 28 U.S.C.A. 1781 at 14143 (West
Supp. 1993). There may be a long delay, perhaps as much as two years,
between the issuance of a letter of request and receipt of the evidence.
The Department of State's Office of Citizens Consular Services often can
provide information about recent experiences in particular countries.
277. Many countries not parties to the Convention, such as Switzerland
and Canada, routinely execute letters of request from United States
278. For example, in Japan and Turkey a deposition on notice is
permissible only of an American citizen, while Swiss law makes it a crime
to take any deposition in that country without governmental
279. See 22 C.F.R. 92.4(a).
280. Currently, twenty-one countries are signatories; for a list, see 28
U.S.C.A. 1781 at 12526 (West Supp. 1993). Ireland is the twenty-first
and most recent signatory. Fed.R.Civ.P. 4 editorial notes (West Supp.
281. Although the judicial authority executing the request will apply its
own procedures, the convention states that special requests for
example, for a verbatim transcript or for answers in writing and under
oath are to be honored unless incompatible with the law of the
executing state or otherwise impossible or impracticable. Hague
Convention, art. 9. In practice, though, such requests are commonly not
complied with. Under the convention, letters of request must be sent to a
"Central Authority" designated by the receiving country; the identities
of the authorities designated are given in notifications appended to the
treaty. See 28 U.S.C.A. 1781 at 12541 (West Supp. 1993). For
discussion of the procedures and problems associated with letters of
request, see Spencer W. Waller, International Trade and U.S. Antitrust
Law 7.08 (1992).
282. Hague Convention, arts. 16, 17. Issuance of both a commission and a
letter of request, as authorized by Rule 28(b), may be a useful measure
to guard against the risk that a deponent may not remain willing to
283. Many countries, for example, require that a judicial officer conduct
depositions, and a majority will not execute letters of request issued
for the purpose of obtaining documents related solely to pretrial
discovery. Each country's declarations and reservations are listed in the
notifications at the end of the convention. See 28 U.S.C.A. 1781 at
12541 (West Supp. 1993).
284. 28 U.S.C. 1783.
285. 28 U.S.C. 1784.
286. See Obtaining Discovery Abroad passim (ABA 1990).
287. See Waller, supra note 281, 7.09.
288. Societe Nationale Industrielle Aerospatiale v. District Court, 482
U.S. 522, 544 n.29 (1987).
289. Societe Nationale v. Rogers, 357 U.S. 197, 20406 (1958).
290. See Obtaining Discovery Abroad 1822 (ABA 1990).
291. Societe Nationale, 482 U.S. at 546.
293. Restatement (Third) of the Foreign Relations Law of the United
States 442(1)(c) (1987), earlier draft cited in Societe Nationale, 482
U.S. at 544 n.28.
294. Societe Nationale, 482 U.S. at 546.
295. See supra note 268.
296. See Waller, supra note 281, 7.08.
297. U.S. Dept. of State Circular, Preparation of Letters Rogatory (March
298. Report of the Proceedings of the Judicial Conference of the United
States 4 (1980).
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