PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

(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 by:

(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 information sought.

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 information.

* 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 countries.271

Depositions.

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 do so.290

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 following:

* 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.
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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., [1978] 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 public documents).

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 549.

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 Cir. 1988).

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 20520.

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 courts.

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 authorization.

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. 1994).

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 testify voluntarily.

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.
292. Id.

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[3].

297. U.S. Dept. of State Circular, Preparation of Letters Rogatory (March 1992).

298. Report of the Proceedings of the Judicial Conference of the United States 4 (1980).

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