Taking Evidence Abroad for Use in Litigation in Colorado
| Jurisdiction | United States,Federal |
| Citation | Vol. 14 No. 4 Pg. 523 |
| Pages | 523 |
| Publication year | 1985 |
1985, April, Pg. 523. Taking Evidence Abroad for Use in Litigation in Colorado
As more and more Colorado businesses expand their activities to include sales or investment outside of the United States, and as foreign involvement in Colorado's economy grows, the likelihood that litigation with international dimensions will arise increases significantly. The lawyer representing a client (U.S. or foreign) involved in such litigation may discover a need to "take evidence abroad"; that is, to obtain documents or testimony from witnesses located outside the United States or to serve process or other documents on a person located outside the United States.
The methods and procedures for serving process and taking evidence abroad are generally little known to most practicing U.S. lawyers. Depending on the country involved, they may derive from a combination of treaty, foreign law and U.S. law. They are generally different, more costly and less expeditious than their domestic counterparts. As a result, careful planning is necessary to yield a product that will be affordable, timely and in a form that is useful in the U.S. proceeding.
In recent years, controversy and conflict have been endemic to efforts to take evidence abroad for use in litigation in the United States.(fn1) There are both procedural and substantive reasons for this. On the procedural side, U.S. discovery procedures and standards are unparalleled in their liberality, even in other common-law countries. The standard of relevance in Federal Rules of Civil Procedure ("F.R.C.P.") Rule 26---that information sought in discovery be "reasonably calculated to lead to the production of admissible evidence"---is extremely broad, and allows discovery of documents and other information that will not necessarily be used at trial. Furthermore, in the U.S., the parties themselves, rather than the court, conduct most of the discovery. This is alien to many other systems, especially civil-law countries, where the taking of evidence is considered to be a sovereign function.
On the substantive side, U.S. laws regulating business activities, as in the antitrust and securities areas, are not shared by many countries. Moreover, the U.S. has been aggressive about applying those laws extraterritorially, leading even some U.S. allies to view the U.S. as legal imperialists.
As a result of conflicts created by these differences, a number of countries, including the United Kingdom, Canada, France and Australia, have adopted so-called "blocking" statutes designed to prevent or limit the taking of evidence within their borders for use in U.S. proceedings.(fn2)
This article attempts to provide an overview of the principal sources of law and the methods for the taking of evidence outside of the U.S. for use in civil litigation in the U.S., with a particular emphasis on Canada and Mexico.(fn3)
Each country has its own procedures for the taking of evidence within its territory for use in foreign litigation. From the perspective of the U.S., it is possible to divide the countries of the world into two basic groups for analytical purposes. The first group comprises countries which are party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Hague Convention").(fn4) This is the only multilateral agreement on the taking of evidence abroad to which the United States is party.(fn5) The Hague Convention provides several methods for the taking of evidence in those seventeen countries which are party to the Convention in matters falling within the Convention's scope.(fn6)
The second group, including Canada and Mexico, consists of countries which are not party to the Hague Evidence Convention. For these countries, there is no international agreement embodying an agreed-upon set of obligations and procedures.(fn7) Rather, any international obligation these countries may have to render judicial assistance to other countries arises primarily from principles of comity.(fn8) The taking of evidence is a procedural matter, governed under principles of international conflicts of law by the law of the country where the evidence is to be taken.(fn9)
Although the foreign country's law is thus dispositive as to permissible procedures, U.S. law is also relevant, since it establishes what is acceptable to the U.S. court where the action is pending. The relevant U.S. law is either federal or state law, depending on whether the evidence is to be used in a federal or state court proceeding.
Because of the difficulty of determining foreign law and the lack of an agreed-upon set of procedures, taking evidence in a non-Hague Convention country is frequently a more complex and protracted exercise than in Hague Convention countries. The Hague Convention procedures can be better appreciated with an understanding of the situation in the absence of the Convention. Thus, procedures in countries not party to the Convention are discussed here first.
First discussed are the various methods of taking evidence permitted under federal and Colorado law. The methods typically available in foreign countries are then examined, focusing on two countries with which Colorado practitioners have frequent contact---Canada and Mexico. At this writing, neither of these countries is a party to the Hague Convention.
The principal provisions that must be consulted when seeking to take testimony abroad for use in a proceeding in a U.S. federal court are F.R.C.P. Rules 28(b) and 29. Rule 28(b) provides in pertinent part as follows:
Thus, the three methods provided by Rule 28(b) for taking testimony in foreign countries are by notice, by commission and by letter rogatory. In addition, F.R.C.P. Rule 29 permits the parties, absent a court order to the contrary to modify by written stipulation the discovery procedures contained in the Rule and to provide for the taking of depositions before any person, at any time or place and upon any noticeIn a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory.
The party intending to take a deposition using the notice method serves a notice upon the other party or parties in the manner prescribed in F.R.C.P. Rule 30 (if taken upon oral examination) or F.R.C.P. Rule 31 (if taken upon written interrogatories). The notice must state the name or descriptive title of the person before whom the deposition is to be taken. That person may be either a U.S. or a foreign official, but, in any event, must be someone authorized to administer oaths outside of the United States.(fn10) Court reporters do not have authority to administer oaths on foreign soil. Consular officials do have such authority and are required by federal law to do so upon request.(fn11)
A commission is an order from the U.S. court where the action is pending designating an individual, by name or descriptive title, as a commissioner for purposes of taking evidence in the pending action from a witness who cannot personally attend the court proceeding.(fn12) The commission itself invests the commissioner with power to administer an oath.
A letter rogatory is a request from the court where the action is pending to a court in the country in which the evidence is to be taken. The letter asks that evidence be taken by the foreign court from a named person for use in proceedings in the U.S. court.(fn13) Unlike the notice and stipulation methods, which do not require prior authorization from the U.S. court, the commission and letter rogatory methods require application to the U.S. court in which the action is pending for an order directing the taking of evidence by these methods.
Prior to 1963, U.S. courts generally considered the letter rogatory to be a last resort, and refused to issue one unless the use of the notice or commission methods had been shown to be impossible or impractical.(fn14) The 1963 amendments to F.R.C.P. Rule 28(b) changed this, and the Rule now provides:
Thus, the federal rules no longer prefer or mandate use of one procedure over another and, indeed, permit simultaneous use of more than one procedure. This does not mean, however, that these procedures are equally desirable in all circumstances.It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impractical or inconvenient; and both a commission or a letter rogatory may be issued in proper cases.
Generally, the notice, stipulation or commission procedures are more expeditious than the letter rogatory, which requires execution by a foreign court. Moreover, the testimony obtained via these procedures is usually in a better form for purposes of the U.S. proceeding for which it is sought than the letter rogatory. This is because testimony taken pursuant to the notice, stipulation or commission procedures is taken according to the rules of the U.S. court where the action is pending. Testimony taken by a foreign court pursuant to a letter rogatory, on the other hand, is taken pursuant to the procedures of the foreign court. Especially in...
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