Discovery Under International Conventions
DISCOVERY UNDER INTERNATIONAL
There are several international conventions that apply to the collection
of evidence located in one jurisdiction for use in a foreign jurisdiction. The
United States has ratified only two of these treaties: the Hague Convention
on the Taking of Evidence Abroad in Civil and Commercial Matters1 and
the Inter-American Convention on Letters Rogatory2 (and accompanying
Additional Protocol on the Inter-American Convention on Letters
Rogatory). 3 The United States has not ratified the Inter-American
Convention on the Taking of Evidence Abroad or its Additional Protocol.4
A. Hague Evidence Convention
1. Scope of the Hague Evidence Convention
a. Civil and Commercial Matters
The Hague Evidence Convention only applies to “civil and
commercial matters.”5 The term “civil and commercial” is not defined in
the text of the Convention. To complicate matters further, there was little
1. Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted
in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].
2. Inter-American Convention on Letters Rogatory, Jan. 30, 1975, 1438
U.N.T.S. 288, O.A.S.T.S. No. 43, reprinted at 28 U.S.C. § 1781
3. Additional Protocol on the Inter-American Convention on Letters
Rogatory, May 8, 1979, 1438 U.N.T.S. 322, O.A.S.T.S. No. 56, reprinted
at 28 U.S.C. § 1781 [hereinafter Protocol].
4. Inter-American Convention on the Taking of Evidence Abroad, Jan. 30,
1975, 1438 U.N.T.S. 390, O.A.S.T.S. No. 44, reprinted in 14 I.L.M. 328
(1975); Additional Protocol to the Inter-American Convention on the
Taking of Evidence Abroad, May 24, 1984, 1761 U.N.T.S. 342, O.A.S.T.S.
No. 65, reprinted in 24 I.L.M. 472 (1985).
5. Hague Evidence Convention, supra note 1, art. 1.
Obtaining Discovery Abroad
consensus among the drafters as to the meaning of the term. Some
signatories, including the United States and the United Kingdom, have
indicated that the term “civil and commercial” includes all proceedings
that are not criminal.6 Other signatories, however, have indicated an
unwillingness to adopt such a broad interpretation. For example, some
civil law countries would probably not accept a letter of request from a
U.S. tax court.7
Two factors are relevant to the determination of whether a matter is
“civil or commercial”: (1) the involvement of the state as a party to the
litigation and (2) the nature of the underlying claim. Under the first factor,
proceedings involving the state as the plaintiff are generally not considered
“civil or commercial.” 8 For example, a letter of request by a U.S.
government agency to Germany or France would unlikely be considered
“civil or commercial” for purposes of the Convention. 9 Conversely,
bankruptcy cases typically are considered “civil or commercial.”10 Under
the second inquiry, criminal claim always fall outside the scope of the
Hague Evidence Convention, even if the crime is commercial in nature. 11
The application of the Hague Evidence Convention to antitrust cases
remains somewhat unclear. This is because of the difference in the ways
legal systems characterize antitrust. A private antitrust case in the United
States is generally considered to be “civil or commercial.” Consequently,
U.S. courts consider the Hague Evidence Convention applicable to private
6. Report of the United States Delegation to the Special Commission on the
Operation of the Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters, 17 I.L.M. 1417, 1418 (1978)
[hereinafter Delegation Report].
7. Id. For further discussion, see F.A. Mann, Any Civil or Commercial Matter,
102 L.Q. REV. 505 (1986).
8. See, e.g., Switz., Fed. Office of Justice, Int'l Judicial Assistance in Civil
Matters–Guidelines 5 (Jan. 2013) available at www.rhf.admin.ch/etc/
medialib/data/rhf.Par.0064.File.tmp/wegl-ziv-e.pdf [hereinafter Swiss
Civil Matters Guidelines].
9. Delegation Report, 17 I.L.M. at 1419. See also In re Norway,  1 All
10. See, e.g., Pickles v. Gratzon, 55 NSWLR 533 (2002); In re Bedford
Computer Corp., 114 B.R. 2 (Bankr. D.N.H. 1990); Arcalon B.V. v. Ramar
B.V., 28 I.L.M. 1578 (1989); In re Fill, 68 B.R. 923 (Bankr. S.D. N.Y.
1987). This also generally applies for Europe, see Council Regulation (EC)
No 1346/2000 of 29 May 2000 on insolvency proceedings, 2000 O.J. (L
160) 1, pmbl ¶ 2.
11. United Kingdom v. United States, 238 F.3d 1312, 1318 (11th Cir. 2001).