Discovery Under International Conventions

• Pages: 41-76

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CHAPTER III

DISCOVERY UNDER INTERNATIONAL

CONVENTIONS

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

[hereinafter IAC].

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

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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, [1989] 1 All

E.R. 745.

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).