Foreign discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 517-524

14-1

CHOOSE FOREIGN DISCOVERY METHOD TASK 98

TASK 98

Choose Foreign Discovery Method

I. WHAT AND WHY

A. Foreign discovery involves a number of formal

and informal procedures that can help you obtain

witness testimony, documents, or other evidence

from individuals or entities located in foreign

countries.

B. Be forewarned that foreign discovery can be

complex, time consuming, and ineffective.

Many countries view evidence gathering as a job

best done by judicial officers and do not allow

attorneys to do much of it.

II. WHEN

A. Foreign discovery is subject to the same time

limitations as regular discovery, e.g., applicable

discovery cutoffs. See FRCP 26; Task 3.

B. Since foreign discovery delays are routine, it is

especially important to move to obtain foreign

discovery as soon as you determine it is needed.

Early action will:

1. Maximize your time to negotiate and maneuver.

2. Allow you to explore ways to save discovery

costs and eliminate delays.

3. Allow you to pursue other evidence-gathering

paths if discovery proves ineffective.

III. HOW

A. Look before you leap. Discovery procedures in

foreign countries vary widely, can be expensive

and are generally much more limited and

problematic than what you would expect in the

United States. Consider the following ways to

evaluate your options before starting:

1. Consult local attorneys familiar with foreign

discovery.

2. Associate foreign counsel. Obtain lists of

foreign counsel from the Office of Citizens

Consular Services, Room 4817, Dept. of State,

2201 C Street, N.W., Washington, DC 20520.

This office can also send you information

concerning practices to follow in specific

countries and the results of actual discovery

attempts in specific countries.

3. Get advice from the appropriate American

Consulate or Embassy.

B. Explore less expensive or more effective

alternatives to foreign discovery. You might:

1. Ask a person in a foreign country to come

to the United States for a deposition at the

parties’ expense. This can save the expense of

attorneys traveling to a foreign country for the

deposition and will make the deponent subject

to United States discovery rules.

2. Stipulate as to:

a. The location and manner of the discovery

under FRCP 29.

b. Nonstenographic and telephone depositions

with a person in a foreign country under

FRCP 30(b)(2) and 30(b)(7). Caution: Such

stipulations may not be permitted under

some foreign countries’ laws or customs.

C. If you decide to proceed with formal discovery,

such as a deposition or document request, in a

foreign country, choose one of the FRCP 28(b)

procedures discussed below. Your selection will

depend on the type of discovery sought, the

location of the individual, the foreign country’s

treatment of the request, and the likelihood of

voluntary compliance by the recipient of the

request.

1. Proceed under an applicable treaty or

convention. FRCP 28(b)(1). An important

convention to consider is the Hague

Convention on the Taking of Evidence Abroad

in Civil or Commercial Matters (“Hague

Convention”). 28 U.S.C. §1781 sets forth the

Hague Convention, including a list of the

nations that have ratified it. One possibility

under the Hague Convention is the Letter of

Request procedure discussed below.

CHAPTER 14: FOREIGN DISCOVERY

Task 98 Choose Foreign Discovery Method

Task 99 Apply to Obtain Foreign Discovery

Task 100 Oppose Application for Letter of Request

Task 101 File Petition for Domestic Discovery in Aid of

Foreign Proceeding