Foreign discovery

AuthorWilliam M. Audet/Kimberly A. Fanady
Choose Foreign Discovery Method
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
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.
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.
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
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
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.
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

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