Foreign discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 583-590

HANDLING FEDERAL DISCOVERY

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

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.

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