Preface

• Pages: xvii-xix

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Preface

One commonly overlooked aspect of international litigation in the

United States is the collection of evidence located outside the United States.

Instead, substantive issues and issues of jurisdiction often take center stage.

And yet, the success of the litigation often depends on the ability of the

parties to secure access to evidence. As the U.S. legal system is unique in

its approach to civil litigation, the collection of foreign evidence for use in

the United States commonly encounters resistance from foreign parties,

courts, and even governments. Consequently, securing such evidence

requires sensitivity to and an understanding of the applicable laws and

norms not only in the United States but also the country where the evidence

or witness is located. The purpose of this book is to discuss those laws and

norms.

The first three chapters of the book are devoted to the application of

U.S. law. Chapter Two sets the stage by discussing the context in which the

discovery request for foreign evidence is made. Many of the concepts

discussed in Chapter Two will be readily familiar to U.S. practitioners.

Although U.S. courts apply their own procedural law to discovery requests

made in the context of U.S. litigation (typically the Federal Rules of Civil

Procedure), there are several international conventions to which the United

States is a party. These conventions, along with their application by U.S.

courts, are discussed in Chapter Three. Some of the common local law

limitations to collecting evidence abroad are discussed in Chapter Four.

These same themes are addressed in the ensuing country-specific chapters.

A discussion of the legal issues relating to the collection of evidence

abroad would be incomplete if it were limited to U.S. law. The application

of the law by U.S. courts presents only half the picture. It is equally

important to understand the laws of the foreign jurisdiction where the

evidence is located. As discussed in this book, many foreign countries have

adopted a restrictive disposition toward discovery requests emanating from

the United States. Chapters Five through Thirteen address the laws of

Belgium, Canada, France, Germany, Italy, Japan, the Netherlands,

Switzerland, and the United Kingdom as they apply to discovery requests

emanating from U.S. civil courts.

This book is the result of the energy, commitment and work of a large

number of individuals for whom an expression of gratitude here is

appropriate but probably insufficient to adequately reflect their efforts. The

authors responsible for the respective chapters are as follows: