South Carolina Lawyer
SC Lawyer, Jan. 2005, #7.
Civil discovery in Foreign Lands
South Carolina Lawyer January. 2005
Civil discovery in Foreign LandsGoing where you're not wanted to get what you don't haveBy James L. RogersPart I in this series of articles on cross-border commercial dispute resolution discussed how a South Carolina plaintiff may initiate litigation or arbitration against a foreign national defendant, either in South Carolina's courts or abroad. The current installment describes the pitfalls that the South Carolina practitioner may confront when attempting to gather evidence abroad for use in South Carolina courts. Since pre-hearing discovery in the arbitration context is typically voluntary, and almost everywhere more limited than discovery in the litigation context, discovery in the arbitration arena will not be addressed in this article.
Attitudes toward civil pre-trial discovery in other countries
South Carolina attorneys undertaking discovery abroad should consider the following: in no other jurisdiction on earth do private litigants have the powerful pre-trial discovery weapons that they have in the United States. The civil law jurisdictions of the world (generally speaking, Continental Europe and many former European colonies, especially in Central and South America), with their roots in the Roman and Napoleonic codes, find America's wide open pre-trial discovery system horrifying. Even in Great Britain, birthplace of our common law legal system, judges consider American pre-trial discovery to be overly burdensome and invasive. E.g. Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp.  A.C. 547 (H.L.)
Compounding foreigners' generalized distrust of our pre-trial discovery system is the fact that American courts usually rely on juries to make determinations of fact, and attorneys in our system are responsible for gathering evidence before trial. In many other (mostly civil law) jurisdictions, the judge is responsible for both gathering pre-trial factual evidence and (odd though it seems to us) deciding questions of fact at trial. A civil law judge, for example, rather than an attorney, typically takes the lead in questioning witnesses at trial. The role of civil law attorneys is to assist the judge in the search for the "truth," in contrast to the emphasis on an adversarial approach in our system.
The absence of a jury for fact-finding in many foreign court systems makes pre-trial discovery, in the opinion of the architects of those systems, unnecessary. After all, where there is no jury, the judge may convene a hearing, take evidence, then adjourn the case for six months or a year while he digests the facts gathered at the hearing. He may then reconvene the hearing after a long delay to take further evidence. This is how many trials take place in civil law jurisdictions, with some trials taking several years, and a series of separate hearings months apart, to be completed.
For the foregoing reasons, South Carolina counsel wishing to undertake discovery abroad should expect to sail into a significant philosophical headwind, based upon the very different attitudes other jurisdictions may have in regard to pre-trial discovery.
With the above warnings in mind, we first address "voluntary" evidence gathering abroad. Typically, fewer legal difficulties are presented when foreign witnesses or document custodians are willing to voluntarily...