What you need to know to successfully depose a foreign witness or obtain written evidence under the Hague Evidence Convention.

• Author: Christensen, Christopher R.
• Position: Conning the IADC Newsletters

This article originally appeared in the November 2008 IADC Aviation and Space Law Committee Newsletter.

1. Introduction

   In today's global economy, civil litigation increasingly requires litigants to seek discovery from witnesses located outside the United States. In this regard, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the "Convention") provides a mechanism to obtain such discovery. (1) The use of the Convention, however, requires careful planning as it can present a number of challenges. For example, the process of obtaining discovery outside the United States via a "Letter of Request" can take over one year. Further, the scope of discovery in a foreign country is almost always more limited than that available in the United States. An attorney seeking this discovery by a Letter of Request must keep these constraints in mind because an overbroad request could result in the rejection of the Letter, and there are no procedures for amending a request. Cost is also an important consideration. Although the Convention prohibits States from charging the requesting State for the actual execution of the Letter of Request--this is an expensive undertaking for the requesting party. At a minimum, the requesting party will pay for travel, interpreters, and translating documents. Time, discovery limitations and the cost of executing a Letter of Request should be carefully considered before proceeding under the Convention.

2. An Overview of the Convention

   1. Purpose

      The primary purpose of the Convention is to "reconcile different, often conflictive, discovery procedures in civil and common law countries." (2) Currently, forty-seven States are signatories ("Contracting States") to the Convention. (3) It should be noted that not every signatory state has entered the Convention into force with every other signatory state. (4) For example, currently the United States has entered the Convention into force with all signatory states except the Russian Federation, Bosnia and Herzegovina, and Iceland. Several States have extended the Convention to apply to their territories. (5) as well, such as the United States' extension of the Convention to its territories of Guam, Puerto Rico and the Virgin Islands.

   2. Methods of Obtaining Evidence under the Convention

      The Convention enables litigants to obtain written evidence or depose witnesses located outside the United States by three methods: (1) through a Letter of Request, (2) by an American or foreign diplomatic or consular officer or agent after permission is obtained from the foreign State, and (3) by a private commissioner duly appointed by the foreign State. The Letter of Request is by far the most commonly used method, and as such, it is the only method we will address in this article. The Letter of Request should not be confused with a "Letter Rogatory," which is a similar, but far more cumbersome, method of request used between foreign states that are not signatories to the Convention.

      The Letter of Request is sent from a "Judicial Authority," i.e., court of origin, in the requesting state addressed to a "Central Authority" in the requested State. Each Contracting State designates a Central Authority to receive, process, and assign the Letters of Request to a judicial authority, or "competent authority," within the requested State. Most Contracting States designate their Department of Justice or Ministry of Justice as their Central Authority. (6) The U.S. Department of Justice is the United States' Central Authority. If the Central Authority grants the Letter of Request, it will assign the Letter to a local judicial authority who executes the request.

      As will be discussed in more detail later in this article, the foreign judicial authority has wide discretion over the manner in which the Letter of Request is executed. The scope of discovery and the methods for conducting discovery, including methods of compulsion, will almost certainly be more restrictive in foreign countries than under the liberal discovery permitted under the U.S. Federal Rules of Civil Procedure.

   3. The Letter of Request Process

      The process for obtaining a Letter of Request, executing it and ultimately obtaining the desired discovery is a complicated, costly and time-consuming endeavor. The text of the Convention merely provides the general framework for executing a Letter of Request. Advanced planning is essential.

      1. Time Required

         The time required to execute a Letter of Request varies by country, but you should plan for it to take upwards of twelve months from the time the Letter of Request is submitted to the local judicial authority until the oral testimony or documentary evidence is obtained. The American Bar Association's International Litigation Committee publishes a survey every five years...