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

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

I. 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.

II. An Overview of the Convention

A. 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.

B. 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.

C. 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 that compiles U.S. lawyers' experience with the Convention. The latest survey found that approximately one third of Letters of Request took twelve or more months to obtain oral or documentary evidence. (7)

2. Retain Foreign Local Counsel

Prior to drafting a Letter of Request, the requesting party should retain foreign local counsel, preferably in the area where the witness or evidence is located. Foreign local counsel should be fluent in English and the language of the foreign state. They should have experience in international law, especially with the Convention. In addition, foreign local counsel should be familiar with the local procedural rules in the jurisdiction where the evidence is to be obtained because Article 9 of the Convention states that the foreign judicial authority "shall apply its own law as to the methods and procedures to be followed." (8)

A draft copy of the Letter of Request should be sent to foreign local counsel for review prior to filing with the U.S. court. The foreign local counsel should review the draft to ensure that all requests contained within the letter are compatible with foreign law. The Convention has no provision for amending a Letter of Request once it has been sent to the Central Authority. presumably, a second Letter of Request would have to be sent in lieu of an amended request.

3. Model Letter of Request

To properly draft the Letter of Request, counsel should follow the model Letter of Request provided as an attachment to 28 U.S.C. [section] 1781. (9) The court in which the case is pending also may provide a model Letter of Request. Any model letter used must comply with the requirements of Article 3 of the Convention. Specific advice on the types of evidence to be requested and the methods for obtaining it will be discussed in section III.

4. Translation Requirements

After the final draft is completed, it must be translated into the language of the foreign requested State pursuant to Article 4 of the Convention. Counsel should determine whether the requested State has made any declarations regarding the language to be used in the Letter of Request. (10) Any changes to the language requirement will be listed under Article 4 or 33. The translation should contain a signed and notarized certificate of accuracy.

Once the translation is complete, counsel should send notice to all parties to the litigation, stating that a Letter of Request is to be filed. The notice should include a copy of the Letter of Request and provide a reasonable time period for all parties to review the request for objections, prior to filing with the court.

5. Filing the Letter of Request

After notice has been provided to all parties, the Letter of Request is ready to be filed with the court. Article 1 of the Convention states that a judicial authority within a Contracting State may send a Letter of Request "in accordance with the provisions of the law of that state." (11) In the United States, a party may file the Letter of Request with the court where the case is pending under Federal Rule of Civil Procedure 28(b)(1)(B). At least two copies should be provided for the Judge to sign--one for the party to keep in its file and one to be mailed to the foreign Central Authority. U.S. courts may require a signed copy to be kept on file, in which case three copies should be signed. If the Judge approves the Letter of Request, he or she must sign and affix the seal of the court per 28 U.S.C.A. [section] 1781. Courts also may bind the Letter of Request with ribbon or other sealing device to prevent tampering.

Depending on the protocol of the U.S. court or the individual judge's preference, the U.S. court might mail the signed Letter of Request directly to the foreign Central Authority or it may require the requesting counsel to mail it with the court's return address.

6. Executing the Letter of Request

Under Article 5, the foreign Central Authority will either grant the Letter of Request or, if found to be incompatible with the Convention, will "promptly inform" the requesting authority (court of origin), "specifying the objections to the Letter." (12) Presumably, the requesting party will be allowed to make the necessary changes and resubmit the Letter of Request.

Article 12 provides only two instances where a Central Authority may completely refuse execution of a Letter of Request: (1) if the judiciary is not the entity that executes Letters of Request in the particular country, or (2) if the requested State "considers that its sovereignty or security would be prejudiced thereby." (13)

When read together, Articles 5 and 12 provide that the Central Authority reviews the Letter of Request for compatibility with the Convention and the two Article 12 conditions, and not necessarily for compatibility with foreign procedural law, which is left to the foreign judge under Article 9. (14)

However, actual practice has shown that the Central Authority (depending on the country) may take a larger role in the review process and determine whether the request is compatible with foreign procedural law. The Central Authority may then either deny the entire request if incompatible, or grant the request and order the local judge to execute only the portions that comport with the foreign procedural law.

Regardless of which approach the Central Authority takes, Article 13 requires that the requesting authority be notified of any denials or partial denials of execution. If the Letter of Request is executed, Article 9 requires it to be done so expeditiously." (15)

Once the foreign judge is assigned the Letter of Request from the Central Authority, he or she will notify foreign local counsel (or U.S. counsel if no foreign counsel has been retained) of the time and place of the deposition or proceeding. However, counsel must include the request for notification in the Letter of Request, pursuant to Article 7. (16)

After the deposition is completed, or after the requested evidence is obtained, Article 13 requires the foreign Central Authority to notify the requesting authority (court of origin) whether the Letter of Request was successfully executed, or whether any parts were not executed. (17) Typically, the foreign Central Authority will send the requesting authority a "notice of execution" and any other requested documents, such as court transcripts (if not already provided to counsel). Finally, the requesting authority forwards all the documents to counsel.

III. What Evidence May be Requested and How to Obtain It?

A. Pretrial Discovery

Although the Convention itself permits a generous scope of discovery, (18) foreign countries often have far narrower pre-trial discovery than the United States. Article 9 of the Convention allows the foreign judicial authority to "apply its own law as to the methods and procedures to be followed." (19) In this regard, the foreign State can significantly narrow the scope of discovery depending upon its procedural law. For instance, civil law countries typically do not permit pre-trial discovery by private litigants because the Judge handles all pre-trial matters. Although Article 9 also states that a request should be granted unless it is "incompatible" with the foreign law or "impossible" to comply with, (20) experience shows that some of the traditional U.S. discovery procedures may be deemed "incompatible" or "impossible" by the requested foreign State. (21)

B. Declarations

In addition, Article 23 permits any Contracting State to declare that a request for pre-trial discovery not be executed. (22) The vast majority of Contracting States have declarations limiting or refusing pre-trial discovery. Even if the requested State does not have an Article 23 declaration, Article 1 warns that "a Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated." (23)

Any requests for documents or requests to have witnesses produce documents at a deposition or hearing must be carefully crafted to avoid violating Article 1 and/or to bypass an Article 23 declaration.

C. Privilege and Blocking Statutes

Further, under Article 11, all document requests and witness testimony is subject to any privilege recognized both in the requesting State and the requested State. (24) Many foreign countries' privacy laws offer far greater protection than U.S. privacy laws. Certain countries, like France, have enacted "blocking statutes" that prohibit the disclosure, copying, inspection or removal of documents located in that country if requested by a foreign court.

D. Measures of Compulsion

Additionally, Article 10 requires the foreign judicial authority to "apply the appropriate measures of compulsion in the instances and to the same extent as are provided by its internal law." (25) Usually, the "measures of compulsion" permitted by foreign law do not have the same degree of compulsion as in the United States. Often, the only means of compulsion in the foreign State is for the Judge to request the witness' voluntary compliance.

E. Costs

Articles 14 and 26 provide that the requested State shall charge no taxes or costs for executing a Letter of Request. (26) However, the requested State has the right to require reimbursement from the requesting State for any fees paid to experts, interpreters, costs incurred by the use of any special procedures requested and any costs that are constitutionally mandated by the requested State. In the United States, these costs will be born by the requesting party, not the U.S. Court. Additionally, the requesting party will pay for travel, foreign local counsel and the costs of translating the Letter of Request and transcripts.

F. Practical Considerations for Taking Depositions

The following is a list of considerations for counsel to make when drafting a Letter of Request for taking the deposition of a foreign witness:

* Depositions typically proceed under foreign local law and language

* Oaths may or may not be administered

* Time limits for depositions tend to be less than the seven hours allowed under the Federal Rules of Civil Procedure

* Audio or video recordings are often subject to local privacy laws or the court may require consent by all parties

* Questions may have to be submitted with the Letter of Request

** Courts are often concerned about overly "aggressive" questioning tactics

** The Judge may ask all the questions and may or may not allow cross examination or follow-up questions

* A local court reporter and/or an English speaking court reporter may be needed

* Interpreters will be needed, unless the U.S. counsel speaks the language of the foreign jurisdiction (not necessarily the same language as the foreign witness).

* The Judge may appoint both the court reporter and the interpreter

* Verbatim transcript may or may not be permitted

IV. Conclusion

Although seeking discovery of foreign witnesses or evidence via the Convention can be complicated, costly and time-consuming, it may provide the only method for effectively obtaining such testimony and evidence. The Convention provides the general framework for obtaining evidence from abroad, but the foreign requested State has broad discretion to execute a Letter of Request in conformity with its internal discovery procedures. The laws of the foreign State must be carefully evaluated for declarations to the Convention, privileges, blocking statutes, customs and local discovery and procedural rules. Failure to understand these constraints could result in a rejection of the Letter of Request. Even worse, if the Letter is granted and these constraints are not realized until after arriving in the foreign State, the party could lose time, money, and most importantly the opportunity to obtain the evidence. Through careful planning and consultation with experienced counsel in both the requesting and receiving State, the Letter of Request process can be accomplished with few obstacles or objections.

(1) Hague Evidence Convention 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231, available at http://www.hcch.net/index_en.php?act-conventions.text&cid=82.

(2) See U.S. Department of State's Home Page, under Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, http://travel.state.gov/law/info/judicial/judicial_689.html.

(3) The following States are currently signatories to the Hague Evidence Convention:
   Argentina, Australia, Barbados, Belarus,
   Bosnia and Herzegovina, Bulgaria, China,
   Cyprus, Czech Republic, Denmark, Estonia,
   Finland, France, Germany, Greece, Hungary,
   Iceland, India, Israel, Italy, Kuwait, Latvia,
   Liechtenstein, Lithuania, Luxembourg,
   Mexico, Monaco, Netherlands, Norway,
   Poland, Portugal, Romania, Russian
   Federation, Seychelles, Singapore, Slovakia,
   Slovenia, South Africa, Spain, Sri Lanka,
   Sweden, Switzerland, Turkey, Ukraine, United
   Kingdom of Great Britain and Northern
   Ireland, United States of America, and
   Venezuela.


An updated list of Contracting States can be found on the HCCH Home Page at http://www.hcch.net (follow the "Welcome" link on the introduction page; "Conventions"; "Ail Conventions"; scroll to Convention No. "20"; under the section "For this Convention" follow "Status Table" hyperlink on the right side of webpage). Note that the "non-member" states (Barbados, Kuwait, Liechtenstein, Seychelles and Singapore) are signatories (or parties) to this particular Convention, but are not members of the Hague Conference on Private International Law (the entity that develops the various Hague Conventions).

(4) For an updated PDF spreadsheet listing each signatory State's entry of force with other signatory states, follow the "Acceptances of Accessions" link at http://www.hcch.net/index en.php?act=conventions.text&cid=82.

(5) Currently, only the United States, China, France, Netherlands and the United Kingdom have extended the Convention to their territories. Contracting States that have extended the Convention to territories are listed under the "Ext." column on the Status Table on the HCCH Home Page at http://www.hcch.net/index_en.php?act=conventions.status&cid=82.

(6) An updated list of each Contracting State's Central Authority can be found under the "Auth" column on the Status Table at http://www.hcch.net/index_en.php?act-conventions.status&cid=82.

(7) See American Bar Association, International Litigation Committee Section of International Law, Questionnaire on Experience Under the Hague Evidence Convention, Dec. 16, 2008, at 4, available at http://meetings.abanet.org/webupload/commupload/IC756000/ newsletterpubs/Hague.Evidence.Survey.Final.Compilation.pdf; see also Overview of Survey of Experience of U.S. Lawyers with the Hague Evidence Convention Letter of Request Procedures, available at http://meetings.abanet.org/webupload/commupload/ IC756000/newsletterpubs/Hague.Special.Commission--Position.papers.pdf.

(8) Hague Evidence Convention, supra note 1, art. IX.

(9) HCCH provides a model Letter of Request that can be completed online and printed or downloaded at http://www.hcch.net/index_en.php? act=publications.details&pid=3309&dtid=2.

(10) Declarations regarding language requirements can be found for each country under the "Res/D/N" column under the Status Table at http://www.hcch.net/index_en.php?act=conventions.status&cid=82.

(11) Hague Evidence Convention, supra note l, art. I.

(12) Id. art. V.

(13) Id. art. XII.

(14) Id. art. IX.

(15) Id.

(16) Hague Evidence Convention, supra note 1, art. VII.

(17) Id. art. XIII.

(18) As mentioned, Article 12 places barriers to execution only if the judiciary is not the appropriate governmental entity to execute requests or if a requested State's sovereignty or security would be prejudiced. Article 5 allows a Letter of Request to be rejected if it does not comply with the provisions in the Convention.

(19) Id. art. IX.

(20) Id.

(21) See generally supra note 7.

(22) Hague Evidence Convention, supra note 1, art. XXIII. Article 23 declarations (and any other declarations) can be round for each country under the "Res/D/N" column under the Status Table at http://www.hcch.net/index_en.php?act=conventions.status&cid=82.

(23) Hague Evidence Convention, supra note 1, art. I.

(24) Id. art. XI.

(25) Id. art. X.

(26) Id. arts. XIV, XXVI.

Christopher R. Christensen is a partner with Condon & Forsyth LLP in New York CIO;. Chris concentrates his practice in the area of major aviation accident litigation, airline and general aviation claims, product liability and commercial litigation. He has extensive experience representing foreign and domestic airlines in major aviation accident investigations and litigation, including the litigation arising from the September 11, 2001 terrorist attacks.

Justin Schmidt is an associate at Condon & Forsyth LLP and concentrates on airline liability claims and litigation.
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Author:Christensen, Christopher R.; Schmidt, Justin
Publication:Defense Counsel Journal
Date:Apr 1, 2009
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