Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters[dagger], The

Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters[dagger], The

Kolar, Robert D

I.

INTRODUCTION

The Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters governs discovery in United States litigation to some extent when a party or third party to the suit is a foreign entity. This Convention purports to resolve differences between liberal United States discovery rules and the more restrictive rules of foreign nations. The Hague Convention on Evidence also proposes to codify the manner and means by which depositions on notice and commission may be taken before consuls and court appointed commissioners. Other purposes include providing a means for securing evidence for the court where the action is pending and preserving favorable, less restrictive discovery practices when those are delineated in the laws, rules and procedures of individual countries or international treaties and conventions.

Historically, differences in the various legal systems around the world have created barriers to discovering evidence located outside the jurisdiction where the cause of action is pending. For instance, in civil law systems, the judge controls presentation of the evidence. “Pretrial” discovery does not exist, especially in countries such as Germany and Japan. In these nations, the judge will gather evidence over time through a series of hearings and written acts. The evidence is then presented in piecemeal fashion rather than in one long trial. Furthermore, in civil law countries, witnesses are not prepared. Instead, the lawyer will nominate a witness for a particular topic and then argue the significance of that testimony. In Germany, contacting non-party witnesses is actually unethical. Under the circumstances, a lawyer is prohibited from preparing witnesses, and cannot even contact other witnesses to determine what they might say. Even if the lawyer wants to prepare his or her own witness, however, such preparation would ill serve a lawyer’s case in Germany, since the testimony of prepared witnesses would be given little, if any, weight by the judge.

II.

THE SPECIFICS

Similar to the Hague Convention on Service of Process, the Hague Convention on Evidence requires that a Central Authority be designated to receive Letters of Request, which are described more specifically below. Signatories have issued declarations setting forth the “Central Authority.” These declarations also state whether the country has excluded the application of various portions of the Hague Convention, namely Articles 23 or 33. To determine whether a country has objected to these Articles, one should consult the declarations filed by that specific country.

Although the Hague Convention on Evidence articulates procedures by which foreign evidence can be obtained, the Convention is not the exclusive means for obtaining foreign evidence. In that regard, the Hague Convention on Evidence, as discussed in Societe Nationale Industrielle Aerospatiale v. U.S. District Court for Southern District of Iowa,1 is the subject of additional focus elsewhere. The Nationale Industrielle case, for example, examined whether the Hague Convention is the exclusive vehicle for obtaining discovery from foreign litigants or whether discovery can be pursued under the Federal Rules of Evidence. It also examined other sources of relief to alleviate burdensome discovery.

Under the Hague Convention and Federal Rules, willing witnesses can be deposed, but only under specific conditions. Some countries require case-by-case permission from the foreign central authority before a voluntary deposition can be taken.2 Article 17 of the Convention allows court appointed officers to take depositions but the restrictions are similar to those imposed on consular officers. Some countries, such as Denmark and Portugal, prohibit depositions by court appointed commissions, while the United Kingdom approves depositions based on reciprocity. When arranging consular depositions, the lawyer generally deals directly with the American Embassy for that country. The U.S. consular officer will administer the oath. The counsel who requests the deposition must arrange for the witness’s transportation and other amenities, and must provide a translator if necessary. It should be noted that many countries do not have court reporters or interpreters; the duty to supply these services falls on the attorney requesting the deposition.

Several issues should be considered generally when planning to take depositions and testimony outside the United States. First, it is highly recommended that the deposition be videotaped. Because the individual most likely resides outside the subpoena power of the court, videotaped testimony will be easier for the judge or jury to understand. Furthermore, the videotape is a better method of presenting the testimony. Once a decision is made to videotape the deposition, counsel should verify that the tape is formatted for play in the United States. Converting a video to the format used in the United States can be difficult and expensive, but many services will format for the United States. If no such option exists, a videographer might accompany counsel or counsel could bring a video camera and tapes from the United States to ensure that the deposition videotape is properly formatted. Evidence may be compelled under the Hague Convention by using a Letter of Request. A Letter of Request is a document that issues under the authority of the United States courts, asking the foreign state to allow evidence to be produced under the authority of the United States judicial system but pursuant to the foreign state’s procedures and limitations.3 If a nation has signed the Hague Convention on Evidence, it is required to honor the request unless its sovereignty or security is prejudiced or the request is not a function of its judiciary.4 The United States court where the action is pending will send the request to the foreign central authority to compel production of the evidence or testimony. For this reason the Request should be translated into the official language of the foreign country. The Letter of Request may seek a specific method or procedure as well. If the procedure is compatible, the Request for the specific method should be granted. The Hague Convention on Evidence does allow for some flexibility in procedures and discovery. However, the internal statutes, cases, and procedures of the foreign nation can limit that flexibility.

In addition, one must be careful about the specific country in which the documents may be located. Many countries, except the Czech Republic, Israel, the Slovak Republic and the United States, have objected to portions of Article 23 regarding the production of pre-trial discovery. Article 23 states: “[a] Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purposes of obtaining pre-trial discovery of documents as known in Common Law countries.”

In this regard, a few countries have enacted “blocking statutes” that make it illegal to produce documents or give testimony.5 A foreign entity under compulsion to comply with discovery can apply for relief based on its own country’s “blocking statute” (which is intended to block the broad discretion of United States discovery). A district court either will require the party to comply or issue a protective order based on the statute. Although not mandatorily enforceable, the district court must consider the foreign law when deciding whether or not to compel compliance.

The French statute that forbids a party from discovering information or documents from a French national6 is typical of a “blocking statute.” The United States courts have determined, however, that information held by a French national is discoverable despite the blocking statute. In a footnote within the Aerospatiale text, the Supreme Court noted that these statutes “do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate the statute.”7 In fact, the Court observed that such an exercise of French legislation would be tantamount to dictating to a United States district court judge what he might or might not do.8 The lesson to be learned from these dueling discovery practices is not that one statute or practice predominates over the other, but that such practices should be heeded when considering whether to apply the Hague Convention on Evidence or the Federal Rules. On the other hand, if a witness or individual producing documents is uncomfortable with giving testimony or documents because of that nation’s laws, the deposition and documents might be taken in another, perhaps adjoining, country that has not enacted such restrictive laws.

To obtain the Letter of Request, one must move the United States court where the action is pending to issue the Letter of Request pursuant to Rule 28(b).9 The Letter must specify the evidence to be obtained or the other judicial act to be performed.10 Additionally, the Letter must be written in the language of the executing authority or accompanied by a certified translation into that language.11 The court will determine whether issuing the Letter of Request “is reasonably calculated to lead to the discovery of admissible evidence”12 and will issue the Letter on terms that are “just and appropriate.”13

In Societe Nationale Industrielle Aerospatiale v. U.S. District Court for Southern District of Iowa,14 the Supreme Court held that if a district court had personal jurisdiction over a foreign litigant, the Hague Convention procedures were not the exclusive means for obtaining discovery. The Supreme Court reasoned that the language of the Hague Convention was permissive in nature; thus its terms were not mandatory. As stated in the Convention, its purpose was to “facilitate the transmission and execution of Letters of Request” and to improve cooperation in judicial civil or commercial matters.15 Furthermore, if the Supreme Court had determined that the Hague Convention provided the sole means for obtaining foreign discovery, the sovereignty of United States courts would have been greatly undermined. Instead, the Hague Convention provides another tool to facilitate the gathering of evidence.

The United States Supreme Court particularly observed that the preamble to the Hague Convention on Evidence does not speak in mandatory terms nor prescribe transnational discovery to the exclusion of other existing practices. The Convention does not require nations to institute laws that implement its procedures nor does it require signatory nations to change their current practices to conform to Hague Convention standards. Reinforcing its opinion that the Convention is permissive rather than mandatory, the Supreme Court noted that the “absence of any command that a contracting state must use Convention procedures when they are not needed is conspicuous.”16 The Court pointed to the first paragraph of Article 1 of the Convention for support. That article states:

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.17

When determining whether discovery should proceed under the Hague Convention or the Federal Rules of Evidence, the United States courts will engage a balancing test that considers the particular facts of the case, the sovereign interests involved, the burden placed upon the foreign litigant by the proposed discovery, and the likelihood that the Convention would constitute an effective discovery device.18 The litigant seeking to use the Hague Convention rather than the Federal Rules of Evidence must demonstrate why the balancing test weighs in favor of using the Convention rather than the Federal Rules.19

When articulating the balancing test, the Supreme Court cited the Restatement (Third) of the Foreign Relations Law of the United States.20 The Court identified relevant factors to be used in determining the outcome of any balancing test. Those factors include: the importance to the litigation of the documents/information requested; the specificity of the request; whether the information originated in the United States; the availability of alternative means to obtain the information; and the effects of noncompliance on the United States interests and the interests of the foreign country.21

Once it allows service of process, a court generally will permit limited discovery on the issue of jurisdiction without resorting to the Hague Convention. The purpose here would be to determine whether the court has jurisdiction over the defendant. District courts have stated that the Hague Convention should be used in situations where the evidence must be adduced abroad, such as foreign depositions or facility inspections.22

When obtaining evidence from a foreign affiliate, the Federal Rules of Evidence most likely will apply. The test for obtaining the information under the Federal Rules is whether the information is in the party’s custody or control.23

If an attorney is seeking discovery from a foreign party, that party can seek a protective order from the court to proceed under the rules established in the Hague Convention on Evidence.24 The court will use the factors and balancing test previously described in order to determine whether it should issue such a protective order or proceed under the Federal Rules. To guard against such a protective order, litigants should ensure that the discovery sought is narrowly tailored and targeted at obtaining discreet and material information. The second factor in the balancing test, the sovereignty of the other nation, often necessitates a review of that nation’s privacy and privilege laws to ascertain whether noncompliance with the requested discovery would undermine the interests of the United States. The last factor of the balancing test, relating to whether the Hague Convention’s method would be efficient and productive, necessitates examining the time and expense involved when proceeding under the Hague Convention as compared to the Federal Rules. The courts also will consider whether the other nation will allow such discovery methods.

If seeking discovery from a non-party, a lawyer should proceed under the rules set forth in the Hague Convention. For discovery from a non-party located outside of the United States, Eetters Rogatory or Letters of Request may be used.25 The lawyer might also contact the Office of International Judicial Assistance at the Department of Justice in Washington, D.C.26

If the Hague Convention cannot be used, the lengthy process of obtaining a Letter of Request should be used to compel a nonparty foreign witness. The foreign court has complete discretion in determining whether the Letter of Request will be executed, however, placing the requesting party at the mercy of the foreign court. Given this situation, the form of a Letter of Request should be examined.

Under Article 7, the Letter must state that the requesting party wants to be notified of the time and place of the proceedings. Using Article 9, the executing authority then will apply its own law to the methods and procedures to be followed. In common law countries, the methods are similar to those used in the United States: documents are requested and produced. In civil law countries, facts are adduced through various hearings rather than through depositions and document productions. If the requesting party wishes to follow the American system (administration of an oath followed by verbatim transcript), this procedure must be specially requested pursuant to Article 9 in the Letter of Request. The executing authority must make a substantial effort to comply, but need not fully comply with the Request. In addition, Article 11 provides for the assertion of a privilege against providing evidence.

If the discovery is too burdensome or if a lawyer wishes to raise a privilege that the court refuses to accept, the penalty for non-compliance may be a sanction that is just as burdensome. In such a case, a “trick” is available by which to obtain Judicial Review of the ruling without assuming the risk that if one does not eventually prevail the case will be lost. The scenario begins when the court compels discovery. When the party refuses to comply, the court will issue a contempt citation, which the party will challenge by taking direct appeal of the contempt ruling. Thus, an interlocutory appeal can be heard on this discovery matter once the citation for contempt has issued. Any party wishing to obtain relief from discovery or wishing Judicial Review can pursue this “trick.”27

It should be noted that in many civil law nations, experts are treated rather differently than in the United States. Instead of seeking out an expert who will provide favorable testimony, the judge usually will choose the expert from an official list. The lawyers will supply the necessary information to that expert and instruct him or her on the facts to assume or to investigate, framing any questions the court wishes to hear as well. Although the parties can witness some of the expert’s activities, such as interviewing a witness or reviewing an accident scene, other activities remain private. The expert can question either party and any witnesses to obtain evidence. Once the expert submits his or her findings, the court will determine the significance of those findings. The court can then question the expert or require supplemental findings as well.

If a lawyer wishes to use a foreign expert for purposes of his or her own litigation in the United States, the lawyer must fully brief the expert on what to expect from discovery. This responsibility includes informing the expert of the documents he will need to produce and the cross-examination to expect from opposing counsel. Foreign experts typically are not prepared for the onslaught of American discovery; it is necessary to inform them of these procedures so they can comply.

III.

PRACTICE SUGGESTIONS

The following are compressed practice hints for obtaining evidence, especially when litigation involves foreign parties:

1. Narrowly tailor discovery requests to the issues presented in the case. If the defendant is contesting personal jurisdiction, limit discovery to the issue of jurisdiction, proceed under the Federal Rules, and move for a decision regarding jurisdiction prior to attempting any further discovery.

2. If objections are lodged against discovery requests, attempt to resolve them through discussion. Many times foreign litigants will wish to avail themselves of the benefits of the Federal Rules. In that event, demonstrate good faith, avoid Rule 37 sanctions and investigate the availability of a counterclaim against the United States entity.

3. If a deposition must be taken abroad, determine if the witness is willing and investigate whether the foreign country has a prohibition against taking such a deposition. If so, the deposition can proceed under the Federal Rules by stipulation, notice or commission. If the deposition will be taken in another country, make sure it is videotaped and that the videotape is formatted for viewing in the United States.

4. If proceeding under the Hague Convention, seek particular documents rather than “all documents under the party’s control.” For example, do not lodge a blanket request for all correspondence; rather, seek “all correspondence from and between Party A and Party B containing dates relating to a particular insurance policy number.” Also, seek only documents that exist rather than potentially existing documents.

5. A Letter Rogatory should be used if one cannot proceed under the Hague Convention on Evidence. A lawyer should proceed under the Hague Convention for non-party witnesses and document productions, when possible. A Letter Rogatory should be used in those instances where the nation in which the individual or entity is located is not a signatory to the Hague Convention on Evidence.

6. If the discovery is too burdensome, one can apply for relief. If the court has applied the Federal Rules of Evidence, a party can move for the application of the Hague Convention on Evidence. Based on the balancing test and additional factors, the court will determine whether the Federal Rules or the Hague Convention will apply. If the lawyer represents a foreign entity and wishes to avoid broad American discovery, the lawyer should file for a protective order and seek to follow the rules articulated in the Hague Convention on Evidence. Prior to any hearing on the motion, the lawyer should work with opposing counsel to narrow the scope of any discovery requests in order to achieve greater manageability and precision.

7. If a litigant seeks relief for a particular set of discovery, an interlocutory appeal can be pursued. If the court compels a litigant to comply with the discovery and the litigant fails to do so, precipitating a contempt citation, the litigant can appeal the contempt citation on these discovery matters.

IV.

CONCLUSION

Overall, the basic underpinnings of the Hague Conventions on the Service of Judicial and Extrajudicial Papers Abroad and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters seek to create a minimal level of compliance for all signatory nations when taking discovery. By coming together under the auspices of the Hague Conventions, the nations implicitly recognize a need to be sensitive to other cultures and other laws. As Justice Stevens noted in the Aerospatiale majority opinion, “American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or location of its operations, and for any sovereign interest expressed by a foreign state.”28 He also cautioned that the American courts should be vigilant in protecting foreign litigations from “the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position.”29

[dagger] Submitted by the authors on behalf of the FDCC Intelleetual Property Section.

1 482 U.S. 522 (1987).

2 See HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, PRACTICAL HANDBOOK ON THE OPERATION OF THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS (1984).

3 See Hague Convention, art. 1, 9.

4 Id., art. 1, 3.

5 See Hague Convention, art. 12.

6 See 6 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE [sec] 28.16 (3d ed. 1997).

7 Aerospatiale, 482 U.S. at 544, n.29.

8 Id.

9 Laura W. Smalley, How to Conduct International Discovery, 71 AM. JUR. TRIALS 1 [sec] 33 (1999) [hereinafter Smalley]; FED. R. CIV. P. 28(6).

10 Smalley [sec] 31; Hague Convention, art. 3(d).

11 Smalley [sec] 32; Hague Convention, art. 4.

12 Smalley [sec] 33 (quoting 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE CIVIL [sec] 2083 (3d ed. 1999)).

13 Smalley [sec] 31; Hague Convention, art. 3(d).

14 Aerospatiale, 482 U.S. 522 (1987).

15 Id. at 534.

16 Id. at 535

17 See Hague Convention, art. 1.

18 See Aerospatiale, 482 U.S. at 523; see also Hague Convention, art. 1.

19 See generally, Aerospatiale, 482 U.S. at 547.

20 RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (Revised) [sec] 437(1)(c) (Ten. Draft No. 7, 1986) (approved May 14, 1986).

21 See Aerospatiale, 482 U.S. at 544, n.28.

22 See generally, Work v. Bier, 106 F.R.D. 45, 48 (D.D.C. 1985); Tulip Computers Intern. B.V. v. Dell Computer Corp., 2003 WL 1491670 (D. Del. 2003); Aerospatiale, 482 U.S. at 538.

23 FED. R. CIV. P. 34(a).

24 Hague Convention, art. 11.

25 See 22 C.R.F. [sec] 92; FED. R. CIV. P. 28(b).

26 U.S. Department of State, Int’l Judicial Assistance, 2201 C Street NW, Washington, D.C. 20520, also available at http://www.state.gov/s/l/c3561.htm.

27 See. e.g., Bicek v. Quitter, 350 N.E.2d 125 (Ill. App. Ct. 1976).

28 Aerospatiale, 482 U.S. at 546.

29 Id.

BIBLIOGRAPHY

In addition to the actual texts of the Hague Conventions, the following sources may prove helpful:

1. http://travel.state.gov/hague_service.html.

2. Alexandra Amiel, Recent Developments in the Interpretation of Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 24 SUFFOLK TRANSAT’L L. REV. 387 (Summer 2001).

3. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

4. Glenn P. Hendrix, Service of Process Abroad, 34 INT’L LAW 580 (Summer 2000).

5. Laura W. Smalley, How to Conduct International Discovery, 71 AM. JUR. TRIALS 1 (1999).

Robert D. Kolar is a partner in the Chicago office of Tressler, Soderstrom, Maloney & Priess. He received his undergraduate degree from Roosevelt University and his degree in law from John Marshall Law School. Mr. Kolar is admitted to practice before the United States District Court for the Northern District of Illinois, as well as several other District Courts, the United States Court of Appeals for Seventh Circuit, the United States Supreme Court, and the United States Court of Customs and Patent Appeals. He is a member of the American, Illinois and Chicago Bar Associations, Federation of Defense & Corporate Counsel, International Association of Defense Counsel, Defense Research Institute; and Illinois Association of Defense Trial Counsel. Mr. Kolar has also served at the FDCC Litigation Management College.

Katherine L. Haennicke is an associate in the Chicago office of Tressler, Soderstrom, Maloney & Priess. She received her B.A. from Knox College and her J.D., cum laude, and LL.M. in International Business and Trade from the John Marshall School of Law. Ms. Haennicke is admitted to practice in Illinois and is an active member of the American, Illinois and Chicago Bar Associations and the Defense Research Institute.

Copyright Federation of Defense & Corporate Counsel, Inc. Summer 2003

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