Deciphering the Hague Convention: A Primer on Conducting Discovery Abroad

Wednesday, 30 July 2014 19:00 Written by  Bill MacMinn

By William T. MacMinn, Esquire Reprinted with permission from the July 28, 2014 issue of The Legal Intelligencer. (c) 2014 ALM Media Properties. Further duplication without permission is prohibited.

As the world becomes increasingly globalized, lawyers are more than ever involved in litigating matters for or against people and organizations that are involved in disputes within the United States, but are located in foreign jurisdictions. In these circumstances, domestic practitioners likely will need to obtain evidence from sources located in foreign nations with which they have little prior professional experience. For those attorneys who seldom encounter an international issue, conducting discovery abroad can be both confusing and overwhelming, but a brief review of some of the sources governing the process can help alleviate any anxiety associated with pursuing an international claim.

Several methods exist to conduct discovery outside of the United States.  In Pennsylvania the options include the following: 1) a deposition on notice before a person authorized to administer oaths in the place where a deposition is to be held either by local law or United States law (Pa.R.C.P. 4015(b)(1)); 2) a deposition before a person commissioned by the Pennsylvania Court to administer oaths (Pa.R.C.P. 4-15(b)(2)); or 3) a deposition after application to the Pennsylvania Court presiding over the litigation, pursuant to a letter rogatory under Pa.R.C.P. 4015(b)(3) and 42 Pa. C.S. § 5325, or a letter of request, in accordance with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.    If a witness will appear voluntarily the simplest way to conduct discovery, and specifically to depose a witness who is located abroad, is the notice or commission procedure outlined above. Where a party or witness refuses to participate, however, an attorney will need to resort to either a letter rogatory, where the Pennsylvania Court in which a matter is pending makes a formal request to the foreign country’s judicial authority, or a “letter of request” under the Hague Convention. This article focuses on this latter method of international discovery, which liberalizes and streamlines the international discovery process.

The United States ratified the Hague Convention in 1972 with the hope of simplifying the international discovery process and bridging any technical differences between signatory countries. The Convention, codified at 28 U.S.C. § 1781, “allows judicial authorities in one signatory country to obtain evidence located in another signatory country for use in judicial proceedings, commenced or contemplated.” Pronova BioPharma Norge AS v. Teva Pharm. USA, Inc., 708 F.Supp.2d 450, 452 (D. Del. 2010).  Specifically, Article 1 of the Convention permits the judicial authority of a contracting state to “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.”

Each of the fifty-eight contracting states has a designated Central Authority, whose primary task is to receive letters of request and to transmit them “to the authority competent to execute them.” The Convention also dictates what specifically a letter of request should contain, which includes the following: “1) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority; 2) the names and addresses of the parties to the proceedings and their representatives, if any; 3) the nature of the proceedings for which the evidence is required; giving all necessary information in regard thereto; and 4) the evidence to be obtained or other judicial act to be performed.” Where appropriate, letters of request should also identify the persons the inquiring party seeks to depose, the questions sought to be asked, and the documents and property sought to be inspected.

With respect to the domestic procedures necessary to obtain a letter of request, the party seeking discovery need only file a Motion for Issuance of Letters of Request with the court in which the action is pending, attaching the proposed letters of request. Volkswagen of Amer. V. Otto Durr Beteiligungs, GmbH, 37 Pa. D & C.3d 165 n.1 (C.P. Allegheny Cnty. 1984) (“If plaintiff were to proceed under this convention, this court would issue a letter of request directed to an appropriate official authority in the German government…State courts are bound by the Hague Convention under the Supremacy Clause of the United States Constitution.”). While the party seeking the application of the Hague Evidence Convention procedures bears the burden of persuading the trial court of the necessity of such procedures, “that burden is not great…since the Convention procedures are available whenever they will facilitate the gathering of evidence by means authorized in the Convention.” Tulip Computers Int’l. B.V. v. Dell Computer Corp., 254 F.Supp.2d 469, 474 (D. Del. 2003) (quoting Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for the South. Dist. of Iowa, 482 U.S. 522, 541 (1987)).

Once the local court grants the motion, it then directs that the Letters of Request be transmitted to the designated Central Authority in the foreign contracting state where the documents or witnesses are located. If the letter is approved in the foreign central authority, the letter of request will move to the appropriate judicial authority in that country, which will then assist in obtaining answers to interrogatories, production of documents, and other discovery requests. Although the Hague Convention permits the judicial authority which executes the letter of request from the United States to utilize its own discovery procedures, Article 3(i) permits the party in pursuit of international discovery to request “that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution.” To the extent possible, the Hague Convention requires that Letters of Request be executed expeditiously.

The Hague Convention itself is a clearly worded, readable document that breaks down international discovery procedures for its contracting states. It was designed to efficiently facilitate discovery abroad.  While other methods for conducting discovery abroad do exist, the techniques under the Hague Convention are accessible to even those practitioners who only occasionally practice in the international arena.

William MacMinn is Managing Partner with Antheil Maslow & MacMinn,   His practice focuses primarily on Commercial Litigation, Personal Injury, Products Liability, Employment Litigation, Estate Litigation and Real Estate law. To learn more about the firm or William MacMinn, visit www.ammlaw.com.  

Last modified on Wednesday, 30 July 2014 19:09
Bill MacMinn

Bill MacMinn

Bill concentrates his practice in the area of litigation, including Commercial Litigation, Personal Injury, Products Liability, Employment Litigation, Estate Litigation, Real Estate, and Arbitration. He represents a broad spectrum of individuals, corporations and institutions in commercial, employment litigation, collection, construction and personal injury actions. He has expertise in a wide variety of venues in Bucks and surrounding counties, and in the United States District Court. Bill also has extensive experience in Alternate Dispute Resolution forums, including participation in the American Arbitration Association, private arbitrations and private court systems. He is frequently appointed as arbitrator.

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