The Hague Convention on Taking Evidence

Abroad in Civil or Commercial Matters

 

Robert D. Kolar

Katherine L. Haennicke

 

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 national[6] 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, Letters 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]


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).


APPENDIX A

CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)

 

The States signatory to the present Convention,

Desiring to facilitate the transmission and execution of Letters of Request and to further the accommodation of the different methods which they use for this purpose,

Desiring to improve mutual judicial co-operation in civil or commercial matters,

Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

 

 

CHAPTER I – LETTERS OF REQUEST

 

Article 1

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the 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.

 

A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.

 

The expression "other judicial act" does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.

 

Article 2

A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organize the Central Authority in accordance with its own law.

 

Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.

 

Article 3

A Letter of Request shall specify-

a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;

b) the names and addresses of the parties to the proceedings and their representatives, if any;

c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;

d) the evidence to be obtained or other judicial act to be performed.

Where appropriate, the Letter shall specify, inter alia

e) the names and addresses of the persons to be examined;

f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;

g) the documents or other property, real or personal, to be inspected;

h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;

i) any special method or procedure to be followed under Article 9.

 

A Letter may also mention any information necessary for the application of Article 11.

No legalization or other like formality may be required.

 

Article 4

A Letter of Request shall be in the language of the authority requested to execute it or be accompanied by a translation into that language.

 

Nevertheless, a Contracting State shall accept a Letter in either English or French, or a translation into one of these languages, unless it has made the reservation authorized by Article 33.

 

A Contracting State which has more than one official language and cannot, for reasons of internal law, accept Letters in one of these languages for the whole of its territory, shall, by declaration, specify the language in which the Letter or translation thereof shall be expressed for execution in the specified parts of its territory. In case of failure to comply with this declaration, without justifiable excuse, the costs of translation into the required language shall be borne by the State of origin.

 

A Contracting State may, by declaration, specify the language or languages other than those referred to in the preceding paragraphs, in which a Letter may be sent to its Central Authority.

 

Any translation accompanying a Letter shall be certified as correct, either by a diplomatic officer or consular agent or by a sworn translator or by any other person so authorized in either State.

 

Article 5

If the Central Authority considers that the request does not comply with the provisions of the present Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the objections to the Letter.

 

Article 6

If the authority to whom a Letter of Request has been transmitted is not competent to execute it, the Letter shall be sent forthwith to the authority in the same State which is competent to execute it in accordance with the provisions of its own law.

 

Article 7

The requesting authority shall, if it so desires, be informed of the time when, and the place where, the proceedings will take place, in order that the parties concerned, and their representatives, if any, may be present. This information shall be sent directly to the parties or their representatives when the authority of the State of origin so requests.

 

Article 8

A Contracting State may declare that members of the judicial personnel of the requesting authority of another Contracting State may be present at the execution of a Letter of Request. Prior authorization by the competent authority designated by the declaring State may be required.

 

Article 9

The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.

 

However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.

 

A Letter of Request shall be executed expeditiously.

 

Article 10

In executing a Letter of Request the requested authority shall apply the appropriate measures of compulsion in the instances and to the same extent as are provided by its internal law for the execution of orders issued by the authorities of its own country or of requests made by parties in internal proceedings.

 

Article 11

In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence –

a) under the law of the State of execution; or

b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

 

A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.

 

Article 12

The execution of a Letter of Request may be refused only to the extent that –

a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or

b) the State addressed considers that its sovereignty or security would be prejudiced thereby.

 

Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.

 

Article 13

The documents establishing the execution of the Letter of Request shall be sent by the requested authority to the requesting authority by the same channel which was used by the latter.

 

In every instance where the Letter is not executed in whole or in part, the requesting authority shall be informed immediately through the same channel and advised of the reasons.

 

Article 14

The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any nature.

 

Nevertheless, the State of execution has the right to require the State of origin to reimburse the fees paid to experts and interpreters and the costs occasioned by the use of a special procedure requested by the State of origin under Article 9, paragraph 2.

 

The requested authority whose law obliges the parties themselves to secure evidence, and which is not able itself to execute the Letter, may, after having obtained the consent of the requesting authority, appoint a suitable person to do so. When seeking this consent the requested authority shall indicate the approximate costs which would result from this procedure. If the requesting authority gives its consent it shall reimburse any costs incurred; without such consent the requesting authority shall not be liable for the costs.

 

 

CHAPTER II – TAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS

 

Article 15

In civil or commercial matters, a diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, take the evidence without compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State which he represents.

 

A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent only if permission to that effect is given upon application made by him or on his behalf to the appropriate authority designated by the declaring State.

 

Article 16

A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, also take the evidence, without compulsion, of nationals of the State in which he exercises his functions or of a third State, in aid of proceedings commenced in the courts of a State which he represents, if –

a) a competent authority designated by the State in which he exercises his functions has given its permission either generally or in the particular case, and

b) he complies with the conditions which the competent authority has specified in the permission.

 

A Contracting State may declare that evidence may be taken under this Article without its prior permission.

 

Article 17

In civil or commercial matters, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State, if –

a) a competent authority designated by the State where the evidence is to be taken has given its permission either generally or in the particular case; and

b) he complies with the conditions which the competent authority has specified in the permission.

 

A Contracting State may declare that evidence may be taken under this Article without its prior permission.

 

Article 18

A Contracting State may declare that a diplomatic officer, consular agent or commissioner authorized to take evidence under Articles 15, 16 or 17, may apply to the competent authority designated by the declaring State for appropriate assistance to obtain the evidence by compulsion. The declaration may contain such conditions as the declaring State may see fit to impose.

 

If the authority grants the application it shall apply any measures of compulsion which are appropriate and are prescribed by its law for use in internal proceedings.

 

 

Article 19

The competent authority, in giving the permission referred to in Articles 15, 16 or 17, or in granting the application referred to in Article 18, may lay down such conditions as it deems fit, inter alia, as to the time and place of the taking of the evidence. Similarly it may require that it be given reasonable advance notice of the time, date and place of the taking of the evidence; in such a case a representative of the authority shall be entitled to be present at the taking of the evidence.

 

Article 20

In the taking of evidence under any Article of this Chapter persons concerned may be legally represented.

 

Article 21

Where a diplomatic officer, consular agent or commissioner is authorized under Articles 15, 16 or 17 to take evidence –

a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is taken or contrary to any permission granted pursuant to the above Articles, and shall have power within such limits to administer an oath or take an affirmation;

b) a request to a person to appear or to give evidence shall, unless the recipient is a national of the State where the action is pending, be drawn up in the language of the place where the evidence is taken or be accompanied by a translation into such language;

c) the request shall inform the person that he may be legally represented and, in any State that has not filed a declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence;

d) the evidence may be taken in the manner provided by the law applicable to the court in which the action is pending provided that such manner is not forbidden by the law of the State where the evidence is taken;

e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence contained in Article 11.

 

Article 22

The fact that an attempt to take evidence under the procedure laid down in this Chapter has failed, owing to the refusal of a person to give evidence, shall not prevent an application being subsequently made to take the evidence in accordance with Chapter I.

 

 

CHAPTER III – GENERAL CLAUSES

 

Article 23

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

 

Article 24

A Contracting State may designate other authorities in addition to the Central Authority and shall determine the extent of their competence. However, Letters of Request may in all cases be sent to the Central Authority.

 

Federal States shall be free to designate more than one Central Authority.

 

Article 25

A Contracting State which has more than one legal system may designate the authorities of one of such systems, which shall have exclusive competence to execute Letters of Request pursuant to this Convention.

 

Article 26

A Contracting State, if required to do so because of constitutional limitations, may request the reimbursement by the State of origin of fees and costs, in connection with the execution of Letters of Request, for the service of process necessary to compel the appearance of a person to give evidence, the costs of attendance of such persons, and the cost of any transcript of the evidence.

 

Where a State has made a request pursuant to the above paragraph, any other Contracting State may request from that State the reimbursement of similar fees and costs.

 

Article 27

The provisions of the present Convention shall not prevent a Contracting State from –

a) declaring that Letters of Request may be transmitted to its judicial authorities through channels other than those provided for in Article 2;

b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less restrictive conditions;

c) permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention.

 

Article 28

The present Convention shall not prevent an agreement between any two or more Contracting States to derogate from –

a) the provisions of Article 2 with respect to methods of transmitting Letters of Request;

b) the provisions of Article 4 with respect to the languages which may be used;

c) the provisions of Article 8 with respect to the presence of judicial personnel at the execution of Letters;

d) the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give evidence;

e) the provisions of Article 13 with respect to the methods of returning executed Letters to the requesting authority;

f) the provisions of Article 14 with respect to fees and costs;

g) the provisions of Chapter II.

 

Article 29

Between Parties to the present Convention who are also Parties to one or both of the Conventions on Civil Procedure signed at The Hague on the 17th of July 1905 and the 1st of March 1954, this Convention shall replace Articles 8-16 of the earlier Conventions.

 

Article 30

The present Convention shall not affect the application of Article 23 of the Convention of 1905, or of Article 24 of the Convention of 1954.

 

Article 31

Supplementary Agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally applicable to the present Convention unless the Parties have otherwise agreed.

 

Article 32

Without prejudice to the provisions of Articles 29 and 31, the present Convention shall not derogate from conventions containing provisions on the matters covered by this Convention to which the Contracting States are, or shall become Parties.

 

Article 33

A State may, at the time of signature, ratification or accession exclude, in whole or in part, the application of the provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted.

 

Each Contracting State may at any time withdraw a reservation it has made; the reservation shall cease to have effect on the sixtieth day after notification of the withdrawal.

 

When a State has made a reservation, any other State affected thereby may apply the same rule against the reserving State.

 

Article 34

A State may at any time withdraw or modify a declaration.

 

Article 35

A Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date, inform the Ministry of Foreign Affairs of the Netherlands of the designation of authorities, pursuant to Articles 2, 8, 24 and 25.

 

A Contracting State shall likewise inform the Ministry, where appropriate, of the following –

a) the designation of the authorities to whom notice must be given, whose permission may be required, and whose assistance may be invoked in the taking of evidence by diplomatic officers and consular agents, pursuant to Articles 15, 16 and 18 respectively;

b) the designation of the authorities whose permission may be required in the taking of evidence by commissioners pursuant to Article 17 and of those who may grant the assistance provided for in Article 18;

c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;

d) any withdrawal or modification of the above designations and declarations;

e) the withdrawal of any reservation.

 

Article 36

Any difficulties which may arise between Contracting States in connection with the operation of this Convention shall be settled through diplomatic channels.

 

Article 37

The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague Conference on Private International Law.

 

It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

 

Article 38

The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 37.

 

The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

 

Article 39

Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a Member of this Conference or of the United Nations or of a specialized agency of that Organization, or a Party to the Statute of the International Court of Justice may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 38.

 

The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

 

The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.

 

The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.

 

The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the sixtieth day after the deposit of the declaration of acceptance.

 

Article 40

Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.

 

At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.

 

The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification indicated in the preceding paragraph.

 

Article 41

The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 38, even for States which have ratified it or acceded to it subsequently.

 

If there has been no denunciation, it shall be renewed tacitly every five years.

 

Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period.

 

It may be limited to certain of the territories to which the Convention applies.

 

The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.

 

Article 42

The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 37, and to the States which have acceded in accordance with Article 39, of the following –

a) the signatures and ratifications referred to in Article 37;

b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 38;

c) the accessions referred to in Article 39 and the dates on which they take effect;

d) the extensions referred to in Article 40 and the dates on which they take effect;

e) the designations, reservations and declarations referred to in Articles 33 and 35;

f) the denunciations referred to in the third paragraph of Article 41.

 

In witness whereof the undersigned, being duly authorized thereto, have signed the present Convention.

 

Done at The Hague, on the 18th day of March, 1970, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Eleventh Session of the Hague Conference on Private International Law.


APPENDIX B

 

Pleading Forms

 

CAUSE NO.

 

                                                                                §              IN THE DISTRICT COURT OF

                                                Plaintiff,                 §

                                                                                §

v.                                                                             §              HARRIS COUNTY, TEXAS

                                                                                §

                                                                                §

                                                Defendant,             §              190TH JUDICIAL DISTRICT

 

 

ORDER GRANTING OPEN LETTER ROGATORY

            Before the Court is the parties’ unanimous request for an open Texas Rule of Civil Procedure 201.1(c) Letter Rogatory.  The parties have represented to the Court that many of the material witnesses in this case reside outside of the State of Texas and beyond the subpoena power of this Court, and that, without an open letter rogatory, the parties would be required to petition this Court repeatedly for the issuance of letters rogatory.

            In order to facilitate the taking of out-of-state depositions and obviate the need for multiple motions for letter rogatory, the Court GRANTS the request, signs the accompanying Open Letter Rogatory, and ORDERS that the parties may use the Open Letter Rogatory to obtain oral or written depositions of any witness outside the State of Texas for purposes of this litigation. An attorney representing a party to this litigation may use the Open Letter Rogatory by obtaining a certified copy from the District Clerk, completing the blanks with the appropriate information (deponent name and deposition time and place), and dating and countersigning the certified copy where indicated.

            The Court further ORDERS that any party using the Open Letter Rogatory must file the completed and countersigned Open Letter Rogatory with the Court and serve it on all parties before serving the deposition notice and subpoena on the deposition witness.

            The Court further ORDERS that nothing in this order or in the Open Letter Rogatory will operate to preclude a party or witness from seeking protection in this Court or the foreign jurisdiction with respect to a deposition notice, subpoena, or the letter rogatory itself.

                                                                                   

                                                                                    SIGNED on                                         , 2003

 

 

 

 

                                                                                                                                                           

                                                                                    JUDGE PRESIDING

 

 

APPROVED AND ENTRY REQUESTED:

 

 

 

                                                           

 

Counsel for Plaintiff

 

 

 

                                                           

 

Counsel for Defendant


 

 

 

 

CAUSE NO.

 

                                                                                §              IN THE DISTRICT COURT OF

                                                Plaintiff,                 §

                                                                                §

v.                                                                             §              HARRIS COUNTY, TEXAS

                                                                                §

                                                                                §

                                                Defendant,             §              190TH JUDICIAL DISTRICT

 

 

OPEN LETTER ROGATORY

 

To:      Any court, notary public, court reporter, attorney, or other person who is authorized to take depositions, administer oaths, summon witnesses or compel testimony outside of the State of Texas.

 

            This Court requests and authorizes you to summon                                                                                                                  (“Deponent”) before you at                :00       .m. on                                     , 200    , at                                                                                                                                (or    such other time and place as may be agreed) for examination on oral or written questions, and  cause the Deponent’s testimony to be reduced to writing and returned, together with any items marked as exhibits, to the attorney whose signature, name and contact information appear below.  The purpose of the examination is to acquire evidence for trial and for no other purpose.

            A certified copy of this form Letter Rogatory, when completed and countersigned by counsel for a party issuing a deposition notice, will be valid for any oral or written deposition in this lawsuit.  Objections to the form of this letter must be made within                       days of its countersigning and filing.

           

 

 

            SIGNED IN BLANK on                                  , 200    .

 

 

 

                                                                                                                                                                                                                                                JUDGE PRESIDING


COMPLETED AND COUNTERSIGNED ON

 

                                                            , 200        BY:

 

 

Signature:                                                                                           

 

Printed name:                                                                                     

 

Texas State Bar No.                                                                           

 

Firm:                                                                                                  

 

Address:                                                                                             

 

                                                                                                           

 

Phone:                                                  Fax:                                       

 

Represented party:                                                                             

 

 


 

 

 

STATE OF ILLINOIS )

                                                )

COUNTY OF COOK              )

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

 

                                    ,                                   )

                                                                        )

            Plaintiff,                                              )

                                                                        )

vs.                                                                   )                       No.                                         

                                                                        )

                                    ,                                   )

                                                                        )

            Defendant.                                           )

 

 

LETTER ROGATORY

 

TO:                  CIRCUIT CLERK

                        [enter proper court name]

                        [enter location, i.e. London, United Kingdom]

 

 

            In the Circuit Court of Cook County, in the State of Illinois, there is pending a case entitled “                                                         ,” bearing Docket No.                                     ,  and the Defendant                                                         has requested that Subpoena Duces Tecum be issued to the following:

 

[insert subpoenas to be issued]

 

            It is therefore requested that you assist this Court in serving the interest of justice by causing Subpoena Duces Tecum to be issued to                                                           and that the requested records be produced to the law offices of                                                                      [typically insert a location near where the subpoena is to be sent].

           

            THUS DONE AND SIGNED on this  day of                                                 , 2003, at                                                             , Illinois.

 

 

                                                                                                                                                           

                                                                                    CLERK OF COURT

 

 


ENDNOTES

 

 



           Submitted by the authors on behalf of the FDCC Intellectual 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 § 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 § 33 (1999) [hereinafter Smalley]; Fed. R. Civ. P. 28(6).

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

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

[12]          Smalley § 33 (quoting 8 Charles Alan Wright et al., Federal Practice & Procedure Civil § 2083 (3d ed. 1999)).

[13]          Smalley § 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) § 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. § 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.

 

(authors’ bios)

            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.