Obtaining Evidence from U.S. Nationals Abroad - Part 3 Chapter 10 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
In an increasingly global economy, the need for obtaining evidence outside one’s home country often faces legal practitioners. As we have discussed in prior articles, the use of letters of request under The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, where applicable, has simplified and made more reliable the procedures for obtaining evidence from third-party witnesses located outside the United States. Where the foreign country involved is not a signatory to the Convention, one has little choice but to resort to the traditional, and more time-consuming, letter rogatory procedure provided for by Rule 28(b) of the Federal Rules of Civil Procedure and section 1781 of Title 28, United States Code, as well as under principles of comity.
In an earlier chapter, we also discussed the potential extraterritorial reach of subpoenas issued and served pursuant to Rule 45(a)(2) of the Federal Rules of Civil Procedure. We noted that, according to the Notes of the Advisory Committee on Rules and Procedure and certain cases (Ghandi and In Re Jee), a Rule 45 subpoena could have the effect of compelling a multinational corporation with an office in the United States to produce evidence and documents located abroad that are under its control.
The procedures under The Hague Convention or letters rogatory have limited or no coercive force, while the extraterritorial reach of a subpoena is uncertain and premised in any event on a showing of control over the evidence located abroad. In this chapter, we examine a fourth option for obtaining evidence abroad, which, although applicable only in narrow circumstances, may have a more direct coercive effect on an uncooperative third-party witness. Under the last sentence of Rule 45(b)(2), “a subpoena directed to a witness in a foreign country who is a national or resident of the United States shall issue . . . and be served as provided in Title 28, U.S.C. § 1783.”