A Tale of Two Cities: Compulsory Testimony Abroad - Part 3 Chapter 16 - 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.
It is not unusual for testimony in United States cases to be taken through depositions outside its borders. Frequently, witnesses whose testimony is taken are those who are willing to present themselves voluntarily; as a result, no elements of compulsion are needed. In rarer cases, testimony must be taken pursuant to court order, including an order of the court where the reluctant witness resides. This column discusses the realities of the taking of such testimony based on experience in a recent case.
The rules for taking such testimony are set forth in the Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, which entered into force for the United States on October 7, 1972, TIAS 7444, 23 UST 2555, and is reproduced following 28 U.S.C. § 1781 in the West editions of the U.S. Judicial Code. It provides for the obtaining of evidence in civil or commercial lawsuits pursuant to “letters of request” from the judicial authority of one signatory nation to a designated authority in another signatory country.
The principal practical importance of the Convention is that it provides a method by which parties to civil proceedings in one signatory country may obtain evidence, in the form of testimony or “by judicial acts” (Article 1), from non-parties to the litigation located in another country and to do so under the authority of the other country’s judicial system. The evidence that may be so obtained has been declared by a great many signatory countries to exclude the “pretrial discovery of documents as known in Common Law countries,” reflecting widespread suspicion of pretrial evidence-gathering. Article 23.
The Convention provides that the requested authority in the foreign country “apply the appropriate measures of compulsion in the instances and to the same extent as is provided by its internal law. . . .” Article 10. The importance of the Convention lies, to a great extent, on this authority to compel the production of evidence in the foreign country, although the receiving country’s judicial authority must apply its own law as to the methods and procedures to be filed complying with the request. Article 9.
The Convention requires that the letter of request be translated into the local language — or French or English if the requested state so permits. Article 4. The letters of request are to be executed “expeditiously.” Article 9.