By: Carolyn A. Dubay, Associate Editor, International
Judicial Monitor
The United States is a party to The Hague Convention on
the Taking of Evidence Abroad in Civil or Commercial Matters, which was
concluded in 1970 and entered into force in 1972. The Hague Evidence
Convention applies only in civil and commercial cases and represents a
compromise set of procedures to reconcile differing discovery rules from civil
and common law countries. One of the primary goals of the Convention is to
expedite the process of obtaining evidence in foreign countries for use in
domestic litigation. For example, requests for judicial assistance under the
Hague Evidence Convention are often executed somewhat faster than traditional
letters rogatory, which must go through diplomatic channels and may take over a
year to process. The Hague Evidence Convention shortens this process, although
response to discovery requests made according to its procedures may still take
well over six months.
The Hague Evidence Convention sets forth two major
processes for obtaining evidence abroad. First, the Convention establishes a
process for “letters of request” to be sent from the court in the United States
to a designated “central authority” in the foreign country where the evidence
is located. For incoming requests to the United States, the Office of
International Judicial Assistance in the U.S. Department of Justice serves as
the central authority for processing letters of request. Although the
Convention attempts to reconcile rules relating to pre-trial discovery,
practitioners should be aware that many countries have made specific declarations
objection to Article 23 of the Convention as it relates to pre-trial discovery
of documents. Second, the Convention sets forth procedures for taking
depositions abroad through consular agents or court-appointed commissioners.
While the Hague Evidence Convention provides detailed and
streamlined procedures to expedite obtaining evidence from abroad, its
provisions are not the exclusive, or even primary, means by which American
litigants engage in discovery in cases with a transnational element. In 1987,
the Supreme Court issued its opinion in Société Nationale Industrielle
Aerospatiale v. U.S. District Court for the District of Iowa, 482 U.S. 522
(1987), which opened the door to only modest use of the Hague Convention as a
means of obtaining discovery from abroad. Specifically, in Aerospatiale, the
Supreme Court held that even where the Hague Evidence Convention applies to the
dispute before the trial court, first resort to the Convention’s procedures is
not required. Instead, trial courts are to consider a balance of factors in
determining whether to proceed with the Convention’s procedures or to apply
existing methods of discovery permissible under federal and state rules. As
Justice Blackmun lamented in his dissent in Aerospatiale:
The Court ignores the
importance of the Convention by relegating it to an “optional” status, without
acknowledging the significant achievement in accommodating divergent interests
that the Convention represents. Experience to date indicates that there is a
large risk that the case-by-case comity analysis now to be permitted by the
Court will be performed inadequately and that the somewhat unfamiliar
procedures of the Convention will be invoked infrequently. I fear the Court's
decision means that courts will resort unnecessarily to issuing discovery
orders under the Federal Rules of Civil Procedure in a raw exercise of their
jurisdictional power to the detriment of the United States' national and
international interests. The Court's view of this country's international
obligations is particularly unfortunate in a world in which regular commercial
and legal channels loom ever more crucial.
Id. at 548 (Blackmun, J., dissenting).
International
Judicial Monitor