James Drake and David Spears ()
A lawyer in legal proceedings in the United States can readily compel the production of evidence in England for use in U.S. proceedings, including both documents and sworn testimony. However, in keeping with the fact that the English rules governing civil litigation do not allow for U.S.-style pretrial discovery, there are important limitations on what a U.S. lawyer can seek and obtain in England. The procedure in England for compelling production of evidence for use in U.S. civil proceedings is governed by an English statutory framework intended to implement the commitments made by the United Kingdom as a signatory to the Hague Evidence Convention.1
A request that an English court order the production of evidence is typically initiated through the U.S. court in which the underlying litigation is pending. In this article we focus on obtaining evidence under the Hague Evidence Convention2 in cases before U.S. district courts.3
Letter of Request
The first step for a U.S. lawyer who wants to compel the production of evidence in England is to make an application to the U.S. court in which the litigation is pending for the issuance of a letter of request to the High Court in England.
Federal Rule of Civil Procedure 28 and 28 U.S.C. §1781 address requests to the courts of foreign countries for the production of evidence. Rule 28(b)(1) provides that “depositions” may be taken in a foreign country “under an applicable treaty” or “under a letter of request.” Rule 28(b)(2) provides that a letter of request “may” be issued “on appropriate terms after an application and notice of it.” Rule 28(b)(3) states that a letter of request issued under a treaty “must be captioned in the form prescribed by the treaty.” Section 1781 authorizes “the transmittal of a letter rogatory or request directly from a tribunal in the [U.S.] to the foreign…tribunal.” Section 1781 also sets out the full text of the relevant provisions of the Hague Evidence Convention, as well as a “Model for Letters of Request” in the “Annotations to the Convention.”
In considering applications for letters of request, U.S. courts apply the discovery standards of Rule 26,4 or principles of international comity,5 or both.6 Under the Supreme Court’s 1987 decision in Société Nationale the comity factors are: (1) the importance to the litigation of the information requested; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; and (5) the extent to which compliance or non-compliance with the request could undermine important interests of the United States or the country to which the request would be directed.7 Under either formulation, however, courts balance considerations of burden and relevance.8
Most courts have held that a party resisting an application for a letter of request bears the burden of showing that it should not be granted.9 In those instances where the applicant has faced the initial burden, the threshold is not steep.10 Courts have rejected challenges to applications for letters of request arguing that an applicant must show that the evidence sought in the application “will actually be attained,”11 and that the receiving nation “will not execute” the letter of request because of what is being requested.12 However, there are decisions denying an application for a letter of request.13
In general, consistent with Rule 28(b)(2)’s statement that a letter of request “may be issued,” a district court has discretion. Accordingly, both sides should be prepared to advance arguments relating to burden and relevance.
The proposed letter of request should be submitted to the district court with the application. The proposed request should set out a summary of the facts and proceedings in the United States, the relevance of the evidence being sought, and a specific enumeration of that evidence. If testimony is being sought, the proposed request should set out a list of the subject matters on which the witness will be questioned. Above all, in making an application, a lawyer should keep in mind the manifest differences in U.S. law and English law regarding pretrial practice, discussed below.
English Statutory Framework
The jurisdiction of the English High Court to give effect to letters of request from U.S. courts is set forth in two places, and together they form a complete code: the Evidence (Proceedings in Other Jurisdictions) Act 1975 (Evidence Act), and Part 34 of the Civil Procedure Rules (CPR).
Under section 1 of the Evidence Act, the High Court is authorized to act on an application for an order compelling the production of evidence when it is satisfied that (a) “the application is made in pursuance of a request issued by or on behalf of a court or tribunal (‘the requesting court’) exercising jurisdiction…in a country…outside the United Kingdom,” and (b) the evidence sought “is to be obtained for the purposes of civil proceedings which…have been instituted before the requesting court….” The words “court or tribunal” extend to arbitral tribunals.14
The High Court is empowered “by order to make such provision for obtaining evidence…as may appear to the court to be appropriate for the purpose of giving effect to the request….”15 Specifically, the High Court may make provision for (a) “the examination of witnesses, either orally or in writing”; (b) “the production of documents”; (c) “the inspection, photographing, preservation, custody or detention of any property”; (d) “the taking of samples of any property and the carrying out of any experiments on or with any property”; (e) “the medical examination of any person”; and (f) “the taking and testing of samples of blood from any person.”16
The Evidence Act provides generally that an order issued by the High Court “shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings” in an English court.17 In particular, in relation to the disclosure of documents the order shall not require the witness (a) “to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power;” or (b) “to procure any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power.”18
English High Court
With a letter of request from a U.S district court in hand, the requesting party must make application in the High Court in England under CPR 34.17 for an order requiring production. U.S. lawyers typically retain an English solicitor to make the application.
The application, which may be made ex parte, must be supported by evidence in writing, such as a witness statement setting forth the background of the U.S. proceedings and why the requested evidence is needed; and it must be accompanied by the letter of request from the U.S. court. The application is put before the senior master of the High Court, who is the equivalent of a U.S. magistrate judge.
An English court will proffer assistance where it can, but only to the extent that the request is for something that is permitted under English law. And this is where the rub comes when U.S. lawyers invoke the aid of the English court.
The process of pretrial exchange and collection of evidence and information in civil proceedings in England is very different from the process in the United States. In the United States, the broad discovery standards embodied in Rule 26 of the Federal Rules of Civil Procedure authorize sweeping discovery of litigants and non-parties. England, by contrast, favors the term disclosure, connoting a much more limited exercise.
In civil proceedings in England, except in rare circumstances (e.g., where the witness is unavailable to attend trial) there is no pretrial testimonial examination of litigants or non-parties; and even in these rare circumstances the examination is solely for use at trial. Similarly, while litigants in England are required to exchange relevant documents, the High Court will order the production of documents by a non-party only where (a) the documents sought “are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings” and (b) “disclosure is necessary to dispose fairly of the claim or to save costs.”19
Because an order made by the High Court for the production of evidence for use in a foreign proceeding cannot go beyond what an English court is empowered to do in English civil proceedings, a letter of request that smacks of U.S.-style discovery—one that seeks information pursuant to a train of inquiry that might lead to actual trial evidence—is unacceptable. Accordingly, an English court will not order the general disclosure of documents pursuant to a broad description, but rather will only order the disclosure of specific, enumerated documents. A general description of the documents requested may pass muster—e.g., all bank statements for account no. 12345 for May through October 2013—but more generic descriptions are likely to run into trouble.
Similarly, with regard to testimony sought in a letter of request, the examination of the witness must be for the sole purpose of obtaining testimony for trial. The English court will not countenance the questioning of a witness in the fashion of a U.S. pretrial deposition. Indeed, a question can only be asked of the witness if it is of a nature that could properly be asked if the witness were being examined at a trial before the High Court in England.20
Nonetheless, an overbroad letter of request does not deprive the High Court of jurisdiction to make an order in response to the request. Rather, the court may “blue-pencil” offending parts of the request or impose terms on the production of documents or the examination of a witness, including, for example, requiring the identification and provision of the documents upon which the witness is to be examined.21
Once the High Court is satisfied as to jurisdiction and discretion, the court can make an order for the production of evidence pursuant to the letter of request. If the description of the evidence sought as set out in the Letter of Request does not offend against English law principles, that description may well appear verbatim in the court’s order. Nowadays orders usually set forth in an attached schedule the subject matters to be asked about and, if applicable, the documents to be produced by the witness.
Under CPR 34.18, an order for the examination of a witness will provide that the examination is to be taken before, and overseen by, an Examiner. The Examiner can be someone nominated by the requesting party (usually an English barrister), or someone who has been appointed by the Lord Chancellor to serve as an Examiner (usually a barrister or retired master).
After the Order Is Issued
Once the High Court issues its order, it is to be served on the witness according to the usual service provisions of the CPR. Typically this is arranged by the English solicitors acting for the requesting party. The witness’ lawyer should scrutinize the order with care to ensure that it complies with the terms of the letter of request and with English law and practice. If the order does not comply—e.g., the subject matters delineated for the examination are too vague, or the request for documents is too broad—then the witness may make application to the High Court to strike down the order altogether or to narrow its scope. But it is more common for the requesting party and the witness to agree between themselves as to the permissible scope of the examination and amend the order accordingly, thereby avoiding delay and cost.
Typically the examination takes place in the offices of the English solicitors or at a court reporting service, and the parties arrange for the examination to be transcribed and videotaped. The witness is examined by the representatives of the parties to the U.S. litigation under the oversight of the examiner. U.S. counsel can do the examinations, and indeed, the order invariably makes such provision. The witness may be represented by counsel. The Examiner should ensure that the examination proceeds under the strictures set out in the order relating to the subject matters for inquiry and/or documents to be produced.
The examination should be conducted “in the same way as if the witness were giving evidence at trial” in the English court.22 Strictly speaking, this means the requesting party “calls” the witness and examines the witness first, and the other parties are then permitted to cross-examine the witness, with any re-examination to follow. In practice, however, the examiner will allow some leeway to the parties in their respective examinations. It is important that counsel representing the witness—or counsel for the party whose interests are aligned with the witness, if that be the case—is alert to ensure the proper conduct of the examination.
Remedies if Problems Arise
Under CPR 34.10, if the witness refuses to attend the examination or refuses to answer a question on grounds other than privilege, the requesting party may call upon the examiner to issue a “certificate” to that effect, which the requesting party may then deploy in an ex parte application to the High Court for an order compelling the witness to attend or respond.
The approach is different when the witness asserts a privilege in response to a question or a request for documents. CPR 34.2 provides that a witness appearing pursuant to a letter of request is entitled to assert privilege on any ground recognized under English law or U.S. law. If the assertion is legitimate under English law, the examiner (or the High Court, if it ends up there) will allow the privilege.
If the privilege asserted is based on U.S. law, there are two possibilities. Where the existence of the privilege is acknowledged in the letter of request itself or is conceded by the other side, the examiner will allow the privilege. Where neither of those preconditions exists, the examiner should—and, on ex parte application to the High Court, may be ordered to—require the evidence that is the subject of the privilege assertion to be recorded outside the presence of the parties and then forward that evidence to the senior master in the High Court, noting the asserted privilege. The senior master will retain the evidence and present the privilege issue to the U.S. court for determination. If the U.S. court upholds the assertion, the evidence in question is returned to the witness. If the U.S. court rejects the assertion, the evidence is made part of the examination transcript.
In Rio Tinto, Lord Alfred Thompson Denning said this: “It is our duty and pleasure to do all we can to assist [the U.S. court], just as we would expect the [U.S.] court to help us in like circumstances.”23 The challenge for the U.S. practitioner is to appreciate the silent caveat therein, that English courts will not order a witness to take any steps that the witness could not be compelled to take in civil proceedings in an English court. In particular, English courts will not facilitate the taking of open-ended discovery depositions or the making of generic, catch-all document requests. A U.S. lawyer who seeks to obtain evidence in England via the Hague Evidence Convention and the good offices of the English High Court must be astute to these important limitations.
James Drake is a barrister and examiner in London and a member of the New York state bar. David Spears is a partner at Spears & Imes. Connor Williams, an associate at Spears & Imes, assisted in the preparation of this article.
1. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.
2. The Federal Rules of Civil Procedure may provide alternative procedures in some scenarios, such as when one party is seeking discovery from a foreign party.
3. The particulars of seeking the production of evidence under the Hague Evidence Convention in state court in the United States is informed by the discovery rules in that particular jurisdiction. See, e.g., BAII Banking v. Northville Indus., 204 A.D.2d 223 (1st Dept. 1994).
4. See, e.g., Upper Deck Int’l B.V. v. Upper Deck Co., No. 11 Civ. 1741, 2013 WL 3746086, at *2 (S.D. Cal. July 12, 2013).
5. See, e.g., Cascade Yarns v. Knitting Fever, No. C10-861, 2014 WL 202102, at *1 (W.D. Wash. Jan 17, 2014).
6. See Calixto v. Watson Bowman Acme, No. 07-60077-CIV, 2009 WL 3823390, at *20-*21 (S.D. Fla. Nov. 16, 2009).
7. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. for the S.D. Ia., 482 U.S. 522, 546 n.28 (1987).
8. Compare Upper Deck, 2013 WL 3746086, at *2 with Seoul Semiconductor Co. v. Nichia, 590 F.Supp.2d 832, 834-37 (E.D. Tex. 2008).
9. See In re Urethane Antitrust Litig., 267 F.R.D. 361, 365 n.17 (D. Kan. 2010) (collecting cases); see also Upper Deck, 2013 WL 3746086, at *2.
10. See, e.g., Seoul Semiconductor, 590 F.Supp.2d at 835; Metso Minerals v. Powerscreen Int’l Distribution, No. CV06-1446, 2007 WL 1875560, at *2 (E.D.N.Y. June 25, 2007)
11. In re Urethane Antitrust Litig., 267 F.R.D. at 364.
12. Cascade Yarns, 2014 WL 202102, at *1-*2 (internal quotation and citation omitted).
13. See, e.g., Calixto, 2009 WL 3823390, at *21; Seoul Semiconductor, 590 F.Supp.2d at 837.
14. See Rio Tinto Zinc v. Westinghouse Electric  A.C. 547, 633 (HL) (per Lord Diplock).
15. Evidence (Proceedings in Other Jurisdictions) Act 1975, sec. 2(1).
16. Id. at sec. 2(2).
17. Id. at sec. 2(3).
18. Id. at sec. 2(4).
19. CPR 31.17(3).
20. Golden Eagle Refinery v. Associated International Insurance Co.  EWCA Civ 293; see also CPR 34.9.
21. Golden Eagle Refinery  EWCA Civ 293.
22. CPR 34.9.
23.  A.C. 547, 560H.