New York and U.S. litigators might take for granted the ability to use discovery requests, but the United States is the exception to the global rule when it comes to the gathering of evidence. Nearly every other legal system in the world does not allow parties to ask each other for categories of documents relevant to the claims in the litigation, let alone allow the use of interrogatories or pre-trial depositions. Instead, foreign parties in foreign litigations typically present the court with a small selection of their own documents that they believe most support their positions. Many international arbitrations operate under similar assumptions, and do not allow the parties access to their opponents’ files or documents.
When relevant evidence is located in a foreign country, international procedures such as Hague Evidence Convention requests (in those countries that have signed onto the Convention) or letters rogatory may allow the court where a litigation is pending to ask a foreign authority to require the collection of evidence. However, these procedures are time-consuming and often restrict the evidence that can be obtained—and they are not available to parties to private arbitrations.
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