Getting Discovery Across Borders

Seeking discovery in foreign countries presents unique challenges. Outlined below are several methods for seeking cross-border discovery and potential obstacles practitioners may encounter.

Mechanisms for Seeking Discovery Abroad

While the Federal Rules of Civil Procedure apply in U.S. litigation even when a party seeks evidence located in a foreign jurisdiction, to avoid disputes on the applicability of the Federal Rules in this context, a party may nonetheless opt to pursue discovery simultaneously by other means. While not an exhaustive list, common options include the following:

1. Hague Convention: The preferred method of seeking discovery from foreign jurisdictions is the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention). This multilateral treaty establishes methods of cooperation whereby judicial authorities in one signatory country may obtain evidence in another signatory country. It provides two mechanisms by which a party may seek evidence: (1) letters of request or (2) assistance through diplomatic or consular agents and commissioners. One advantage of using this process is that a party may pursue alternative methods of discovery while seeking discovery through the Hague Convention. However, a party should keep in mind that the Hague Convention process is often lengthy, and some parties may find themselves unable to obtain complete discovery because many countries that are signatories to the convention have issued limiting declarations and reservations that restrict discovery. One particular reservation is contained in Article 23, which allows a signatory to declare that it will not execute a letter of request “for the purpose of obtaining pretrial discovery of documents as known in Common Law countries.”
2. Letters rogatory: Alternatively, parties may consider applying for a letter rogatory from a U.S. judge. A letter rogatory is a formal request from a court in which an action is pending to a foreign court asking for assistance to perform a judicial act. In assessing whether to pursue this avenue, a party should keep the following observations in mind: (1) The process is unpredictable, cumbersome, and slow; (2) once prepared by counsel, a letter rogatory must be signed by a U.S. judge and authenticated, if required by the foreign jurisdiction, and then conveyed through diplomatic channels; and (3) letters rogatory are merely a request to the foreign jurisdiction to assist, and the foreign jurisdiction is not obligated to comply.
   
3. The Walsh Act: The Walsh Act, 28 U.S.C. § 1783, permits a federal court to issue a subpoena for testimony or documents from a U.S. citizen or resident abroad if the evidence sought is “necessary in the interest of justice” and is “not possible to obtain . . . in any other manner.” Of note, while the Walsh Act has been used in civil actions, it was originally enacted for use in criminal proceedings.
4. Use of foreign jurisdiction’s process: Parties to U.S. litigation may also seek discovery pursuant to the legal procedures of the foreign jurisdiction where the evidence is located. Research the foreign jurisdiction’s procedural rules early on and assess whether pretrial discovery is permitted.

Potential Obstacles

To effectively use any of the above options, a party must become familiar with potential obstacles to seeking cross-border discovery from foreign jurisdictions and must be able to navigate them. Parties should be aware that many foreign jurisdictions view U.S.-style discovery as overbroad and, in some instances, contrary to the foreign jurisdiction’s concepts of fairness.

In addition, data-protection laws may prohibit or restrict the transfer of personally identifying information outside participating jurisdictions. For example, the European Union’s General Data Protection Regulation (GDPR) adopts a presumptively prohibited approach, pursuant to which E.U. citizens’ personal data (often contained in discovery documents) cannot be sent out of the E.U. unless at least one mechanism is present to ensure that the data is adequately protected. Failing to comply with this requirement can expose both the sender and the recipient of the documents to significant liability.

Furthermore, to prevent U.S.-style discovery, many jurisdictions have enacted blocking statutes aimed at restricting the transfer of documents and information for use in foreign litigation.

A party responding to a request for discovery from abroad may invoke a foreign privilege or immunity as a potential defense. How courts analyze the issue may depend on the manner in which the request is made. For instance, while the Hague Convention has defined provisions by which a party may invoke a privilege, a party’s ability to invoke a privilege or immunity may be less clearly defined where the discovery request was made outside the Hague Convention.

Conclusion

In sum, a party should identify early on whether international discovery is viable and should be able to anticipate issues that will need to be address with the judge. Think about phrasing discovery requests to deal with anticipated discovery issues, and consider the following issues:

• the nature of the evidence at issue (i.e., depositions versus document production);
• the geographical location of the evidence;
• the subject matter of the evidence;
• the custodian or owner of the evidence (e.g., a party versus a nonparty);
• how parties anticipate requesting production of evidence;
• whether any parties intend to consent or object to a request;
• e-discovery issues;
• whether the Federal Rules of Civil Procedure will govern depositions;
• whether the U.S. court will resolve deposition disputes;
• the applicable treaties, conventions, and foreign laws or practices;
• whether consultation with local counsel is necessary; and
• practical obstacles or delays that may arise in the target jurisdiction, such as data-protection laws.