Taking Evidence Abroad
If you’re here, you probably are interested in my work helping US litigants and lawyers get evidence abroad for use in US cases. The approach I recommend depends on the country in question and the client’s goals. Here are some of the main approaches.
- The Hague Evidence Convention. The United States and dozens of countries are parties to The Hague Evidence Convention, a treaty that provides a simplified method of requesting assistance from the authorities in another country in obtaining evidence for use in the United States. The Convention is useful in cases where the witness is not willing to appear without compulsion, and in cases where the witness is willing to appear but the foreign law does not allow American lawyers to take evidence in their territory without permission.
- Letters Rogatory. In countries that are not parties to the Evidence Convention, it is sometimes necessary to seek assistance from the foreign authorities using letters rogatory, a traditional request from the US court to the foreign court. In some cases, it’s necessary to send the letters rogatory through the diplomatic channel. In other cases, it’s possible to approach the foreign court directly.
- Foreign Law Methods. Some countries make it possible to take evidence, either by compulsion or from a willing witness, by other methods.
- US Discovery Methods. I always consider whether it’s possible to take evidence abroad, in a particular case, using the discovery tools familiar to US lawyers.
I have done this work in many countries on six continents.