by Wilton H. Strickland

Many years ago, when I took the plunge and started my own business, I wrote an article summarizing how to effectuate service of process abroad. It occurs to me that I never followed through with an article discussing the pursuit of discovery abroad. Better late than never, I suppose, so here are some tips for anyone grappling with how to find and gather relevant evidence that might be hiding in a country far, far away.

Pre-trial discovery under our system of jurisprudence is uniquely expansive and, in the eyes of most other countries, abusive. This goes double for any discovery directed at non-parties to a lawsuit, whom other countries typically consider beyond the scope of compulsory process. So, your first step is to identify whether you need discovery from a party or a non-party, which will determine what tools are at your disposal.

Pursuing Discovery From A Foreign Party

If a domestic court obtains personal jurisdiction over a party who resides in a foreign country (such as by perfecting service of process), you and the court should be able to compel the party’s compliance with the ordinary rules of discovery regardless of whether the party is a foreign national, and regardless of any international conventions or foreign laws to the contrary. The U.S. Supreme Court explained this in detail in Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522, 541-46 (1987), emphasizing principles of international comity and the mutual respect for the domestic courts of other nations. The only caveat is that the domestic court should supervise the discovery process to ensure that it is not abusive.

State courts sometimes lack case law on this issue. However, there are hundreds of federal decisions that cite Aerospatiale when allowing discovery against a foreign party, and they should be persuasive in a state court (especially when the domestic rules of discovery parallel the federal ones). Just one such decision is Runway TV, LLC v. De Gray, No. 2:18-cv-02503-FMO-JC, 2020 U.S. Dist. LEXIS 225424 (C.D. Cal. Sept. 15, 2020), where the court ruled that a foreign party could not object to discovery based on French or EU laws. The court also gave a helpful summary of the factors affecting international comity that must be weighed when deciding whether to allow foreign discovery, as follows:

• The importance to the litigation of the documents or other information requested;
• The degree of specificity of the request;
• Whether the information originated in the United States;
• The availability of alternative means of securing the information;
• The extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located;
• The extent and the nature of the hardship that inconsistent enforcement would impose upon the person; and
• The extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state.

Runway, 2020 U.S. Dist. LEXIS 225424, at *9, *10 (citations omitted).

Therefore, if at some point you need the court’s assistance to obtain discovery from the party in a foreign country, you will need to discuss these factors. The court should be able to enter discovery orders and sanctions for disobedience in the ordinary fashion.

Pursuing Discovery From A Foreign Non-Party

To the extent you need to pursue discovery against a foreign non-party over whom the domestic court lacks jurisdiction, you need to determine whether you can use any treaties addressing international discovery. Three prominent examples are The Hague Evidence Convention, The Inter-American Evidence Convention, and The Inter-American Service Convention. This can be tricky, however, because the foreign country might not be a party to the treaty in question. The United States itself is not a party to the Inter-American Evidence Convention and has issued a reservation exempting pre-trial discovery from the Inter-American Service Convention.

If no treaty offers a solution, the only mechanism for compelling pre-trial discovery from a foreign non-party is by way of a “letter of request” or “letter rogatory” pursuant to Rule 28(b)(2) of Federal Rules of Civil Procedure (and any state analogue). A letter rogatory is quite simply a request by a domestic court to a foreign court for assistance – in this case, assistance with regard to pre-trial discovery. Local counsel in the foreign country takes on paramount importance here, since the manner of enforcing a letter rogatory varies from country to country, and you will need to know the permissible scope and procedure for conducting discovery in the foreign country prior to framing a request. Once you have a clearer picture of what types of discovery you are permitted to obtain, you can make a motion to the court for issuance of a letter rogatory directed to the appropriate foreign court. The letter should include, at a minimum, the following information:

• A statement that a request for international judicial assistance is being made in the interests of justice;
• A brief synopsis of the case, including identification of the parties and the nature of the claim and relief sought to enable the foreign court to understand the issues involved;
• The type of case (e.g., civil, criminal, administrative);
• The nature of the assistance required;
• Name, address, and other identifiers (such as corporate title) of the person to be served or from whom evidence is to be compelled;
• A list of questions to be asked, where applicable, generally in the form of written interrogatories;
• A list of documents or other evidence to be produced;
• A statement from the requesting court expressing a willingness to provide similar assistance to judicial authorities of the receiving state; and
• A statement that the requesting court or party is willing to reimburse the judicial authorities of the receiving state for costs incurred in executing the letter rogatory.

The U.S. Department of State provides helpful information on how to prepare and submit a letter rogatory.

Note that letters rogatory are time-consuming and cumbersome. Based on my experience, I recommend that before you resort to any attempt at compulsory process, you send letters to the non-party asking for voluntary cooperation. If you present yourself in the most accommodating manner possible – such as by offering to cover any expenses – you might be able to avoid the letter-rogatory morass entirely. However, if cooperation is not forthcoming, you can attach copies of those letters as an exhibit to the letter rogatory, which should enhance the probability of success.

Happy hunting!