Taking Evidence Abroad: Letters of Request
A court cannot compel a witness in another country. The Evidence Convention supplies a way to ask that country's own courts to do the compelling, together with a long list of declarations in which each state explains how much it is willing to do.
The rule in short
Under the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, a judicial authority in one party state sends a letter of request to a designated central authority in another, which has its own courts obtain the evidence. Execution follows the requested state's procedures unless a special method is asked for and is not incompatible. Article 23 lets a state refuse requests aimed at pre-trial discovery of documents, and most have.
A court's power to compel testimony stops at its own borders. Where a witness, or the documents a case needs, sits in another country and is not a party, the only lawful route runs through that country's own authorities. The Evidence Convention is the mechanism for asking, and it is best understood as a request between judicial systems rather than an order.
What a letter of request is
A judicial authority in one party state sends a letter of request to the central authority designated by another, asking it to obtain evidence or perform some other judicial act. The requested state's own court then does the work, using its own procedures. Nothing is transmitted to the requesting court except the resulting record.
The Convention applies to evidence intended for use in judicial proceedings that have been commenced or are contemplated. It does not reach investigations detached from litigation, and it says expressly that the phrase does not cover other judicial acts such as serving documents, which travel under the Service Convention.
What the request has to contain
Article 3 lists the contents: the requesting and requested authorities, the parties and their representatives, the nature of the proceedings and the facts, and the evidence to be obtained. Where testimony is sought, the names of the persons to be examined and the questions to be put or the subject matter to be covered. Where documents are sought, the documents or property to be inspected.
The list is not bureaucratic decoration. Many requested courts examine the request as a pleading and refuse anything outside it. The questions supplied are frequently the questions actually asked, particularly in systems where the judge conducts the examination, so the drafting has to anticipate answers rather than leave room to follow them up.
The pre-trial discovery declaration
Article 23 permits a state to declare that it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries. Most parties made a declaration of some kind, and the scope varies. Some refuse such requests outright. Others accept requests that identify particular documents, held by the named person, with a stated connection to the dispute.
The practical consequence is that a request drafted like a document demand will be returned unexecuted. A request drafted as a list of identified items, each with a reason to believe it exists and is in that person's hands, will often be executed by the same court that refused the first version.
The Supreme Court held in Aérospatiale that the Evidence Convention does not displace the ordinary discovery rules for evidence sought from a party over which the court already has jurisdiction. Parties sometimes assume they must use the Convention and lose months. The Convention is normally the only route for a non-party witness abroad, and one option among several where the holder of the evidence is already before the court.
| Route | Who is reached | Compulsion available | Main constraint |
|---|---|---|---|
| Letter of request | Any witness in the requested state | Yes, by the requested state's court | Slow; limited by the state's declarations |
| Consular agent or commissioner | Usually willing witnesses only | No, absent a special permission | Many states restrict or require prior permission |
| Ordinary discovery on a party | A party subject to the court's jurisdiction | Yes, through sanctions | Comity analysis and foreign blocking statutes |
| Section 1782 application | A person residing or found in the district | Yes, by subpoena | Runs toward a foreign proceeding, not away from one |
| Subpoena to a national abroad | A national or resident of the United States | Yes, under the statutory provision | Narrow category; requires court order and expenses |
Refusal grounds and privilege
A requested state may decline execution only in narrow circumstances: where execution does not fall within the functions of its judiciary, or where it considers that its sovereignty or security would be prejudiced. Execution may not be refused merely because the requested state claims exclusive jurisdiction over the subject matter or does not recognize a right of action on the matter.
Privilege is treated generously. A person may refuse to give evidence where a privilege or duty to refuse exists under the law of the requested state, or under the law of the requesting state where the privilege is specified in the letter or confirmed by the requesting authority. Which privileges are asserted, and how they are waived, is the subject of privileges, their scope and how they are waived.
Assistance running the other way
Section 1782 is the mirror image. A district court may order a person who resides or is found in the district to give testimony or produce documents for use in a proceeding before a foreign or international tribunal, on the application of that tribunal or any interested person. It is unusually generous, and the discretionary factors courts apply are aimed at keeping it from being used to bypass a foreign court's own limits.
The Supreme Court has held that a private commercial arbitral panel is not a foreign or international tribunal for this purpose, which removed a large category of applications. Evidence gathered by any of these routes still has to be admissible when offered, so the ordinary questions of authenticating documents and electronic evidence arise at trial. Where the holder of the material is a party rather than a stranger, the analysis shifts to discovery from a foreign party in a United States case.
Points to carry away
- A letter of request asks the foreign court to take the evidence, not to hand over a witness.
- Execution follows the requested state's own procedure unless a special method is requested.
- Many states have declared they will not execute pre-trial discovery of documents requests.
- A witness may refuse on a privilege recognized by either the requesting or requested state.
- Evidence may also be taken by consular agents or commissioners where the state permits it.
- Section 1782 runs the other way, letting a district court aid a foreign proceeding.
Questions readers ask
Can counsel from the requesting country attend the examination?
Often, but not as of right. The Convention allows the requesting authority to ask to be informed of the time and place so the parties and their representatives may be present, and permits a request that the judicial personnel of the requesting authority attend, subject to the requested state's approval. Whether counsel may question the witness directly is a separate matter governed by local procedure. In several civil law countries the judge asks the questions from a list supplied in the request, which is why the drafting of that list matters so much.
What does the pre-trial discovery declaration actually block?
It blocks requests for the kind of broad documentary discovery common in common law systems, where a party asks for categories of documents rather than identified items. Several states that made the declaration have qualified it, agreeing to execute requests that list specific documents believed to be in the person's possession, with a stated connection to the case. Drafting to that standard is the practical answer: name the documents, explain why each is likely to exist, and drop category language entirely.
How long does execution take?
Commonly six months to a year, and longer where translation, a contested hearing or an appeal against execution intervenes. The timetable is outside the requesting court's control, which is why parties raise the need for a letter of request early in the schedule rather than at the close of discovery. Where the evidence is held by a party rather than a stranger, the faster course is usually to seek it through ordinary discovery and accept the comity argument that follows.
Sources
- HCCH — Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, full textChapter I on letters of request, Chapter II on consular agents and commissioners, and Article 23.
- HCCH — Evidence Convention, status tableThe parties and the declarations each has filed, including on pre-trial discovery.
- HCCH — Evidence SectionCountry profiles, the model request form and guidance on drafting an executable request.
- Cornell Legal Information Institute — 28 U.S.C. 1782, Assistance to Foreign and International TribunalsThe power of a district court to order testimony or documents for use in a foreign proceeding.
- Cornell Legal Information Institute — Federal Rule of Civil Procedure 28, Persons Before Whom Depositions May Be TakenSubdivision (b) on depositions in a foreign country, including letters of request and commissions.
- Cornell Legal Information Institute — 28 U.S.C. 1781, Transmittal of Letter Rogatory or RequestThe diplomatic channel for transmitting requests and the permitted direct transmittal.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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