Federal Judicial Center

International Litigation Guide

Discovery in International Civil Litigation:

A Guide for Judges

2015

Federal Judicial Center

International Litigation Guide

Discovery in International Civil Litigation:

A Guide for Judges

Timothy P. Harkness, Rahim Moloo, Patrick Oh & Charline Yim

Freshfields Bruckhaus Deringer US LLP

Federal Judicial Center

2015

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop and conduct education programs for the judicial branch. 

While the Center regards the content as responsible and valuable, it does not reflect 

policy or recommendations of the Board of the Federal Judicial Center.
first printing
v

Contents

Acknowledgments, vii

I. Introduction, 1

II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the 

United States, 3

A. Planning for International Discovery in a U.S. Proceeding, 3

B. Discovery from a Party to a U.S. Federal Litigation, 4

1. Deposition of a Party or a Party’s Employees Located 

Outside the United States, 5

2. Documents Outside the United States, 6

C. Discovery from a Foreign Non-party, 7

1. The Hague Convention, 8

2. Letters Rogatory, 18

3. Subpoena to a U.S. Citizen or Resident Abroad Under the 

Walsh Act, 28 U.S.C. § 1783, 23

4. The Legal Procedures of the Foreign State, 24

D. Obstacles to U.S.-Style Discovery, 24

1. Data Protection Laws and Blocking Statutes, 24

2. Competing Sovereignty and Other National Interests, 30

3. Foreign Privileges or Immunities, 32

III. Discovery in the United States to Assist Proceedings in a Foreign 

Jurisdiction, 37

A. Requests Made Under the Hague Convention, 37

B. Requests, Including Letters Rogatory, Made by an Interested 

Person or a Foreign or International Tribunal Under 28 U.S.C. 

§ 1782, 38

1. Statutory Requirements Under § 1782, 39

2. Discretionary Factors in Granting an Application Under 

§ 1782, 46

C. Voluntary Cooperation, 50
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vi

IV. Conclusion, 53

Recommended Reading, 55

Appendix A: Discovery Practices in Selected Jurisdictions, 59

Appendix B: The Hague Convention on the Taking of Evidence 

Abroad in Civil or Commercial Matters, 83

Appendix C: Sample Letter Rogatory, 99

Appendix D: 28 U.S.C. §§ 1781–1783, 101

Appendix E: Sample Rule 16 Pretrial Order Addressing International 

Discovery Issues, 105

Table of Authorities, 111

About the Authors, 123 
vii

Acknowledgments

The authors are grateful for the contributions of the following individuals: U.S. District Judge Michael M. Baylson (E.D. Pa.), Peter Chang, 

Hanno Delp, Leah Friedman, Andrew M. Garbarski, Marcos Garcia

Dominguez, Xuling Ho, Wolfgang Junge, Nathaniel Khng, Rachel Lee, 

Laura Luongo, Hugh Meighen, Anne-Lise Menage, Tunde Oyewole, 

Claire Pauly, Pauline Rampazzo, and Sophie Rohnke. In addition, we 

would like to thank Sarah Caruana, Matthew Reed, and Phil Underwood for their research assistance. We further thank U.S. District 

Judge Michael M. Baylson (E.D. Pa.) for providing a sample Rule 16 

Pretrial Order addressing international discovery issues for inclusion 

in this guide.

1

I. Introduction

At an increasing rate, U.S. courts are hearing cases in which parties 

seek evidence located abroad or parties to a foreign or international 

proceeding seek evidence located in the United States. International 

discovery issues pose difficult and complex challenges, at both the 

procedural and substantive levels. This guide seeks to address these

issues by providing a practical overview of cross-border discovery 

questions that commonly arise in civil cases before federal courts.

In considering these matters, it is important to emphasize that the 

U.S. approach to the taking of evidence differs significantly from that 

seen elsewhere in the world. The liberal, party-driven approach to discovery in the United States is unique. Other countries allow only very 

targeted discovery (typically referred to as “disclosure”) and, in certain 

cases, with strict oversight by the judiciary. To place U.S. evidentiary 

procedures in context, Appendix A summarizes the relevant domestic 

discovery and disclosure rules in several jurisdictions frequently involved in U.S. litigation and explains how those jurisdictions are likely 

to address requests for assistance with discovery.

In the United States, there are a limited number of treaties and 

laws that address the taking of evidence in international disputes. The 

most significant are the Hague Convention on the Taking of Evidence 

Abroad in Civil or Commercial Matters, a multilateral treaty detailing 

procedures for the taking of evidence among signatory countries, and 

28 U.S.C. §§ 1781–1783. In Société Nationale Industrielle Aérospatiale 

v. U.S. District Court for the Southern District of Iowa,

1 the Supreme 

Court considered whether the Hague Convention was the mandatory 

or exclusive means by which a party to a U.S. proceeding may obtain 

documents or information from a foreign signatory. The Court determined that it is not. This decision, the Hague Convention, and relevant statutes are discussed in detail in this guide.

U.S. courts and litigants need to be aware that matters relating to 

the taking of evidence are not always considered “merely” procedural 

in the cross-border context. In some countries, courts retain control 

over the taking of evidence. Party-initiated efforts (such as those used 

 

1. 482 U.S. 522 (1987).
Discovery in International Civil Litigation

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in the United States) within a foreign court’s territorial jurisdiction are 

often viewed as infringing on the foreign court’s jurisdiction and the 

sovereignty of the foreign state. These sorts of conceptual differences 

are important for U.S. courts to consider when undertaking a comity 

analysis to determine whether an application seeking discovery abroad 

will be granted.

The taking of evidence across national borders is a lengthy and 

often complicated matter that can involve questions of U.S., foreign, 

and international law. The process can take more than a year in some 

circumstances and is not always guaranteed to be successful. Although 

the U.S. Department of State does not provide assistance in individual 

cases, its website includes some useful background information on the 

process and may provide insight with respect to a particular foreign 

state.2

 

2. U.S. Department of State, International Judicial Assistance—Country Information, http://travel.state.gov/content/travel/english/legal-considerations/judicial/country. 

html [hereinafter U.S. Department of State, Country Information].
3

II. Discovery in a Foreign Jurisdiction to Assist 

Proceedings in the United States

Transnational litigation often involves parties in a U.S. court who are 

seeking evidence that is located abroad.3 The approach to this type of 

discovery may vary depending on whether the evidence sought is in 

the possession of a party or a non-party.

Foreign states are often unfamiliar with and wary of U.S. discovery 

practices. Their concern, in part, arises from the intrinsic differences 

between discovery procedures available in the United States and those 

available in the rest of the world, particularly civil law countries. Many 

states view U.S.-style discovery as overbroad and, in some cases, as 

antithetical to deeply held conceptions of fairness. Furthermore, many 

states view the taking of evidence within their borders as implicating 

their own state sovereignty, particularly in circumstances in which the 

evidence sought is taken from a national or an entity incorporated under the state’s laws.

A. Planning for International Discovery in a U.S. Proceeding

International discovery takes careful planning. Judges should encourage the parties to identify as early as possible whether international 

discovery might be necessary and to resolve consensually any crossborder discovery issues that arise during a Rule 26(f) (meet and confer) conference under the Federal Rules of Civil Procedure. Rule 16(a)

scheduling conferences can also be used to help the parties work together to develop a cooperative protocol for collecting evidence and 

avoid needless motion practice when a case has strong cross-border 

characteristics.

When assessing the range of cross-border issues that might arise in 

a particular case, judges and parties should address

• the nature of the evidence at issue (e.g., documentary, testimonial); 

 

3. The reasons a party may seek discovery abroad are numerous. For example, 

apart from the involvement of parties who have connections to foreign states, a party 

may seek discovery abroad if it becomes necessary for a judge to determine issues of 

foreign law under Federal Rule of Civil Procedure 44.1.
Discovery in International Civil Litigation

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• the subjects to which the evidence pertains;

• the geographical location of the evidence;

• the owner or custodian of the evidence (e.g., a party, an affiliate or employee of a party, a non-party, a government);

• how the parties intend to request production of evidence;

• whether another party intends to consent to or oppose the 

request;

• applicable treaties, conventions, and foreign laws or practices, 

including mutual legal assistance treaties (MLATs), blocking 

or data protection laws, privilege issues, and sovereignty or 

comity interests; 

• whether the Federal Rules of Civil Procedure will govern the 

procedure of any deposition to be taken in a foreign country, 

and whether the U.S. court will resolve disputes arising during 

such deposition;

• practical obstacles or delays inherent to discovery in the target 

jurisdiction; and

• electronic discovery issues. 

Parties should be urged to identify and address cross-border discovery 

issues in the Rule 26(f) discovery plan and to set a schedule that accounts for foreseeable delays or other problems in order to prevent 

future disputes.

Given the complex issues raised by requests for international discovery, disputes in this area often require the involvement of a judge.

The remainder of this chapter addresses some of the issues that may 

arise.

B. Discovery from a Party to a U.S. Federal Litigation

Generally, when one party to a U.S. federal litigation seeks evidence 

from another party, the Federal Rules of Civil Procedure govern, even 

when the evidence is located in a foreign jurisdiction.4 However, to 

 

4. See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522 (1987) (permitting litigants seeking evidence located abroad to proceed under the Federal Rules); Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 105 F.R.D. 

435, 445 (S.D.N.Y. 1984) (“[T]he federal courts have repeatedly acknowledged their 

own authority to compel a party to provide relevant discovery pursuant to the normal 

procedures outlined in the federal rules, both civil and criminal, regardless of where 

the information is actually located.”).
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

5

avoid an argument that the Federal Rules do not apply when evidence 

is located abroad, requesting parties often seek discovery by alternative 

means. Several of these alternatives, including Hague Convention letters of request and letters rogatory, are discussed below in the context 

of non-party discovery (section II.C), although these procedures can 

also be used by and against parties to a proceeding.5

1. Deposition of a Party or a Party’s Employees Located Outside the 

United States

Cross-border discovery issues often require special attention. For example, the question of which corporate employees may be compelled 

to give testimony on notice takes on greater significance in the crossborder context because the requesting party may not be able to use a 

subpoena as a means of obtaining the requested testimony.6 Instead, 

the requesting party may be required to submit its requests by letters 

rogatory or the Hague Convention—less familiar devices that can result in delay. When considering what approach to take, the party 

seeking discovery must determine whether the employee is an officer, 

director or managing agent of the corporate party whose deposition 

can be compelled pursuant to a notice of deposition or whether the 

witness is a lower-level employee whose deposition must be obtained 

by other means.7 If the sought-after witness is not an officer or director 

but may be a managing agent, resolution of the issue may require 

submissions from the parties and a hearing to weigh competing 

positions.8

Determining where a deposition of a foreign party or corporate 

employee should take place can also trigger disputes among parties.

 

5. See T. Markus Funk, Mutual Legal Assistance Treaties and Letters Rogatory: A 

Guide for Judges (Federal Judicial Center 2014), available at http://www.fjc.gov/

public/pdf.nsf/lookup/mlat-lr-guide-funk-fjc-2014.pdf/$file/mlat-lr-guide-funk-fjc2014.pdf.

6. If the witness abroad is a U.S. national, a subpoena may be issued under 28 

U.S.C. § 1783. See supra section II.C.3.

7. See Dubai Islamic Bank v. Citibank N.A., No. 99 CIV. 1930 (RMB) (THK),

2002 WL 1159699, at *2–3 (S.D.N.Y. May 31, 2002) (discussing five-factor, fact-specific analysis to determine whether an employee is a “managing agent” of a corporate 

party whose deposition may be compelled pursuant to a notice of deposition).

8. See id. at *2 (noting numerous conferences and “voluminous submissions” 

required to decide the issue).
Discovery in International Civil Litigation

6

Although a requesting party may designate the location of a deposition 

under the Federal Rules of Civil Procedure, there is a general presumption that the deposition of a defendant (or an employee of the 

defendant) should take place at the deponent’s residence or place of 

business, even if that location is overseas.9 This presumption may be 

overcome, however, when practical considerations weigh in favor of 

holding the deposition in the United States. For example, if the law of 

the foreign state prohibits U.S.-style depositions or otherwise makes 

them impractical and other considerations of cost, burden, litigation 

efficiency, or the defendant’s contacts with the United States weigh in 

favor of a deposition here, a court may order the deposition to take 

place in the United States.10 Plaintiffs, on the other hand, are typically 

required to be deposed in the forum in which they chose to file suit, 

unless there was no choice of jurisdiction or there is other good cause 

to depart from the general rule.11

2. Documents Outside the United States

If a party asserts that documents must be obtained from the responding party’s foreign affiliate, courts consider whether the documents are 

within the responding party’s “possession, custody, or control” under 

Federal Rule of Civil Procedure 34.

12 Neither strict legal ownership 

nor physical possession is required for a foreign party to have “control” over documents. Rather, the requesting party need only show 

that the responding party has the practical ability to obtain the documents from its foreign affiliate.13

When a foreign statute prohibits disclosure of evidence sought by 

a party, courts have sometimes required the responding party to make 

 

9. See Fed. R. Civ. P. 30(b)(1); United States v. Halliburton Co., 270 F.R.D. 26, 

29 (D.D.C. 2010).

10. See Fausto v. Credigy Servs. Corp., 251 F.R.D. 427 (N.D. Cal. 2008) (ordering depositions in the United States because Brazilian law prohibited U.S. lawyers 

from taking depositions there and defendants often hosted Brazilian employees in the 

United States); Chris-Craft Indus. Prods., Inc. v. Kuraray Co., 184 F.R.D. 605 (N.D. 

Ill. 1999). 

11. See Aerocrine AB v. Apieron Inc., 267 F.R.D. 105, 108 (D. Del. 2010).

12. Fed. R. Civ. P. 34(a)(1); Shcherbakovskiy v. Seitz, No. 03 CV 1220 (RPP), 

2010 WL 3155169, at *3 n.7 (S.D.N.Y. July 30, 2010).

13. See The Bank of N.Y. v. Meridien Biao Bank Tanzania Ltd., 171 F.R.D. 135, 

146–47 (S.D.N.Y. 1997). 
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

7

a good faith effort to secure permission to disclose from the foreign 

government.14 Failing such a good faith effort (and, notably, sometimes even in cases in which a good faith effort has proven unsuccessful), an adverse inference against the non-disclosing party may be 

an appropriate measure for mitigating prejudice to the requesting 

party’s case.

15

C. Discovery from a Foreign Non-party

Discovery from a foreign non-party presents many of the same issues 

discussed above, as well as additional unique challenges. When voluntary cooperation is not an option (whether by law or lack of consent), U.S. litigants may seek discovery from foreign non-parties 

through the Convention on the Taking of Evidence Abroad in Civil or 

Commercial Matters (the “Hague Convention”) or letters rogatory, 

although both procedures may involve complicated considerations of 

foreign law, sovereignty, and international comity.16 If the responding 

 

14. Restatement (Third) of Foreign Relations Law of the United States

§ 442(2)(a) (1990) (“[A] court or agency in the United States may require the person 

to whom the order is directed to make a good faith effort to secure permission from 

the foreign authorities to make the information available.”). See Linde v. Arab Bank, 

PLC, 706 F.3d 92, 97–101 (2d Cir. 2013) (describing Arab Bank’s efforts to seek 

permission from authorities in relevant foreign states to produce responsive material 

subject to foreign bank secrecy laws); Strauss v. Credit Lyonnais, S.A., 249 F.R.D. 429 

(E.D.N.Y. 2008) (denying French bank’s request for a protective order covering 

materials subject to French bank secrecy law after multifactor analysis).

15. See Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y. 2010) (considering 

Arab Bank’s compliance with discovery obligations in light of foreign bank secrecy 

laws which Arab Bank argued prohibit the production of certain documents, and concluding that an adverse inference instruction can be a proper sanction under Fed. R. 

Civ. P. 37(b) even when the non-producing party has not been found to have engaged 

in bad faith or willful conduct); see also Linde, 706 F.3d at 116.

16. At least one court has held that when a party seeks discovery simultaneously 

under the Federal Rules and by letters rogatory, resort to letters rogatory does not 

prejudice the party’s right to seek discovery under the Federal Rules. See Dubai Islamic Bank v. Citibank N.A., No. 99 CIV. 1930 (RMB) (THK), 2002 WL 1159699, at 

*2–3 (S.D.N.Y. May 31, 2002). As the Hague Convention expressly states that it does 

not preclude any other method of obtaining disclosure pursuant to local law, the same 

reasoning presumably would apply to parallel requests involving the Convention. See 

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, art. 1, 

Mar. 18, 1970, 23 U.S.T. 2555, art. 27 [hereinafter Hague Convention]; Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 U.S. 522 (1987) (hold-
Discovery in International Civil Litigation

8

party is a U.S. citizen or resident located abroad, a court also may issue 

a subpoena for the requested testimony or documents under the 

Walsh Act, 28 U.S.C. § 1783.17

1. The Hague Convention

The Hague Convention is a multilateral treaty designed to facilitate the 

taking of evidence abroad (see Appendix B).18 The Hague Conference 

on Private International Law (the Hague Conference) negotiated the 

terms of the Hague Convention on March 18, 1970, with the intent to 

create a treaty to improve judicial cooperation between common law 

and civil law countries on issues of foreign discovery.19 These efforts 

were promoted by the United States, which had been frustrated with 

the practical difficulties of seeking evidence abroad.20 As of the date of 

this publication, the Hague Convention is in effect in more than 50 

countries (“contracting states”).21

 

ing that the Hague Convention, where applicable, is not the exclusive means by which 

to compel discovery from a party to a litigation located abroad).

17. See infra notes 90–91 and accompanying text. 

18. During the drafting of this guide, the Hague Conference on Private International Law (the “Hague Conference”) released the Draft Practical Handbook on the Operation of the Evidence Convention. Judges should refer to the Hague Conference’s website to ensure that they have access to the latest draft of this useful resource in interpreting and applying the rules of the Hague Convention when a party seeks discovery 

abroad. Draft Practical Handbook on the Operation of the Evidence Convention, Hague 

Conference on Private International Law (2014), http://www.hcch.net/upload/wop/

2014/2014sc_pd01en.pdf (last visited Mar. 5, 2015) [hereinafter Draft Handbook].

19. See Hague Convention, supra note 16; Draft Handbook, supra note 18 ¶¶ 5–

11. For further insight with respect to the terms of the Hague Convention, see Philip 

W. Amram, Explanatory Report on the 1970 Hague Evidence Convention, Hague Conference on Private International Law (1970), http://www.hcch.net/index_en.php?act=

publications.details&pid=2968&dtid=3 (last visited Mar. 5, 2015).

20. In Aérospatiale, the Supreme Court describes the interest of U.S. lawyers in 

particular in improving procedures for obtaining evidence abroad, which motivated 

the United States to take the initiative in proposing that an evidence convention be 

adopted. See Aérospatiale, 482 U.S. at 530–31 (citing Department of State, Convention 

on Taking of Evidence Abroad, S. Exec. Rep. No. 92-25, at 3 (1972) (statement of Carl 

F. Salans, Deputy Legal Adviser)).

21. Signatories to the Hague Convention include the United States, members of 

the European Union, China, Turkey, Singapore, and the Russian Federation. A complete list of signatories, declarations, and reservations is available on the Hague Conference website. See Status Table: Convention of 18 March 1970 on the Taking of Evi-
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

9

The Hague Convention streamlines procedures for seeking evidence abroad by allowing U.S. courts to request evidence directly from 

the designated central authority of a foreign state and bypass diplomatic channels. However, despite these enumerated procedures, the 

success of obtaining discovery through the Hague Convention, like

that of other methods, remains highly variable as well as potentially 

slow and expensive.22 It may take six months or more to receive a response pursuant to a letter of request submitted pursuant to the Hague 

Convention procedures.23

The success of Hague Convention procedures for parties to a U.S. 

litigation rests in large part on the local discovery rules of the state in 

which discovery is sought (“requested state”) and its willingness to 

permit U.S.-style discovery procedures. Appendix A provides a broad 

overview of local discovery practices in selected jurisdictions, including, where applicable, each contracting state’s approach to discovery 

under the Hague Convention.24

In the United States, the Hague Convention has become the preferred means of obtaining discovery from foreign non-parties to a U.S. 

litigation, largely because the mechanisms provided incorporate the 

 

dence Abroad in Civil or Commercial Matters, Hague Conference on Private International Law, http://www.hcch.net/index_en.php?act=conventions.status&cid=82 (last 

visited Mar. 5, 2015).

22. See Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522, 542 (1987).

23. See Report on the Work of the Special Commission of May 1985 on the Operation 

of the Convention, Hague Conference on Private International Law, § 3(A) (1986)

http://www.hcch.net/upload/scrpt85e_20.pdf (last visited Mar. 5, 2015) [hereinafter 

Hague Convention Report of 1986] (noting that the average delay in executing letters 

of request at the time of the May 1985 Special Commission meeting was one to six 

months); Draft Handbook, supra note 18, ¶¶ 248–52.

24. For additional information on a contracting state’s application of the Hague 

Convention, the Hague Conference has also made available online responses to a November 2013 questionnaire completed by a number of contracting states. See Publications: Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters: Questionnaires & Responses, Hague Conference on Private International Law, http://www.hcch.net/index_en.php?act=publications.details&pid=6043&

dtid=33 (last visited Mar. 5, 2015). The Hague Conference also maintains a bibliography of materials on the Hague Convention. See Bibliography: Convention of 18 

March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Hague 

Conference on Private International Law, http://www.hcch.net/index_en.php?act= 

conventions.publications&dtid=1&cid=82 (last visited Mar. 5, 2015).
Discovery in International Civil Litigation

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express terms of the responding jurisdiction. Parties to a U.S. litigation 

will often employ the Hague Convention in parallel with other means 

of procuring evidence so as to cover all possible avenues. Encouraging 

parties to do so can save time and effort in the discovery process. Additionally, as discussed in section II.D, discovery pursuant to the 

Hague Convention typically may proceed notwithstanding blocking 

statutes enacted by the requested state.

25

a. Scope

The applicability of the Hague Convention is limited by several variables, some of which have engendered disagreement among contracting 

states. Most significantly, the treaty applies only to “civil or commercial matters” and for the pursuit of evidence to be used “in judicial 

proceedings, commenced or contemplated.”26 As neither variable is 

defined, contracting states have disagreed as to whether the Hague 

Convention applies in the context of certain proceedings.27 However, 

reports from the Hague Conference suggest that such disagreements 

have not hindered the successful use of the Hague Convention between contracting states.28

 

25. See infra section II.D.1.b for further information on blocking statutes.

26. See Draft Handbook, supra note 18, ¶¶ 47–57. The Hague Convention does 

not apply to criminal matters or arbitrations, or to matters in which the plaintiff is a 

state or agency thereof.

27. See Report on the Work of the Special Commission on the Operation of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Hague Conference on Private International Law, § 1 (1978), http://www.hcch.net/

upload/scrpt78e_20.pdf (last visited Mar. 5, 2015) [hereinafter Hague Convention 

Report of 1978]; Hague Convention Report of 1986, § 1(A), supra note 23; Report on 

the Work of the Special Commission of April 1989 on the Operation of the Hague 

Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial 

Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of 

Evidence Abroad in Civil or Commercial Matters, Hague Conference on Private International Law, Annex ¶ (a) (1989), http://www.hcch.net/upload/scrpt89e_20.pdf (last 

visited Mar. 5, 2015) [hereinafter Hague Convention Report of 1989]. The Hague 

Convention should be interpreted similarly across jurisdictions, given that it is to be 

interpreted in accordance with generally accepted principles of treaty interpretation. 

See Vienna Convention on the Law of Treaties arts. 31–33, May 23, 1969, 1155 

U.N.T.S. 331.

28. See Conclusions and Recommendations of the Special Commission on the 

Practical Operation of the Hague Apostille, Service, and Taking of Evidence and Access to Justice Conventions ¶ 13 (Feb. 2–12, 2009), http://www.hcch.net/upload/wop/
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

11

Contracting states further disagree as to the exclusivity of the 

Hague Convention procedures when one contracting state seeks evidence from another.29 The Supreme Court clarified the United States’ 

position in the seminal case Société Nationale Industrielle Aérospatiale 

v. U.S. District Court for the Southern District of Iowa, wherein the Supreme Court held that the Hague Convention is neither the exclusive 

nor the mandatory procedure for obtaining documents and information in a foreign signatory’s territory.30 The Court observed that 

both the text and history of the Hague Convention “unambiguously 

support[] the conclusion that it was intended to establish optional procedures that would facilitate the taking of evidence abroad.”31 It is 

significant that many contracting states operate on the assumption 

that the Hague Convention is the only means for securing discovery 

within the United States or other contracting states.32

 

jac_concl_e.pdf (last visited Mar. 5, 2015) [hereinafter Special Commission Conclusions and Recommendations of 2009]. The Hague Conference provides responses to 

questionnaires completed by contracting states describing, to a limited extent, each 

state’s application of the Hague Convention procedures. Included among the questions is how each state interprets the phrase “civil or commercial matters.” By way of 

example, the United States responded to this question by noting that “[t]he Central 

Authority will consider any request for evidence in a non-criminal proceeding that 

emanates from a tribunal or other authority that has judicial or adjudicatory powers.”

United States Response to Questionnaire of May 2008 relating to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial 

Matters (Evidence Convention), Hague Conference on Private International Law, 

http://www.hcch.net/upload/wop/2008usa20.pdf (last visited Mar. 5, 2015). More 

recently, the United States has indicated that it encountered problems with the interpretation of the phrase “civil or commercial.” United States Response to Questionnaire 

of November 2013 relating to the Hague Convention of 18 March 1970 on the Taking 

of Evidence Abroad in Civil and Commercial Matters (Evidence Convention), Hague 

Conference on Private International Law, http://www.hcch.net/upload/wop/2014/

2014sc_20us.pdf (last visited Mar. 5, 2015).

29. See Draft Handbook, supra note 18, ¶¶ 19–28.

30. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522, 533–47 (1987).

31. Id. at 538, 541 (emphasis added).

32. For more information on the approach of different contracting states to the 

Hague Convention, see Convention of 18 March 1970 on the Taking of Evidence Abroad 

in Civil or Commercial Matters, Questionnaires & Responses, Hague Conference on 

Private International Law, http://www.hcch.net/index_en.php?act=conventions.

publications&dtid=33&cid=82 (last visited Mar. 5, 2015).
Discovery in International Civil Litigation

12

Thus, if foreign discovery is sought in a U.S. proceeding, a requesting party may simultaneously seek evidence under the Hague Convention and under an alternative discovery mechanism. The responding party may then move for a protective order requiring the requesting party to comply with the Hague Convention. In assessing such 

cases, U.S. courts employ a comity analysis that weighs “the particular 

facts, sovereign interests, and likelihood that resort to [Hague Convention] procedures will prove effective.”33 When a party seeks discovery from a foreign non-party over whom the court lacks jurisdiction, 

courts have viewed resort to the Hague Convention procedures as 

“virtually compulsory” as compared with other means.34

As in civil discovery in the United States, the party resisting discovery bears the burden of showing that the discovery requested is 

irrelevant to the issues in the case or is overly broad, unduly burdensome, unreasonable, or oppressive.35

b. Procedure

The Hague Convention creates two basic mechanisms by which a 

party to a proceeding in a contracting state may seek evidence abroad.

First, it permits a judicial authority of a contracting state to submit a 

“letter of request” to the competent authority of the requested state for 

the purpose of obtaining evidence.36 Second, the Hague Convention 

permits the taking of evidence by a diplomatic officer, consular agent, 

or commissioner of a contracting state in the territory of another con-

 

33. Aérospatiale, 482 U.S. at 544–46; see also Milliken & Co. v. Bank of China, 

758 F. Supp. 2d 238, 246 (S.D.N.Y. 2010) (following comity analysis of the Restatement of Foreign Relations Law, together with additional factors articulated by courts 

within the Second Circuit); Rich v. KIS Cal., Inc., 121 F.R.D. 254, 257 (M.D.N.C. 

1988) (observing that Hague proponent “bears the burden of demonstrating the necessity for using those procedures”) (citing Aérospatiale, 482 U.S. at 546–47).

34. Orlich v. Helm Bros., Inc., 160 A.D.2d 135, 143–44 (N.Y. Sup. Ct. 1990); see 

also Gap, Inc. v. Stone Int’l Trading, Inc., No. 93 Civ. 0638 (SWK), 1994 WL 38651, 

at *1 (S.D.N.Y. Feb. 4, 1994) (“As a practical matter, in many cases the Hague 

Convention provides the only means to request documents or testimony from foreign 

non-parties over whom the court has no personal jurisdiction and who are beyond the 

subpoena power of the court.”).

35. Upper Deck Int’l B.V. v. Upper Deck Co., No. 11CV1741-LAB KSC, 2013 WL 

3746086, at *2 (S.D. Cal. July 12, 2013).

36. See Hague Convention, supra note 16, ch. 1.
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

13

tracting state under certain, limited circumstances.37 Each procedure is 

discussed below in turn.

i. Letters of Request

The Hague Convention permits a U.S. court to submit a letter of request to a designated “central authority” of the contracting state in 

which the evidence is sought.38 Once the central authority receives the 

letter of request, it transmits the letter of request to the competent judicial authority for execution.39 A list of central authorities designated 

for each state that is party to the Hague Convention is available on the 

Hague Conference website.40

Letters of request must specify basic information, including the 

parties, the nature of the proceedings, a description of the evidence 

sought, and, as appropriate, the specific documents or information 

requested to be disclosed.41 When a judicial authority executes a letter 

of request, it applies its local laws to the methods and procedures to be 

followed unless a requesting state specifies a “special method or procedure” in the letter of request.

42 In practice, this provision permits 

parties to request specific U.S. procedures that may not be available in 

the foreign jurisdiction in which the evidence is sought, “largely eliminat[ing] conflicts between the discovery procedures of the United 

States and the laws of foreign systems . . . without violating the sover-

 

37. See Hague Convention, supra note 16, ch. 2. Article 33 of the Hague Convention permits a contracting state to exclude, in whole or in part, the application of 

Chapter 2. Id. art. 33.

38. See id. arts. 2, 27(a). Contracting states are required to designate one or more 

central authorities to receive letters of request. See id. arts. 2, 24. 

39. See id. art. 2; see also Draft Handbook, supra note 18, ¶¶ 166–78.

40. See Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters: Central Authorities, Hague Conference on Private International 

Law, http://www.hcch.net/index_en.php?act=conventions.authorities&cid=82 (last 

visited Mar. 5, 2015).

41. See Hague Convention, supra note 16, arts. 3, 4; see also Draft Handbook, 

supra note 18, ¶¶ 102–40 (describing the content of a letter of request under the 

Hague Convention). 

42. Hague Convention, supra note 16, art. 9; Draft Handbook, supra note 18, 

¶¶ 137–38. Furthermore, the use of video links and similar technologies to assist in 

the taking of evidence abroad has been determined to be consistent with the framework of the Hague Convention. See Special Commission Conclusions and Recommendations of 2009, supra note 28, ¶¶ 55–57.
Discovery in International Civil Litigation

14

eignty of foreign nations.”43 This special method or procedure should 

be followed by the judicial authority unless (a) it is deemed “incompatible” with the law of the executing state or (b) performance is impossible as a result of internal practice and procedure or practical 

difficulties.44 The Hague Conference provides a model that may provide useful guidance as to the typical form and content of a letter of 

request.

45 In addition, it may be helpful to attach appropriate affidavits 

or declarations by the parties to a proceeding or by relevant experts, 

explaining the need and appropriateness of the requested foreign 

discovery.

If a witness refuses to provide evidence in response to a letter of 

request, the Hague Convention provides that the requested state shall 

use “appropriate” coercive procedures provided under domestic law to 

obtain the evidence.46 Once the central authority of the requested state

receives documents from the local court establishing the execution of 

the letter of request, these documents are sent to the requesting state

by the same channels through which the letter of request was 

received.47

ii. Diplomatic Officer, Consular Agent, or Commissioner

Pursuant to the Hague Convention, a diplomatic officer, consular 

agent, or commissioner of a contracting state may take evidence, without compulsion, from a person to aid a civil or commercial proceeding, although the permission of the state in which the evidence is being taken may be required.48

 

43. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522, 560–61 (1987) (Blackmun, J., concurring in part and dissenting in part).

44. Hague Convention, supra note 16, art. 9; see also Draft Handbook, supra note 

18, ¶¶ 215–29.

45. See Model for Letters of Request Recommended for Use in Applying the Hague 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial 

Matters, Hague Conference on Private International Law (1985), http://www.hcch.net/

index_en.php?act=publications.details&pid=3309&dtid=2 (last visited Mar. 5, 2015).

46. Hague Convention, supra note 16, art. 10.

47. See id. art. 13.

48. Hague Convention, supra note 16, arts. 15 (describing the authority of a U.S. 

diplomatic officer or consular agent taking evidence from a U.S. national), 16 (describing the authority of a U.S. diplomatic officer or consular agent taking evidence 

from a national of a third state), and 17 (describing the authority of a commissioner to 
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

15

However, the availability of this mechanism varies by contracting 

state. The Hague Convention permits a contracting state to exclude, in 

whole or in part, the application of provisions related to the taking of 

evidence by diplomatic officers, consular agents, or commissioners.49

Furthermore, the Hague Convention expressly permits contracting 

states to make certain declarations and impose additional obligations 

to employ this mechanism. For example, a contracting state may make 

a declaration that permits a diplomatic officer, consular agent, or 

commissioner to apply to a competent authority to obtain the evidence 

by compulsion.50 The United States and Italy, for example, have filed 

unconditional declarations permitting foreign states to take these 

actions.

Article 21 of the Hague Convention places certain limitations on 

the type of evidence a diplomatic officer, consular agent, or commissioner may take, as well as the method used to do so. Namely, the evidence (a) should not be of a kind that is incompatible with the law of 

the state in which the evidence is taken or contrary to any permission 

granted by the state; and (b) should not be taken in a manner forbidden by the law of the state in which the evidence is taken.51

When an attempt to take evidence using a diplomatic officer, consular agent, or commissioner has failed because the person has refused 

to give evidence, the letter of request mechanism may be employed.52

In the United States, foreign discovery by this second Hague Convention procedure could be considered redundant to the deposition 

authority provided under the Federal Rules of Civil Procedure. As the 

Supreme Court observed in Aérospatiale, at the time the Hague Convention was adopted, in the United States “Federal Rule of Civil Procedure 28(b) clearly authorized the taking of evidence on notice either 

in accordance with the laws of the foreign country or in pursuance of 

 

take evidence from a person located abroad). See also Draft Handbook, supra note 18,

¶¶ 363–406.

49. See Hague Convention, supra note 16, art. 33.

50. See id. art. 18; see also id. art. 19 (permitting a competent authority to lay 

down conditions as to the time and place of the taking of evidence, as well as to require reasonable advance notice).

51. See id. art. 21(a), (d).

52. See id. art. 22.
Discovery in International Civil Litigation

16

the law of the United States.”53 Thus, in practice, parties may seek to 

employ this Hague Convention mechanism to take depositions in a 

foreign country by using the notice provision of Rule 28(b)(1) or the 

procedure to appoint a commissioner under Rule 28(b)(2).

54

c. The Hague Convention in Practice

A requested state may refuse to consider or execute a letter of request

made pursuant to the Hague Convention when it concludes that

• the assistance sought is not covered by the Hague Convention 

(e.g., the matter for which evidence is requested is not “civil or 

commercial” in nature and/or does not relate to “judicial proceedings”);55

• the letter of request does not comply with the provisions of the 

Hague Convention, in which case the requested state is required to inform the central authority of the requesting state of 

its specific objections;56

• execution of the letter of request does not fall within the functions of the judiciary of the requested state;

57 or

• the sovereignty or security of the requested state would be 

prejudiced.58

Furthermore, many of the Hague Convention’s contracting states, including the United States, have issued limiting declarations and reservations. Perhaps most relevant to U.S. litigants are the various reservations made under Article 23 of the Hague Convention. Article 23 

allows a contracting state 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.”59 Numerous countries have 

made this Article 23 declaration, including Argentina, Australia, Ger-

 

53. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522, 534 n.16 (1987).

54. See Laura W. Smalley, 71 Am. Jur. Trials 1 (Originally published in 1999).

55. Hague Convention, supra note 16, art. 1.

56. Id. art. 5.

57. Id. art. 12(a).

58. Id. art. 12(b). Refusals to execute are infrequent in practice. See Hague Convention Report of 1978, supra note 27, § 5(F).

59. See Hague Convention, supra note 16, art. 23; Draft Handbook, supra note 18, 

¶¶ 316–35.
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

17

many, Italy, and South Africa.60 The United Kingdom, China, and 

France, among other states, have submitted qualified Article 23 reservations, limiting the broad language permitted by Article 23 and focusing instead on avoiding overly broad “fishing expeditions.”61 Only 

a small fraction of contracting states, including the United States, Israel, and Russia, have not submitted any reservation under Article 

23.62

Questions regarding the admissibility of evidence gathered in response to a letter of request may arise once a party applies for a letter 

of request or after such evidence is received and a party seeks admission of that evidence at trial. U.S. courts have declined to reject applications for letters of request on the basis that the evidence requested 

would be inadmissible. U.S. courts have observed that the Federal 

Rules of Civil Procedure allow the discovery of information which, 

though not itself admissible, may disclose or lead to admissible evidence.63

 

60. See Table Reflecting Applicability of Articles 15, 16, 17, 18 and 23 of the Hague 

Evidence Convention, Hague Conference on Private International Law, May 2014, 

http://www.hcch.net/upload/appl-table20e.pdf (last visited Mar. 5, 2015) [hereinafter 

Hague Convention Applicability Table].

61. See In re Asbestos Ins. [1985] 1 W.L.R. 331 (House of Lords). The United 

Kingdom allows such reservations to be overcome if a letter of request provides 

sufficient specificity when identifying the documents to be produced or examined. See 

Hague Convention Report of 1978, supra note 27, § 2; Hague Convention Report of 

1986, supra note 23, § 4 (noting that the primary concern with respect to pretrial 

discovery is to preclude “fishing expeditions”); Hague Convention Report of 1989, 

supra note 27, Annex ¶ (d) (in which the Special Commission urges contracting states 

to limit the scope of their reservations under Article 23 to facilitate the use of the 

Hague Convention); see also Conclusions and Recommendations Adopted by the Special 

Commission on the Practical Operation of the Hague Apostille, Evidence and Service 

Conventions, Hague Conference on Private International Law ¶ 23 (2003), http://www.

hcch.net/upload/wop/lse_concl_e.pdf; Draft Handbook, supra note 18, ¶ 63.

62. See Hague Convention Applicability Table, supra note 60.

63. In re Urethane Antitrust Litig., 267 F.R.D. 361, 365–66 (D. Kan. 2010) (rejecting defendant’s assertion that a list of questions to be put to persons in Germany 

(and enclosed with a Hague Convention letter of request) should be modified on the 

grounds that the questions seek evidence that would not be admitted at trial based on 

hearsay or other grounds); see also Upper Deck Int’l B.V. v. Upper Deck Co., No. 

11CV1741-LAB KSC, 2013 WL 3746086, at *2 (S.D. Cal. July 12, 2013); Fed. R. Civ. 

P. 26.
Discovery in International Civil Litigation

18

When a foreign court executes a letter of request for a deposition 

using its own procedures, Federal Rule of Civil Procedure 28(b)(4) 

specifically provides that “[e]vidence obtained in response to a letter 

of request need not be excluded merely because it is not a verbatim 

transcript, because the testimony was not taken under oath, or because 

of any similar departure from the requirements for depositions taken 

within the United States.”64

While the Hague Convention is the primary treaty used to seek 

evidence abroad, parties may rely on other international agreements.

For example, the United States is a party to a number of bilateral treaties that address the taking of evidence.65

2. Letters Rogatory

In addition to the Hague Convention, there are other avenues open to 

a U.S. party seeking evidence located abroad. Perhaps the best known 

of these mechanisms involves letters rogatory, which are used by both 

U.S. and foreign courts.66 Appendix C is a sample letter rogatory.

A letter rogatory is a formal request from a court in which an action is pending to a foreign court, asking for assistance in performing a 

 

64. Fed. R. Civ. P. 28(b)(4).

65. See, e.g., Agreement Relating to the Taking of Evidence with the Federal 

Republic of Germany (1956); Agreement Relating to the Taking of Evidence with the 

Federal Republic of Germany (1980); The Agreement to Facilitate the Conduct of 

Litigation with International Aspects in Either Country with Sierra Leone (1966); The 

Agreement between the United States and the U.S.S.R. relating to the Procedure To Be 

Followed in the Execution of Letters Rogatory (in force between the United States and 

Ukraine) (1935); Treaty on Cooperation between the United States of America and the 

United Mexican States for Mutual Legal Assistance (1987); Agreement Exempting 

from Authentication Signatures Attached to Letters Rogatory Exchanged Between 

Puerto Rico, the Philippine Islands, and Spain, with Declaration (1901). The United 

States has not yet signed the Inter-American Convention on the Taking of Evidence 

and Additional Protocol. See Inter-American Convention on the Taking of Evidence, 

Organization of American States, http://www.oas.org/juridico/english/sigs/b-37.html 

(last visited Mar. 5, 2015); Signatories and Ratifications: Additional Protocol to the 

Inter-American Convention on the Taking of Evidence Abroad, Organization of 

American States, http://www.oas.org/juridico/english/sigs/b-51.html (last visited Mar. 

5, 2015).

66. See Funk, supra note 5.
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

19

judicial act.67 In the absence of an applicable treaty like the Hague 

Convention, letters rogatory may be the only means by which a party 

can compel evidence from a foreign non-party who is not subject to 

the personal jurisdiction of the U.S. court. However, the letters rogatory procedure is both slow and costly.

a. Scope

A party seeking to compel discovery abroad may apply for a letter rogatory from a U.S. judge. U.S. courts have consistently held that they 

have the power to issue letters rogatory pursuant to 28 U.S.C. § 1781

(see Appendix D) and Federal Rule of Civil Procedure 28(b), some 

finding the ability to issue letters rogatory to be within the “inherent” 

authority of the court.68 Rule 28(b) specifically provides that a deposition may be taken in a foreign country by letter rogatory,69 although 

 

67. Title 22 (Foreign Relations) of the Code of Federal Regulations defines “letters rogatory” as follows: 

In its broader sense in international practice, the term letters rogatory denotes a 

formal request from a court in which an action is pending, to a foreign court to 

perform some judicial act. Examples are requests for the taking of evidence, the 

serving of a summons, subpoena, or other legal notice, or the execution of a civil 

judgment. In United States usage, letters rogatory have been commonly utilized only 

for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts 

toward each other, and customarily embody a promise of reciprocity.

22 C.F.R. § 92.54. Notably, while the United States has signed the Inter-American 

Convention on Letters Rogatory, it has entered a reservation stating that the convention does not apply to the taking of evidence (although the convention does apply to 

letters rogatory for the performance of procedural acts, such as service of process, 

summonses, or subpoenas). See Inter-American Convention on Letters Rogatory: Signatories and Ratifications, Organization of American States, http://www.oas.org/

juridico/english/sigs/B-36.html (last visited Mar. 5, 2015).

68. See, e.g., United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958); Barnes & 

Noble, Inc. v. LSI Corp., No. C 11-02709 EMC LB, 2012 WL 1808849, at *2 (N.D. 

Cal. May 17, 2012); see also 28 U.S.C. § 1781; Fed. R. Civ. P. 28(b). 

69. See Fed. R. Civ. P. 28(b); see also Lantheus Med. Imaging, Inc. v. Zurich Am. 

Ins. Co., 841 F. Supp. 2d 769, 776 (S.D.N.Y. 2012) (stating that courts apply the discovery principles of the Federal Rules of Civil Procedure in deciding whether to issue 

letters rogatory); Asis Internet Servs. v. Optin Global, Inc., No. C-05-05124 JCS, 2007 

WL 1880369, at *3 (N.D. Cal. June 29, 2007) (“Ultimately, a court’s decision whether 

to issue a letter rogatory requires an application of Rule 28(b) in light of the scope of 

discovery provided for by the Federal Rules of Civil Procedure.”).
Discovery in International Civil Litigation

20

foreign courts have found U.S.-style depositions to be problematic and 

a potential infringement on the sovereignty of the foreign state.70

In determining whether a letter rogatory should be granted, U.S. 

courts have held that there must be some level of justification for denying the request. Certain courts have held that denial of a letter rogatory under Rule 28(b) requires “good reason.”71 A court may also place 

limitations on the scope of discovery when the discovery abroad may 

be unduly burdensome or expensive.72 The comity analysis described 

with respect to the Hague Convention has also been applied by courts 

in determining whether to grant an application for a letter rogatory.73

b. Procedure

The U.S. Department of State advises that letters rogatory concerning

requests for evidence should be as specific as possible and describe the 

 

70. See, e.g., Orlich v. Helm Bros., Inc., 160 A.D.2d 135, 144, 560 N.Y.S.2d 10, 15 

(N.Y. App. Div. 1990) (“Since fact gathering is a judicially controlled process in civil 

law nations such as West Germany, the non-judicial taking of evidence located within 

their territory is regarded as an affront to their sovereignty.”).

71. In re Bankers Trust Co. v. Bethlehem Steel Corp., 752 F.2d 874, 890 (3d Cir. 

1984); Evanston Ins. Co. v. OEA, Inc., No. Civ. S-02-1505 (DFL) (PAN), 2006 WL 

1652315, at *1–2 (E.D. Cal. June 13, 2006); Brake Parts, Inc. v. Lewis, No. 09-132 

(KSF), 2009 WL 1939039, at *2 (E.D. Ky. July 6, 2009); B & L Drilling Electronics v. 

Totco, 87 F.R.D. 543, 545 (W.D. Okla. 1978); United States v. Badger, No. 2:10-CV00935, 2013 WL 1309165, at *7 (D. Utah Mar. 31, 2013). “Good reason” for denying 

a request for letters rogatory has been found in cases in which a party has not explained efforts to obtain requested discovery, and cases in which discovery can be 

obtained from another source that is more convenient, less burdensome, or less expensive. In re Letters Rogatory from Canada, No. 08-MC-50465-DT, 2008 WL 

2760963, at *2 (E.D. Mich. July 15, 2008).

72. See Philan Ins. Ltd. v. Frank B. Hall & Co., 138 F.R.D. 45, 46 (S.D.N.Y. 1991)

(granting letters rogatory but instructing the requesting party to bear some of the expense); DBMS Consultants Ltd. v. Computer Assocs. Int’l, Inc., 131 F.R.D. 367, 370 

(D. Mass. 1990) (limiting the examination of a witness located abroad to written questions in the first instance, rather than the oral examination requested, to limit expense 

and burden).

73. Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp. 2d 769, 

792–96 (S.D.N.Y. 2012) (applying the comity analysis in Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 U.S. 522 (1987), and Restatement 

(Third) of Foreign Relations Law of the United States § 442 when considering a request to issue amended letters rogatory directed to Canada (a non-party to the Hague 

Convention)).
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

21

particular procedures to be followed, including whether a verbatim 

transcript is required, whether a witness should be placed under oath, 

and other similar elements.74 The Department of State website includes 

an example of a letter rogatory for guidance,75 although it is important 

to note that individual countries may have specific requirements regarding the form and content of letters rogatory.76

The letters rogatory mechanism relies primarily on the use of diplomatic channels.77 After counsel prepares a letter rogatory, the letter 

must be signed by a U.S. judge and, if required by the foreign state 

from which assistance is sought, authenticated.78 Letters rogatory are 

typically conveyed through the Department of State to the U.S. Embassy, to the Ministry of Foreign Affairs in the target jurisdiction, and 

to the Ministry of Justice in the target jurisdiction before arriving in a 

foreign court that can execute the letter.79

U.S. courts also have the authority to transmit letters rogatory to 

the proper foreign authority or directly to the court if the rules of the 

foreign court permit this practice.80 Once the letter rogatory is executed, the foreign court transmits it back through the aforementioned 

diplomatic channels, and the executed letter rogatory is sent to the 

requesting court or, on some occasions, directly to requesting 

counsel.81

c. Letters Rogatory in Practice 

Although letters rogatory are a key means of obtaining international

discovery, the mechanism faces several difficulties. First and foremost, 

letters rogatory are a means by which a court may request assistance 

 

74. See U.S. Dep’t of State, Preparation of Letters Rogatory, http://travel.state.gov/

content/travel/english/legal-considerations/judicial/obtaining-evidence/preparationletters-rogatory.html (last visited Mar. 5, 2015) [hereinafter U.S. Department of State, 

Letters Rogatory].

75. See id.

76. For additional information, parties may be directed to the U.S. Department of 

State’s overview on country-specific evidence-gathering considerations. See U.S. Department of State, Country Information, supra note 2.

77. See 22 C.F.R. § 92.66 (1995). 

78. See U.S. Department of State, Letters Rogatory, supra note 74.

79. Id.

80. See 28 U.S.C. § 1781.

81. See U.S. Department of State, Letters Rogatory, supra note 74.
Discovery in International Civil Litigation

22

from a foreign judicial authority; in the absence of a treaty or an 

agreement requiring cooperation, the foreign state has no obligation to 

provide the assistance sought.82 Consequently, there have been a number of instances in which foreign courts have rejected entirely, or 

failed to act on, a letter rogatory submitted by a U.S. court. Foreign 

courts have rejected assistance when provision of the evidence would 

violate foreign blocking or secrecy laws or be duplicative of evidence 

available in the United States.83 Foreign courts have also rejected letters rogatory or have been unwilling to execute the full extent of the 

assistance sought when the discovery procedures requested have conflicted with the procedures available pursuant to the rules of that 

court, including requests that seek pretrial discovery. Some courts 

have refused to execute requests on the grounds that a particular request for pretrial discovery constitutes an impermissible “fishing 

expedition.”84

Not only is the letters rogatory procedure unpredictable, it is also 

notoriously slow and cumbersome. The Department of State currently 

estimates that execution of letters rogatory can take a year or more.85

Nevertheless, letters rogatory can be a useful means of seeking discovery abroad, in particular because it is a voluntary mechanism and 

thus would not infringe on the sovereignty of the responding jurisdiction.86 Furthermore, letters rogatory usually result in some form of 

assistance, even if the scope and type of assistance may be limited or 

revised as compared with the original request, since foreign courts 

want to provide whatever assistance is possible for reasons of international comity. One common way that a foreign court may limit the 

request is to only allow production of evidence that is permitted by its 

own domestic procedures.87 In such instances, U.S. courts may diminish the weight of, or deem inadmissible, evidence provided pursuant 

 

82. Restatement (Third) of Foreign Relations Law of the United States § 473 

(1987).

83. See, e.g., Gary Born & Peter Rutledge, International Civil Litigation in United

States Courts 972–73 (5th ed. 2011).

84. See, e.g., In re Asbestos Ins. Coverage Cases [1985] 1 All E.R. 716; Rio Zinc 

Corp. v. Westing House Electric Corp. [1978] AC 547; Panayaiotou v. Sony Music 

Entertainment (UK) Ltd. [1994] ch. 142.

85. See U.S. Department of State, Letters Rogatory, supra note 74.

86. See id.

87. See Hague Convention, supra note 16, art. 9.
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

23

to a letter rogatory.88 However, as described above in section II.C.1.c

with respect to letters of request under the Hague Convention, courts 

need not reject an application for a letter of request or letters rogatory 

on the basis that the requested evidence would not be admissible; rather, courts apply the discovery principles contained in Federal Rule 

of Civil Procedure 26.89

3. Subpoena to a U.S. Citizen or Resident Abroad Under the Walsh 

Act, 28 U.S.C. § 1783

Evidence found in a foreign country may also be sought pursuant to 

federal statutory law. Under the Walsh Act, 28 U.S.C. § 1783, and 

Federal Rule of Civil Procedure 45(b)(3), a federal court may issue a 

subpoena for testimony or documents from a national or resident of 

the United States who is in a foreign country if the evidence is “necessary in the interest of justice” and is “not possible to obtain . . . in any 

other manner.”90 The Walsh Act originally pertained solely to criminal 

actions, and it has seldom been used in the context of civil actions.91

 

88. See Wynberg v. Nat’l Enquirer, Inc., 564 F. Supp. 924, 930 (C.D. Cal. 1982)

(rejecting statements collected in response to letters rogatory transmitted from Sweden, as the request was not executed in accordance with the terms of the court order, 

and the witnesses were not sworn, no cross-examination was permitted, and no verbatim transcript was made). For example, Title 22 (Foreign Relations) of the Code of 

Federal Regulations, when defining “letters rogatory” provides as follows:

The legal sufficiency of documents executed in foreign countries for use in judicial 

proceedings in the United States, and the validity of the execution, are matters for 

determination by the competent judicial authorities of the American jurisdiction 

where the proceedings are held, subject to the applicable laws of that jurisdiction.

22 C.F.R. § 92.54 (1995). 

89. See, e.g., Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp. 2d 

769, 776 (S.D.N.Y. 2012); Brey Corp. v. LQ Mgmt., L.L.C., No. AW-11-CV-00718-

AW, 2012 WL 3127023, at *4 (D. Md. July 26, 2012).

90. 28 U.S.C. § 1783(a); Fed. R. Civ. P. 45(b)(3). 

91. But see, e.g., Estate of Yaron Ungar v. Palestinian Auth., 412 F. Supp. 2d 328 

(S.D.N.Y. 2006) (Court found that it was in the interest of justice to issue the subpoena due to the Palestinian Authority’s intent to evade judgment and the inability 

of plaintiffs to secure judgment without the information requested under the subpoena.); Kleisch & Co. v. Liberty Media Corp., 217 F.R.D. 517 (D. Colo. 2003) (Court 

granted a subpoena pursuant to the Walsh Act requiring a non-party U.S. citizen residing in Germany to appear and be deposed by the defendant. Court found that it was 

in the interest of justice to grant the subpoena because the deposition could recover 
Discovery in International Civil Litigation

24

4. The Legal Procedures of the Foreign State

Parties to a U.S. litigation may also pursue discovery using the legal

procedures of the foreign state from which discovery is sought.92 If a 

party collects evidence using the foreign state’s procedures, questions 

regarding the admissibility of such evidence may arise. However, Federal Rule of Civil Procedure 28(b) explicitly permits the U.S. court to 

accept such deposition evidence despite certain procedural defects.93

Appendix A provides an overview of local discovery procedures in 

sample foreign jurisdictions.

D. Obstacles to U.S.-Style Discovery

Parties in a U.S. court may object to the taking of evidence based on 

standard concerns about relevance, scope, and similar issues.94 Discovery across borders also can involve a number of objections that are 

unique to the cross-border context, including matters relating to data 

protection laws and blocking statutes, competing sovereignty interests, 

and foreign privileges or immunities.

1. Data Protection Laws and Blocking Statutes

Many governments have taken an active role in regulating the flow of 

information across borders. Two forms of legislation that frequently 

arise in international litigation are data protection laws and blocking 

statutes. Data protection laws prohibit, with narrow exceptions, the 

transmission of data that are identifiable to a person (e.g., a name, address, or identification number) outside of participating jurisdictions.

 

relevant information, and the plaintiff had not provided support for his assertion that 

the subpoena constituted harassment of the witness.).

92. See Graig J. Alvarez, Conducting Discovery in Foreign Countries, in International Litigation—Defending and Suing Foreign Parties in U.S. Federal Courts 279 

(David J. Levy ed., 2003).

93. “Evidence obtained in response to a letter of request need not be excluded 

merely because it is not a verbatim transcript, because the testimony was not taken 

under oath, or because of any similar departure from the requirements for depositions 

taken within the United States.” Fed. R. Civ. P. 28(b). See, e.g., Westernbank Puerto 

Rico v. Kachkar, No. CIV. 07-1606 (ABC/BJM), 2009 WL 530087, at *2 (D.P.R. Jan. 7, 

2009) (denying the request of defendants to bar the use of trial “deposition notes” 

taken in Oslo, Norway, on the grounds that the notes are not a verbatim transcript of 

the deposition); see also United States v. Salim, 855 F.2d 944, 952 (2d Cir. 1988).

94. See Fed. R. Civ. P. 26(b).
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

25

Blocking statutes are more tailored in scope and restrict the transfer of 

documents or information for use in foreign proceedings. Both areas of 

law are developing rapidly around the world, requiring courts to keep 

abreast of changes in the law. For example, several U.S. courts have 

ordered discovery even when the party being compelled to produce 

evidence contends that foreign data protection laws or blocking statutes prohibit the ordered disclosure.95

While the data protection laws and blocking statutes discussed 

below may pose hurdles to accomplishing the discovery required in 

any given case, data protection officers in the specific country of concern may be willing to consider specific requests for exemptions from 

general prohibitions on a case-by-case basis.

a. Data Protection Laws

Of the numerous jurisdictions that have enacted data protection laws, 

the European Union (EU) is the most often encountered in U.S. 

courts. The EU Data Privacy Directive provides a framework for implementation of local data protection laws by individual member jurisdictions.96 The EU Directive broadly defines personal data to mean 

“any information relating to an identified or identifiable natural person,”97 which may include all communications containing a name, address, identification number, or other identifying information, such as 

information within a To/From/CC field of an e-mail or memo.

The EU prohibits production of certain categories of sensitive personal data (racial or ethnic origin, political opinion, religious and 

philosophical beliefs, trade-union membership, and data concerning 

the person’s health or sex life) except when the subject has freely consented to such production.98 Violations of these laws can result in 

hefty fines payable to the person whose data were impermissibly retained, disclosed, or transferred. Parties to U.S. proceedings have 

 

95. See, e.g., In re Vivendi Universal, S.A. Sec. Litig., No. 02CIV5571RJHHBP, 

2006 WL 3378115, at *3 (S.D.N.Y. Nov. 16, 2006); Columbia Pictures Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 2080419, at *12 (C.D. Cal. May 29, 2007). 

See also Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 U.S. 

522, 544, n.29 (noting that U.S. courts can order a party to produce evidence even 

though the act of production may violate a foreign statute).

96. See Council Directive 95/46, art. 8, 2005 O.J. (L 281) (EC).

97. Id. art. 2(a).

98. See id. art 8.
Discovery in International Civil Litigation

26

raised data protection laws as a basis for limiting discovery or other 

requests for increased access to protected documents, and some U.S. 

courts have enforced those limitations.99

Information on data protection laws in several jurisdictions can be 

found in Appendix A.

100

b. Blocking Statutes

Many foreign countries find U.S.-style discovery to be problematic because of its breadth and scope.101 A number of states have responded 

to concerns about the extraterritorial application of U.S. law, particularly pretrial discovery procedures, by enacting blocking statutes that 

restrict or prohibit the transfer of documents or information for use in 

foreign proceedings, including U.S. federal court proceedings.102

 

99. See, e.g., In re 28 U.S.C. § 1782 of Okean B.V., No. 12 Misc. 104 (PAE), 2013 

WL 4744817, at *2 (S.D.N.Y. Sept. 4, 2013) (Ukranian and Russian data protection 

laws impose limits on ability of requested party to respond to request under 28 U.S.C. 

§ 1782); Gerling Global Reinsurance Corp. of Am. v. Quackenbush, No. Civ. S-00-

0506WBSJFM, 2000 WL 777978, at *9–10 (E.D. Cal. June 9, 2000) (granting 

preliminary injunction against enforcement of state statute that could infringe 

constitutional grant of federal authority over foreign affairs by, inter alia, conflicting 

with European data protection laws); Salerno v. Lecia, Inc., No. 97-CV-973S(H), 1999 

WL 299306 (W.D.N.Y. Mar. 23, 1999) (motion to compel documents in Europe 

denied pursuant to EU Directive and German data protection law).

100. The Sedona Conference has developed a set of principles on electronic document production based on discussions among judges and practitioners from both the 

United States and the European Union. These principles are meant to serve as a 

guideline for parties and judges in addressing the unique challenges of electronic document production. In addition, the Sedona Conference has issued a set of principles 

addressing international discovery, disclosure, and data protection. For further information, see The Sedona Conference, https://thesedonaconference.org/ (last visited 

Mar. 31, 2015); The Sedona Conference International Principles on Discovery, Disclosure & Data Protection, https://thesedonaconference.org/publication/The%20Sedona

%20Conference%C2%AE%20International%20Principles%20on%20Discovery%2C%2

0Disclosure%20%2526%20Data%20Protection (last visited Mar. 31, 2015). See also

Appendix E, Sample Rule 16 Pretrial Order Addressing International Discovery Issues, 

¶ 11.

101. See generally Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. 

Iowa, 482 U.S. 522, 534–46 (1987).

102. See In re Perrier Bottled Water Litig., 138 F.R.D. 348, 352–55 (D. Conn. 

1991) (discussing view of several civil law countries regarding U.S.-style discovery 

within their borders, and ordering plaintiff to employ Hague Convention procedures 

to obtain discovery of evidence located in France in accordance with French law).
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

27

The French blocking statute is among the most frequently litigated 

of these statutes, and makes it illegal for any French national, resident, 

or agent of a judicial entity to “request, seek or disclose information, 

written, orally, or in any other form . . ., that is directed toward establishing evidence in view of legal or administrative proceedings 

abroad,” except as provided by the Hague Convention or other international treaties.103 Blocking statutes and other similar laws often contemplate sanctions for parties in violation of their provisions, including the German Federal Data Protection Act,104 Swiss bank secrecy 

act,105 French Blocking Statute,106 and Chinese state secrecy laws.107

Thus, a foreign party receiving a U.S. request for discovery may face 

the dilemma of either (a) disobeying the U.S. discovery request and 

possibly being subject to sanctions, or (b) complying with the request 

but running afoul of the laws of its own country.

Parties may object to discovery on the basis of conflicting foreign 

law, which courts generally analyze using the multifactor test described in the following section.

 

103. Loi 80-538 du 16 juillet 1980 relative à la communication de documents et 

renseignements d’ordre économique, commercial, industriel, financier ou technique à 

des personnes physiques ou morales étrangères [Law 80-538 of July 16, 1980 on the 

Disclosure of Documents and Information of an Economic, Commercial, Industrial, 

Financial or Technical Nature to Physical and Legal Entities], Journal Officiel de la 

Republique Francaise [J.O.] [Official Gazette of France], art. 1 bis (author 

translation).

104. See Pershing Pac. W., LLC v. MarineMax, Inc., No. 10-CV-1345-L DHB, 

2013 WL 941617, at *9 (S.D. Cal. Mar. 11, 2013), on reconsideration in part, No. 10-

CV-1345-L DHB, 2013 WL 1628938 (S.D. Cal. Apr. 16, 2013); see also German Federal Data Protection Act, § 43: “Anyone who, without authorization . . . stores, modifies or communicates . . . any personal data protected by this Act which are not common knowledge shall be punished by imprisonment for up to one year or by a fine.”

105. See Minpeco, S.A. v. ContiCommodity Servs., Inc., 116 F.R.D. 517, 525–26 

(S.D.N.Y. 1987).

106. See Bodner v. Banque Paribas, 202 F.R.D. 370 (E.D.N.Y. 2000), although 

note that the court held that the statute did not seem likely to be enforced. But see

Compagnie Francaise d’Assurance Pour le Commerce Exterieur v. Phillips Petroleum 

Co., 105 F.R.D. 16, 30 (S.D.N.Y. 1984) (“legislative history of the statute gives strong 

indications that it was never expected nor intended to be enforced against French 

subjects but was intended rather to provide them with tactical weapons and bargaining chips in foreign courts.”)

107. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1477 

(9th Cir. 1992).
Discovery in International Civil Litigation

28

Appendix A sets out whether certain key jurisdictions have blocking statutes.

c. Resolving Objections Based on Conflicting Foreign Law

As a rule, U.S. courts do not automatically excuse foreign parties from 

complying with discovery requests in deference to conflicting foreign 

law.108 Judges tasked with deciding an objection on this basis refer to 

the well-accepted multifactor test in the Restatement (Third) of Foreign Relations Law § 442(1)(c):

In deciding whether to issue an order directing production 

of information located abroad, and in framing such an 

order, a court or agency in the United States should take 

into account [1] the importance to the investigation or litigation of the documents or other information requested; 

[2] the degree of specificity of the request; [3] whether the 

information originated in the United States; [4] the availability of alternative means of securing the information; and 

[5] 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.109

Some courts also take into account the nature (i.e., civil or criminal)

and severity of possible sanctions,110 as well as the question whether 

 

108. See, e.g., Devon Robotics v. DeViedma, No. 09-CV-3552, 2010 WL 3985877, 

at *3–6 (E.D. Pa. Oct. 8, 2010) (granting discovery in a U.S. proceeding despite objections that it would violate Italian law); In re Air Cargo Shipping Servs. Antitrust Litig.,

No. 06-MD-1775, 2010 WL 2976220 (E.D.N.Y. July 23, 2010) (granting motion to 

compel despite a conflicting South African blocking statute, because of strong U.S. 

policy interest in enforcing its antitrust laws). But see In re Payment Card Interchange 

Fee & Merch. Disc. Antitrust Litig., No. 05-MD-1720 (JG)(JO), 2010 WL 3420517 

(E.D.N.Y. Aug. 27, 2010) (denying U.S. discovery in light of EU Data Privacy Directive and an EU amicus brief urging prevention of disclosure of protected data).

109. Restatement (Third) of Foreign Relations Law of the United States

§ 442(1)(c) (1987) (numbering added); see also Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 U.S. 522, 534–44 (1987). Courts in the Second 

Circuit also consider the additional factor of “the hardship of compliance on the party 

or witness from whom discovery is sought [and] the good faith of the party resisting 

discovery.” Minpeco S.A., 116 F.R.D. at 523.

110. Compare Societe Internationale Pour Participations Industrielles Et 

Commerciales, S.A. v. Rogers, 357 U.S 197, 211 (1958), with Pershing Pac. W., LLC v. 

MarineMax, Inc., No.10-CV-1345-L DHB, 2013 WL 941617, at *9 (S.D. Cal. Mar. 11, 
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

29

the law appears likely to actually be enforced against that party,111 and 

an analysis of the motives of the blocking statute at issue.112

When a party fails to comply with an order for production, U.S. 

courts typically consider the conflicted party’s good faith effort to 

comply with the discovery request (including requesting permission 

from local authorities to produce the evidence) when deciding 

whether to impose sanctions of contempt, dismissal, or default.113

Even when a court does not sanction a non-complying party, the court 

may nonetheless make findings of fact adverse to that party.114

 

2013), on reconsideration in part, No. 10-CV-1345-L DHB, 2013 WL 1628938 (S.D. 

Cal. Apr. 16, 2013) (considering civil penalties under German law, but recalling that 

“[b]locking statutes such as [the German Federal Data Protection Act] do not deprive 

American courts of the power to order a party to produce evidence under the Federal 

Rules, although the production of evidence may violate the statute and subject the 

defendant to penalties”); Salerno v. Lecia, Inc., No. 97-CV-973S(H), 1999 WL 299306, 

at *3 (W.D.N.Y. Mar. 23, 1999) (refusing to order discovery where “there are serious 

legal ramifications for those entities that disclose personal information in contravention of European Union and Germany data protection laws); Minpeco, S.A., 116 F.R.D. 

at 523.

111. See Bodner, 202 F.R.D. at 375 (denying motion for protective order where 

“the French Blocking Statute does not subject defendants to a realistic risk of 

prosecution”).

112. Minpeco S.A., 116 F.R.D. at 524 (distinguishing the Swiss bank secrecy laws, 

which “have the legitimate purpose of protecting commercial privacy” from French, 

Dutch, and other statutes, which do not deserve deference because they are designed 

to frustrate U.S. laws or policies); see also In re Uranium Antitrust Litig., 480 F. Supp. 

1138, 1143 (N.D. Ill. 1979) (regarding Canadian legislation). 

113. See Restatement (Third) of Foreign Relations Law of the United States

§ 442(2)(a) (1990); Linde v. Arab Bank, PLC, 269 F.R.D. 186, 197–200 (E.D.N.Y. 

2010) (ordering discovery sanctions despite threat of criminal prosecution for violation of bank secrecy laws when defendant intentionally failed to meet discovery obligations and other factors weighed in favor of sanctions); Richmark Corp. v. Timber 

Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (affirming contempt sanction when foreign corporation failed to make showing of good faith effort to comply 

with discovery order by attempting to obtain waiver of foreign state secrecy laws).

114. See Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 227 (E.D.N.Y. 2008)

(citing with approval § 442(1)(b) of the Restatement (Third) of Foreign Relations Law 

of the United States for the proposition that “[f]ailure to comply with an order to produce information may subject the person to whom the order is directed to sanctions, 

including finding of contempt, dismissal of a claim or defense, or default judgment, or 

may lead to a determination that the facts to which the order was addressed are as 

asserted by the opposing party”).
Discovery in International Civil Litigation

30

In cases in which parties are likely to face challenges during the 

discovery process on the basis of data privacy laws or blocking 

statutes, the court initially may consider issuing an order requiring the 

parties to approach the data or privacy administrator of the relevant 

foreign country to seek its cooperation and assistance. This first step 

could increase efficiency and the likelihood of success in obtaining the 

requested discovery. If these efforts are unsuccessful, the court may 

next consider issuing an order to compel.

2. Competing Sovereignty and Other National Interests 

Courts in many countries are wary of discovery requests by a party in 

a foreign proceeding that seek to obtain evidence located in the domestic jurisdiction from a domestic entity. This is especially true with 

respect to cross-border requests by parties to U.S. proceedings because 

U.S.-style discovery is viewed in many foreign jurisdictions as extraordinarily broad and open-ended.

To determine whether to enforce a discovery request that implicates competing sovereignty interests of a foreign jurisdiction, U.S. 

courts consider principles of international comity, which the Supreme 

Court has described as “the spirit of cooperation in which a domestic 

tribunal approaches the resolution of cases touching the laws and interests of other sovereign states.”115 Comity principles are not blackletter rules that courts must follow, yet they are more than “mere 

courtesy and good will.”116

Comity issues can arise in a number of contexts. During discovery, 

parties often make arguments based on comity considerations to resist 

disclosure of evidence possessed by a foreign entity in a foreign jurisdiction according to the rules of the forum court.117 The restatement 

 

115. Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522, 534–44 n.27 (1987). 

116. In re Maxwell Commc’n Corp. plc, 93 F.3d 1036, 1046 (2d Cir. 1996).

117. See, e.g., Brief of Amicus Curiae the Republic of France in Support of 

Petitioners, Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522 (1987) (No. 85-1695), 1986 WL 727501, at *7 (“Discovery requests in 

accordance with American rules by American litigants and, a fortiori, discovery orders 

by American courts directly to French nationals in France, undermine the sovereignty 

of the Republic of France by usurping the powers and duties of the French judiciary in 

the discovery process.”). 
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

31

approach discussed above is the analytical approach used by courts to 

decide such issues.118

In Wultz v. Bank of China Ltd., the U.S. District Court for the 

Southern District of New York issued a series of decisions applying the 

seven-part comity analysis to requests for discovery from a Chinese 

state-owned bank that would have violated Chinese bank secrecy laws.

The court acknowledged that the discovery requested could violate 

Chinese bank secrecy laws, but ordered the defendant bank to produce 

documents. However, the court narrowed the request to discovery 

permitted under the Federal Rules of Civil Procedure and carved out 

one exception for regulatory documents created by the Chinese government, whose production was clearly prohibited by Chinese law.

119

The court later grappled with objections to discovery on the basis that 

such discovery would violate Chinese laws governing anti-money 

laundering and other illegal transactions,120 and also considered assertions by the defendant bank that several thousand documents were 

privileged under Chinese law a year after the court’s initial October 

2012 order.

121

In the recent case Argentina v. NML Capital Ltd., the United States, 

as amicus curiae, argued that considerations of international comity 

support the interpretation of the Foreign Sovereign Immunities Act 

(FSIA) to preclude discovery of extraterritorial evidence in aid of execution of a judgment against a foreign sovereign.122 The Supreme 

Court disagreed, finding that the FSIA did not contain any provision 

“forbidding or limiting discovery in aid of execution of a foreign-

 

118. See supra section II.D.1.c. Comity considerations also may lead a U.S. court 

to dismiss an action before it in deference to parallel proceedings in a foreign jurisdiction, particularly in the cross-border insolvency context. See, e.g., Allstate Life Ins. Co. 

v. Linter Grp., 994 F.2d 996, 999 (2d Cir. 1993) (comity may dictate dismissal when 

“it is shown that the foreign court is a court of competent jurisdiction, and that the 

laws and public policy of the forum state and the rights of its residents will not be 

violated” (citation omitted)).

119. Wultz v. Bank of China Ltd., 910 F. Supp. 2d 548, 555–61 (S.D.N.Y. 2012).

120. Wultz v. Bank of China Ltd., No. 11 CIV. 1266 SAS, 2013 WL 132664 

(S.D.N.Y. Jan. 10, 2013); Wultz v. Bank of China Ltd., 942 F. Supp. 2d 452, 455 

(S.D.N.Y. 2013).

121. Wultz v. Bank of China Ltd., 979 F. Supp. 2d 479, 484 (S.D.N.Y. 2013), on 

reconsideration in part, No. 11 CIV. 1266 SAS, 2013 WL 6098484 (S.D.N.Y. Nov. 20, 

2013).

122. Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (2014).
Discovery in International Civil Litigation

32

sovereign judgment debtor’s assets,” and rejected the United States’

argument on the basis of comity.123 However, the Court noted that, 

although the discovery sought was not precluded by the FSIA, 

we have no reason to doubt that . . . “other sources of law”

ordinarily will bear on the propriety of discovery requests of 

this nature and scope, such as “settled doctrines of privilege 

and the discretionary determination by the district court 

whether the discovery is warranted, which may appropriately 

consider comity interests and the burden that the discovery 

might cause to the foreign state.”124

3. Foreign Privileges or Immunities

Another potential defense to a discovery request in an international 

dispute involves the invocation of foreign privileges and immunities.

How foreign courts consider this issue often depends on how the request for the production of evidence is made.

When discovery is sought pursuant to a Hague Convention letter 

of request,

125 the Convention provides that the witness may invoke 

privileges under the law of the requested state.126 The witness may also 

invoke privileges under the law of the requesting state, but only if the 

privilege is specifically mentioned in the letter of request or confirmed 

by the requesting authority.127

When the request for information is made outside the context of 

the Hague Convention, a party’s ability to invoke a foreign privilege or 

 

123. Id. at *8, *11.

124. Id. at *11–*12, n.6 (citations omitted; emphasis added).

125. For background on the Hague Convention, see supra section II.C.1.

126. Article 11 of the Hague Convention provides that

[i]n the execution of a letter of request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence—

a) under the law of the State of execution; or

b) under the law of the State of origin, and the privilege or duty has been specified in 

the Letter, or, at the instance of the requested authority, has been otherwise confirmed 

to that authority by the requesting authority.

A Contracting State may declare that, in addition, it will respect privileges and duties 

existing under the law of States other than the State of origin and the State of 

execution, to the extent specified in that declaration.

Hague Convention, supra note 16, art. 11.

127. Id.
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

33

immunity is less clearly defined. Courts typically begin their analysis 

with Federal Rule of Evidence 501, which provides that

[t]he common law—as interpreted by United States courts 

in the light of reason and experience—governs a claim of 

privilege unless any of the following provides otherwise: the 

United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law 

governs privilege regarding a claim or defense for which 

state law supplies the rule of decision.128

For Rule 501 purposes, the “common law” that governs a claim of 

privilege also governs the “choice of law” question whether a privilege 

arising under foreign law should apply.129

The issue arises primarily in the context of patent law, and the 

leading means of analyzing choice of law concerns in this regard involves the “touch base” analysis developed by courts within the Second Circuit.130 Under the “touch base” analysis, “any communication 

touching base with the United States will be governed by the federal 

discovery rules while any communications related to matters solely 

involving [a foreign country] will be governed by the applicable foreign statute.”131 If, in the latter case, multiple foreign jurisdictions are 

at issue, the court “defers to the law of the country that has the ‘predominant’ or ‘the most direct or compelling interest’ in whether [the 

relevant] communications should remain confidential, unless that for-

 

128. Fed. R. Evid. 501. 

129. See Kiobel v. Royal Dutch Petroleum Co., No. 02 Civ. 7618 (KMW)(HBP), 

2005 WL 1925656, at *2 (S.D.N.Y. Aug. 11, 2005); VLT Corp. v. Unitrode Corp., 194 

F.R.D. 8, 14–15 (D. Mass. 2000); Kenneth W. Graham, Jr., 23 Fed. Prac. & Proc. 

Evid. § 5435, n.33 (1st ed. 1977) (“There is no evidence that Congress ever thought 

about this choice of law problem and, therefore, no reason to assume that Rule 501 

was intended to require the application of American privilege law to transactions that 

take place in another nation.”).

130. See, e.g., Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 66 (S.D.N.Y. 2010)

(U.S. privileges applied to communications between the plaintiff, a U.S. entity, and the 

former in-house intellectual property counsel of its Italian affiliate); Astra Aktiebolag 

v. Andrax Pharm., Inc., 208 F.R.D. 92, 98–99 (S.D.N.Y. 2002) (applying, variously, 

German, Korean, and U.S. laws of privilege to different sets of documents). 

131. Astra Aktiebolag, 208 F.R.D. at 98 (quoting Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 520 (S.D.N.Y. 1992)) (internal quotation marks omitted).
Discovery in International Civil Litigation

34

eign law is contrary to public policy of [the] forum.”132 “The jurisdiction with the ‘predominant interest’ is either ‘the place where the allegedly privileged relationship was entered into’ or ‘the place in which 

that relationship was centered at the time the communication was 

sent.’”133

The Second Circuit “touch base” rubric has been considered, 

adopted, or rejected by courts in other circuits.134 One court that has 

explicitly rejected the “touch base” approach, the Northern District of 

Illinois, instead follows a comity-based approach that looks “to the 

foreign nation’s law to determine the extent to which the privilege may 

attach.”135 Other courts have followed the Restatement (Second) of 

Conflict of Laws, which states that the governing law is “that of the 

 

132. Id. at 98–99 (quoting Golden Trade, 143 F.R.D. at 522) (holding that documents “touched base” with the United States because almost all documents were 

communications with outside U.S. counsel or related to patent applications or litigation in the United States, and therefore U.S. privilege law applied).

133. Id. (quoting Golden Trade, 143 F.R.D. at 521–22) (holding that Germany, 

and not Sweden, had the most compelling interest in whether certain documents were 

protected from disclosure because documents either implicated the law of Germany, 

or were legal advice from outside German counsel, or were Swedish communications 

conveying the advice of outside German counsel). 

134. See, e.g., AstraZeneca LP v. Breath Ltd., No. CIV. 08-1512 (RMB/AM), 2011 

WL 1421800, at *5 (D.N.J. Mar. 31, 2011) (employing “touch base” analysis and 

holding that communications did not “touch base” with United States because they 

did not involve U.S. patent applications, U.S. proceedings, or communications with 

U.S. attorneys); Tulip Computers Int’l, B.V. v. Dell Computer Corp., 210 F.R.D. 100, 

104 (D. Del. 2002) (noting that court’s adoption of the “touch base” test and holding 

that communications did not “touch base” with the United States when they concerned foreign patent issues and other matters relating solely to matters outside the 

United States), aff’d and adopted sub nom. Tulip Computers Int’l B.V. v. Dell Computer 

Corp., No. CIV.A. 00-981-KAJ, 2003 WL 24046752 (D. Del. Feb. 10, 2003); VLT 

Corp. v. Unitrode Corp., 194 F.R.D. 8, 16 (D. Mass. 2000) (interpreting the “touch 

base” analysis to mean that the issue of which country’s privilege should apply to “a 

reference to a United States patent that is more than incidental should be governed by 

a traditional choice of law analysis, that is, looking to the laws of the country with the 

most direct and compelling interest in the reference”); Odone v. Croda Int’l PLC, 950 

F. Supp. 10, 13–14 (D.D.C. 1997) (following “touch base” rubric and holding that 

documents “touched base” with the United States because they dealt with whether a 

U.S. citizen was to be named in the patent as a co-inventor, and later the U.S. patent 

was affected, which became the subject of the suit).

135. Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 535, on 

reconsideration in part, 194 F.R.D. 624 (N.D. Ill. 2000).
II. Discovery in a Foreign Jurisdiction to Assist Proceedings in the United States

35

state with the most significant relationship with the [relevant] communications.”136

Although a number of U.S. courts limit themselves to this two-step 

analysis (i.e., whether the foreign country’s privilege law applies and 

whether that law would prevent disclosure), some courts have adopted 

a third element and have refused to compel disclosure when the documents sought would not have been subject to discovery in the foreign 

country and would be privileged in the forum court.137 Those courts 

reason that compelling production under such circumstances would 

run counter to considerations of international comity and would offend the public policy of U.S. courts in preventing disclosure of materials considered privileged here.138

 

136. Renfield Corp. v. E. Remy Martin & Co., 98 F.R.D. 442, 444–45 (D. Del. 

1982); Restatement (Second) of Conflict of Laws § 139(1) (1969).

137. See, e.g., Astra Aktiebolag v. Andrax Pharm., Inc., 208 F.R.D. 92, 102 

(S.D.N.Y. 2002) (refusing to compel production of Korean documents that are not 

protected by any Korean privilege but (a) would have been covered by U.S. attorney–

client and work product protections, and (b) would not have been discoverable in a 

Korean proceeding because of the limited disclosure regime in that country). 

138. See id.; Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 69–70 (S.D.N.Y. 

2010) (applying U.S. privilege law because application of Italian law would violate 

public policy of the court).

37

III. Discovery in the United States to Assist

Proceedings in a Foreign Jurisdiction

Although U.S. district courts will commonly grapple with international discovery issues in the context of a party seeking material located abroad for use in a U.S. proceeding, they may also face incoming 

requests seeking discovery in the United States from parties involved 

in litigation proceedings abroad. These requests can be separated into 

two groups: those that are made under the Hague Convention and 

those that are made under 28 U.S.C. § 1782.139 The Hague Convention 

is reproduced in Appendix B, and 28 U.S.C. § 1782 is reproduced in 

Appendix D.

A. Requests Made Under the Hague Convention

As discussed earlier, letters of request under the Hague Convention 

must follow a very specific procedure.140 The request must be sent 

from a contracting state of the Hague Convention to the U.S. central 

authority. The designated central authority in the United States is the 

Office of International Judicial Assistance at the Department of 

Justice.141

The Office of International Judicial Assistance will submit the letter of request to the U.S. Attorney’s Office, which is responsible for 

making an application to the appropriate federal district court.142 The 

 

139. Note that letters rogatory are generally received within the framework of 

§ 1782. Section 1782(a) specifically states that orders may be granted “pursuant to a 

letter rogatory issued . . . by a foreign or international tribunal.” Historically, requests 

were made through letters rogatory pursuant to 28 U.S.C. § 701 (since repealed). See, 

e.g., In re Letters Rogatory from Examining Magistrate, 26 F. Supp. 852 (D. Md. 

1933). Now, courts follow the procedures set out in § 1782 when executing these 

letters. See In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216 (9th Cir. 1976); In 

re Letter Rogatory from Justice Court, Dist. of Montreal, 523 F.2d 562 (6th Cir. 1975); 

In re Letters Rogatory, etc., 385 F.2d 1017 (2d Cir. 1967).

140. See supra text accompanying note 42.

141. See United States—Central Authority (Art. 2) and Practical Information: 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial 

Matters, Hague Conference on Private International Law, http://www.hcch.net/

index_en.php?act=authorities.details&aid=528 (last visited Mar. 5, 2015).

142. See supra section II.C.1 for a discussion of relevant considerations regarding 

a request made under the Hague Convention.
Discovery in International Civil Litigation

38

procedures set out in the Hague Convention are binding for all contracting states. As described above in section II.C.1.c, letters of request 

may only be rejected on very limited enumerated grounds.

Although the Hague Convention procedure is mandatory, some 

courts apply the criteria outlined under 28 U.S.C. § 1782 when assessing whether discovery ought to be granted.143 As discussed further 

in the following section, 28 U.S.C. § 1782 is a discretionary device that 

is unrelated to the Hague Convention. 

B. Requests, Including Letters Rogatory, Made by an Interested 

Person or a Foreign or International Tribunal Under 28 U.S.C. 

§ 1782

The purpose of 28 U.S.C. § 1782 is to allow U.S. district courts to order discovery in the United States “for use in a proceeding in a foreign 

or international tribunal.”144 Given the breadth of the language, most 

 

143. See In re Request for Judicial Assistance from the Dist. Court in Svitavy, 748 

F. Supp. 2d 522, 524 (E.D. Va. 2010); In re Letters Rogatory from the Local Court, 29 

F. Supp. 2d 776, 779 (E.D. Mich. 1998) (“Provisions governing the taking of evidence 

in accordance with § 1782 are set forth in . . . the Hague Convention”); In re Letter of 

Request from the Boras Dist. Ct., 153 F.R.D. 31 (E.D.N.Y. 1994) (“The Hague Convention, which governs letters rogatory, essentially imposes the same conditions as 

those in section 1782”); In re Request for Judicial Assistance from the City Court of 

Jonkoping, Sweden, No. 3:96 MC 419 EBB, 1997 WL 1052017 (D. Conn. Oct. 10, 

1997) (applying § 1782 to a discovery request made pursuant to “a letter rogatory 

issued . . . in accordance with the Convention on Taking Evidence Abroad.”). 

144. The full text of the statute reads as follows:

(a) The district court of the district in which a person resides or is found may 

order him to give his testimony or statement or to produce a document or other thing 

for use in a proceeding in a foreign or international tribunal, including criminal 

investigations conducted before formal accusation. The order may be made pursuant 

to a letter rogatory issued, or request made, by a foreign or international tribunal or 

upon the application of any interested person and may direct that the testimony or 

statement be given, or the document or other thing be produced, before a person 

appointed by the court. By virtue of his appointment, the person appointed has power 

to administer any necessary oath and take the testimony or statement. The order may 

prescribe the practice and procedure, which may be in whole or part the practice and 

procedure of the foreign country or the international tribunal, for taking the testimony 

or statement or producing the document or other thing. To the extent that the order 

does not prescribe otherwise, the testimony or statement shall be taken, and the 

document or other thing produced, in accordance with the Federal Rules of Civil 

Procedure. 

A person may not be compelled to give his testimony or statement or to produce 

a document or other thing in violation of any legally applicable privilege. 
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

39

requests for discovery to assist with a foreign proceeding, including 

letters rogatory, will generally come within the scope of the statute.

For a court to grant a request under § 1782, the request must meet 

certain statutory requirements (see infra section III.B.1). Meeting the 

statutory requirements does not require a federal district court to grant 

a § 1782 application, but merely gives it the authority to do so.145 The 

court will usually consider several discretionary factors in deciding 

whether to grant the request in whole or in part (see infra section 

III.B.2). Once the court decides to exercise its discretion to order discovery, the order may adopt the practice and procedure of the foreign 

or international tribunal for the taking of evidence146 or it may follow 

the procedures contained in the Federal Rules of Civil Procedure.

147

1. Statutory Requirements Under § 1782

A federal district court may order discovery of evidence under § 1782 

when the following requirements are met:

• the person from whom discovery is sought resides or is found 

in the district;

• the discovery is for use in a proceeding in a foreign or international tribunal;

• the application is made by a foreign or international tribunal 

or any “interested person”; and 

• the request seeks evidence, whether it be the “testimony or 

statement” of a person, or the production of “a document or 

thing.”148

 (b) This chapter does not preclude a person within the United States from 

voluntarily giving his testimony or statement, or producing a document or other 

thing, for use in a proceeding in a foreign or international tribunal before any person 

and in any manner acceptable to him.

28 U.S.C. § 1782.

145. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004).

146. See 28 U.S.C. § 1782(a).

147. See id.; Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1272 (11th Cir. 2014) (“[O]nce the section 1782 factors are met and the district court is therefore authorized to grant the application, the 

federal discovery rules, Fed. R. Civ. P. 26–36, contain the relevant practices and procedures for the taking of testimony and the production of documents.” (citation 

omitted)).

148. 28 U.S.C. § 1782. In many cases (especially in the Second Circuit) courts 

have taken the fourth criterion for granted. See, e.g., Schmitz v. Bernstein, Liebhard & 
Discovery in International Civil Litigation

40

The procedural elements under § 1782 are relatively straightforward.149 Applications may be made on an ex parte basis, although 

any application granted on an ex parte basis may be challenged by a 

party by raising objections and filing a motion to quash or vacate the 

order within thirty days of the date of its entry.

There is some dispute as to whether and how magistrate judges 

may grant orders under § 1782 pursuant to 28 U.S.C. § 636.

150 On the 

one hand, some courts have held that consideration of a request under 

§ 1782 is analogous to a standard discovery request and may therefore 

be referred to a magistrate judge as a “non-dispositive” question under 

§ 636(b)(1)(A).151 Under this standard, the decision of the magistrate 

judge may only be reviewed when it is “clearly erroneous or contrary 

to law.”152 On the other hand, some courts have held that decisions on 

§ 1782 requests are “dispositive” because they constitute the totality of 

the action in U.S. courts.153 Under this standard, magistrate judges 

may only enter recommendations for disposition, which are reviewed 

de novo on the request of either party.154

 

Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004); In re Microsoft Corp., 428 F. Supp. 2d 

188, 192 (S.D.N.Y. 2006). Other circuits have considered all four criteria. See, e.g., In 

re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007); In re IPC Do Nordeste, LTDA,

No. 12-50624, 2012 WL 4448886 (E.D. Mich. Sept. 25, 2012).

149. See Gushlak v. Gushlak, 486 F. App’x 215, 217 (2d Cir. 2012); In re Mesa 

Power Grp., LLC, No. 2:11-mc-280-ES, 2012 WL 6060941, at *2 (D.N.J. Nov. 20, 

2012).

150. See generally S.I. Strong, Discovery Under 28 U.S.C. § 1782: Distinguishing 

International Commercial Arbitration and International Investment Arbitration, 1 Stan. J. 

Complex Litig. 295 (2013).

151. See Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th 

Cir. 2002); United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir. 2001)

(standard under § 1782 is “identical to that used in reviewing the district court’s 

ordinary discovery rulings”); Chevron Corp. v. E-Tech Int’l, No. 10cv1146-

IEG(Wmc), 2010 WL 3584520 (S.D. Cal. Sept. 10, 2010) (collecting and discussing 

previous decisions on the subject).

152. 28 U.S.C. § 636(b)(1)(A).

153. See Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006); 12 Charles 

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3068.3 (2d ed. 

1982) (noting that although discovery disputes generally are viewed as non-dispositive, motions under § 1782 are dispositive matters).

154. 28 U.S.C. § 636(b)(1)(B).
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

41

On appeal, the statutory requirements will be reviewed de novo.

155

Each of these statutory requirements is discussed in further detail 

below.

a. Person Must Reside or Be Found in the District

For the purpose of this statute, the location of an individual is based 

on his or her physical presence, even if temporary.156 A defendant corporation typically resides at its place of incorporation or headquarters, 

or where it undertakes “systemic and continuous local activities.”157

However, requests under § 1782 generally remain subject to subpoena 

restrictions, including restrictions against imposing undue hardship.158

Also, a person may only be subpoenaed for documents in his or her 

possession, custody, or control, a test that may not necessarily be met 

when the evidence is in the possession, custody, or control of a foreign 

affiliate of the U.S. entity.159

b. For Use in a Proceeding in a Foreign or International Tribunal

Applications under § 1782 are only permitted when they seek to assist 

a “proceeding in a foreign or international tribunal.”160 In Intel Corp. v. 

Advanced Micro Devices Inc., the Supreme Court interpreted this requirement liberally, allowing requests for discovery to assist administrative and quasi-judicial proceedings abroad when the tribunal in 

 

155. Ecuadorian Plaintiffs v. Chevron Co., 619 F.3d 373, 375 (5th Cir. 2010).

156. See 28 U.S.C. § 1391(c)–(d).

157. In re Inversiones y Gasolinera Petroleos Valenzuela, No. 08-20378-MC, 2011 

WL 181311, at *7 (S.D. Fla. Jan. 19, 2011); see also Caremark Therapeutic Servs. v. 

Leavitt, 405 F. Supp. 2d 454, 459 (S.D.N.Y. 2005); In re Thai-Lao Lignite (Thail.) Co.,

821 F. Supp. 2d 289, 293–94 (D.D.C. 2011) (finding that the corporation from which 

discovery was being sought did not reside or was not found in the district because its 

place of registration and headquarters were not in the district; likewise finding that 

another corporation from which discovery was being sought did not reside or was not 

found in the district because it did not have an office or any other systematic and continuous contacts with the district).

158. In re Gushlak, No. 11-MC-218 (NGG), 2011 WL 3651268, at *4 (E.D.N.Y. 

Aug. 17, 2011).

159. See In re Godfrey, 526 F. Supp. 2d 417, 424 (S.D.N.Y. 2007); Doe Run Peru 

S.R.L. v. Trafigura AG, 2011 U.S. Dist. LEXIS 154559, at *3 (D. Conn. Aug. 23, 2011).

160. 28 U.S.C. § 1782(a).
Discovery in International Civil Litigation

42

question “acts as a first-instance decisionmaker.”161 The Supreme 

Court also found that the proceedings need not be “pending” or “imminent,” although a “dispositive ruling” should “be within reasonable 

contemplation” at the time the application is made.162 This definition, 

although broad, does not extend to cover officials who are agents of 

governmental policy, rather than those with an essentially impartial, 

adjudicatory function.163

There is, however, some uncertainty as to the scope of the definition of “foreign or international tribunal.” For instance, it is not yet 

clear whether international arbitral tribunals constitute foreign or international tribunals for the purposes of § 1782.

164

U.S. district courts have been fairly consistent in their approach to 

international arbitral tribunals established pursuant to investment 

treaties between two states, finding that such tribunals come within 

 

161. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004) (finding that an antitrust investigation by the Directorate-General for Competition of the 

EU Commission (DG Competition) constituted a proceeding in a foreign tribunal 

given that such DG Competition acted as a first-instance decision maker on antitrust 

matters); see also In re Clerici, 481 F.3d 1324, 1333 (11th Cir. 2007) (finding that the 

proceeding need not be adjudicative in nature). But see Euromepa, S.A. v. R. Esmerian, 

Inc., 154 F.3d 24, 27 (2d Cir. 1998) (holding that the proceeding must be adjudicative 

in nature).

162. Intel, 542 U.S. at 258–59.

163. See, e.g., Okubo v. Reynolds (In re Letters Rogatory from the Tokyo Dist. 

Prosecutor’s Office), 16 F.3d 1016, 1019 (9th Cir. 1994) (holding that a foreign prosecutor was not a “tribunal” within the meaning of the law, although it could still be an 

“interested person”), Fonseca v. Blumenthal, 620 F.2d 322, 324 (2d Cir. 1980).

164. GEA Group AG v. Flex-N-Gate Corp. and Shahid Khan, 740 F.3d 411, 419 

(7th Cir. 2014) (“[T]he applicability of section 1782 to evidence sought for use in a 

foreign arbitration proceeding is uncertain.”); Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014) (vacating 

its prior decision in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012), in which it held that a private 

commercial arbitration proceeding qualified as a “proceeding before a foreign or international tribunal” under § 1782, “leav[ing] the resolution of the matter for another 

day.”); NBC v. Bear Stearns & Co., 165 F.3d 184, 191 (2d Cir. 1999) (holding that 

Congress “did not intend for [§ 1782] to apply to an arbitral body established by private parties”); see generally Kenneth Beale et al., Solving the § 1782 Puzzle: Bringing 

Certainty to the Debate Over 28 U.S.C. § 1782’s Application to International Arbitration, 

47 Stan. J. Int’l L. 51 (2011); Strong, supra note 150.
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

43

the scope of § 1782.165 U.S. courts are less consistent in their treatment 

of private international arbitral tribunals.166 Since Intel, some courts 

have decided that private international tribunals should come within 

the scope of § 1782, noting that Congress did not limit the application 

of the statute to government-sponsored tribunals.167 Other courts have 

not generally extended § 1782 to apply to private international arbitrations, finding that the Intel case did not reach this issue and that it 

remains an open question.168

 

165. See, e.g., In re Oxus Gold, No. 06-82-GEB, 2007 WL 1037387, at *5 (D.N.J. 

Apr. 2, 2007) (finding that an arbitral tribunal is a foreign tribunal when the arbitration was “being conducted within a framework defined by two nations” pursuant to a 

bilateral investment treaty, and governed by the UNCITRAL Arbitration Rules); In re 

Winning (HK) Shipping Co., No. 09-22659-MC, 2010 WL 1796579 (S.D. Fla. Apr. 30, 

2010); In re Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010).

166. Some courts explicitly differentiate between these two types of arbitral proceedings on the grounds that investment arbitrations are sponsored by states and 

commercial arbitrations are purely private and therefore outside the scope of § 1782. 

See In re Norfolk Southern Corp., 626 F. Supp. 2d 882, 885 (N.D. Ill. 2009) (holding 

that “a reasoned distinction can be made between arbitrations such as those conducted by UNCITRAL, ‘a body operating under the United Nations and established by 

its member states,’ and purely private arbitrations established by private contract”) 

(citing In re Oxus Gold, 2007 WL 1037387, at *6); see also In re Winning, 2010 WL 

1796579; OJSC Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265 (JBA), 2009 

WL 2877156, at *4 (D. Conn. Aug. 27, 2009); but see Hans Smit, International Litigation Under the U.S. Code, 65 Colum L. Rev. 1015, 1021 (1965) (“the term ‘tribunal’ 

embraces all bodies exercising adjudicatory power, and includes . . . arbitral tribunals”) (quoted in Intel, 542 U.S. at 258).

167. See In re Roz Trading Ltd., 469 F. Supp. 2d 1221, 1226 (N.D. Ga. 2006); In 

re Hallmark Corp., 534 F. Supp. 2d 951, 954–55 (D. Minn. 2007); In re Babcock Borsig AG, 583 F. Supp. 2d 233, 241 (D. Mass. 2008) (finding that assistance would only 

be appropriate if the foreign arbitral tribunal first approves the assistance); Comision 

Ejecutiva v. Nejapa Power Co., LLC, No. 08-135-GMS, 2008 WL 4809035, at *1 (D. 

Del. Oct. 14, 2008) (noting “the Supreme Court’s decision in Intel and post-Intel decisions from other district courts indicate that section 1782 does indeed apply to private 

foreign arbitrations”).

168. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 

F. App’x 31, 34 (5th Cir. 2009); In re Operadora DB Mex., S.A., No. 6:09-vc-383-Orl22GJK, 2009 WL 2423138, at *9 (M.D. Fla. Aug. 4, 2009); In re Dubey, 949 F. Supp. 

2d 990, 994–95 (C.D. Cal. 2013); In re Norfolk Southern, 626 F. Supp. 2d at 885

(mistakenly distinguishing between UNCITRAL tribunals as “state-sponsored” arbitral 

bodies and “purely private arbitrations”). Another open question is whether U.S.-sited 

international arbitrations may count as “foreign or international tribunals” for the 

purposes of § 1782. Such proceedings are deemed to be international for the purposes 
Discovery in International Civil Litigation

44

Although there is not a great deal of case law on the subject, it appears that the “international tribunal” language of § 1782 is designed 

to include a broad range of courts that operate on an international or 

supranational level. For example, the Supreme Court has held that it is 

“[b]eyond question” that the European Court of Justice qualified as a 

tribunal under § 1782.

169 Similarly, one of the key drafters of the statute later wrote that “Section 1782 ensures that an important international court . . . and litigants before such a court can be given any reasonable assistance they may require.”170 It is to be expected that this 

provision would cover courts such as the International Court of Justice, European Court of Human Rights, and International Criminal 

Court.171

c. Application Made by a Foreign or International Tribunal or an Interested Person

Two types of applicants may seek discovery under 28 U.S.C. § 1782: a 

foreign or international tribunal, on the one hand, and an interested 

person, on the other.172 A request from a foreign or international tribunal will most likely take the form of a letter rogatory.173 Appendix C is 

a sample letter rogatory.

 

of the Federal Arbitration Act, 9 U.S.C. §§ 1–16, and the Convention on the 

Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 

2517. See Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15 

(2d Cir. 1997). However, there is no case law on the subject in the context of § 1782. 

In re Dubey, 949 F. Supp. 2d 990, 995–96 (C.D. Cal. 2013) (noting that all previous 

decisions have dealt with arbitral proceedings sited outside the United States).

169. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 257 (2004).

170. Smit, supra note 166, at 1027 n.73 (1965).

171. See generally Strong, supra note 150.

172. See 28 U.S.C. § 1782(a) (“[t]he order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person”).

173. See 28 U.S.C. § 1782(a) (providing that an order made under § 1782(a) 

“may be made pursuant to a letter rogatory issued”); see also In re Letters Rogatory 

from Tokyo Dist., 539 F.2d 1216 (9th Cir. 1976); United Kingdom v. United States,

238 F.3d 1312 (11th Cir. 2001).
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

45

Letters rogatory or requests from foreign or international tribunals 

will often come through the U.S. State Department.174 Title 28 U.S.C. 

§ 1781(a)(1) authorizes the U.S. State Department to accept a letter 

rogatory from a foreign tribunal and then direct the letter to the U.S. 

government agency to which it is addressed.175 That agency then forwards the letter to whichever U.S. district court may exercise jurisdiction over the party or witness and make the appropriate discovery order. A letter rogatory or request may also be made directly from the 

foreign or international tribunal to a federal district court (or other 

tribunal, officer, or agency, as applicable).176 Requesting discovery directly from a U.S. district court under § 1782 is faster than submitting 

a letter rogatory to the State Department. However, some foreign jurisdictions only admit evidence obtained pursuant to the latter 

approach.

The statute also allows an “interested person” to seek judicial assistance to obtain evidence in the possession of a person in the United 

States An interested person need not be a party in the foreign proceeding. Rather, an interested person is anyone who “possess[es] a 

reasonable interest in obtaining [judicial] assistance.”177 In the Intel 

case, the U.S. Supreme Court found that a complainant who triggered 

an antitrust investigation by the European Commission was considered to be an “interested person.”178 The Supreme Court came to this 

conclusion given that the complainant played a “significant role in the 

process,” including having submitted information for the commission’s consideration.179

 

174. Note that letters of request coming in under the Hague Convention ought to 

be considered separately under the Hague Convention criteria discussed in section 

II.C.1.

175. With regard to criminal matters, the United States has entered into a number 

of Mutual Legal Assistance Treaties (MLATs). See U.S. Dep’t of State, Treaties In Force, 

http://www.state.gov/s/l/treaty/tif/index.htm (last visited Mar. 5, 2015). More information on MLATs is available in Funk, supra note 5.

176. See, e.g., In re Clerici, 481 F.3d 1324 (11th Cir. 2007).

177. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004); see 

also In re Letter of Request from Crown Prosecution Serv., 870 F.2d 686, 689–90 

(D.C. Cir. 1989).

178. See Intel, 542 U.S. at 256.

179. See id.
Discovery in International Civil Litigation

46

d. Seeking Evidence

Requests made under § 1782 must seek evidence located in the United 

States.180 In this regard, § 1782 may not be used for other purposes, for 

instance as a tool to enforce foreign judgments.181 “Evidence” includes 

documents and depositions.182 Requests for evidence need not be limited to materials that would otherwise be discovered in the foreign jurisdiction if the materials were located there.

183 Similarly, it is not necessary for an applicant to show that U.S. law would have allowed the 

discovery if the litigation had been properly venued here184 or that the 

foreign or international tribunal will admit the evidence into the foreign proceeding.185

2. Discretionary Factors in Granting an Application Under § 1782

Once the statutory requirements have been met, the U.S. district court 

has broad discretion to grant a § 1782 discovery application. The U.S. 

Supreme Court has identified four factors that should be considered in 

this regard:

1. whether the documents or testimony is within the foreign tribunal’s jurisdictional reach;

2. the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to assistance from a 

U.S. court;

3. whether the request conceals an attempt to circumvent foreign 

proof-gathering restrictions or other policies of a foreign country or the United States; and

 

180. In re Application of Ecuador, No. C-10-80225 MISC CRB (EMC), 2011 WL 

736868, at *10 (N.D. Cal. Feb. 22, 2011) (questioning whether information was located within the district); Tyler B. Robinson, The Extraterritorial Reach of 28 U.S.C. 

§ 1782 in Aid of Foreign and International Litigation and Arbitration, 22 Am. Rev. Int’l 

Arb. 135, 143–62 (2011). 

181. See In re Clerici, 481 F.3d at 1332.

182. See Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding 

(USA), Inc., 747 F.3d 1262 (11th Cir. 2014).

183. See Intel, 542 U.S. at 260–61; Marubeni Am. Corp. v. LBA Y.K., 335 F. App’x 

95, 98 (2d Cir. 2009); In re Chevron Corp., 633 F.3d 153, 163 (3d Cir. 2011).

184. See Intel, 542 U.S. at 263.

185. See Anselm Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 

82 (2d Cir. 2012).
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

47

4. whether the request is unduly intrusive or burdensome.186

These discretionary factors are generally applied “in light of the twin 

aims of the statute: providing efficient means of assistance to participants in international litigation in our federal courts and encouraging 

foreign countries by example to provide similar means of assistance in 

[U.S.] courts.”187

The application of the discretionary factors listed above is reviewed by appellate courts for abuse of discretion.188

a. Documents within Foreign Tribunal’s Reach

The U.S. Supreme Court suggested in Intel that courts ought to consider whether the foreign tribunal has the requested evidence within 

its reach, stating:

when the person from whom discovery is sought is a participant in the foreign proceeding . . . the need for § 1782(a) 

aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising 

abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence. . . . In contrast, nonparticipants in the foreign proceeding may be outside the foreign tribunal’s reach; hence, 

their evidence, available in the United States, may be unobtainable absent § 1782(a) aid.189

Framed in slightly broader terms, the relevant inquiry has been articulated as “whether the evidence is available to the foreign tribunal.”190

 

186. See Intel, 542 U.S. at 264.

187. Id. at 252 (citation and quotation marks omitted); see also Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004); In re Microsoft Corp., 

428 F. Supp. 2d 188, 193 (S.D.N.Y. 2006).

188. See Intel, 542 U.S. at 255; In re Clerici, 481 F.3d 1324 (11th Cir. 2007);

Marubeni, 335 F. App’x at 98; Ecuadorian Plaintiffs v. Chevron Co., 619 F.3d 373, 375 

(5th Cir. 2010).

189. Intel, 542 U.S. at 264. 

190. In re Microsoft, 428 F. Supp. 2d at 194.
Discovery in International Civil Litigation

48

b. Nature of the Foreign Proceedings and the Foreign Tribunal’s Receptivity to Assistance

Applications made by foreign or international tribunals tend not to 

give rise to concerns about whether the foreign forum is receptive to 

judicial assistance.191 Rather, this discretionary factor primarily concerns applications made by interested persons.

A party opposing an application under § 1782 generally bears the 

“burden of demonstrating offense to the foreign jurisdiction, or any 

other facts warranting the denial of a particular application.”192 The 

foreign tribunal’s disallowance of pretrial document discovery is not 

sufficient evidence to suggest that the foreign tribunal would not be 

receptive to a U.S. court’s allowing discovery of the same documents.193 A number of U.S. courts have denied a request for discovery 

under § 1782 when the foreign tribunal in question explicitly opposed

the discovery sought through a submission to the court,194 although 

other U.S. courts have held that the opposition of the foreign court to 

evidence produced through a § 1782 request is not necessarily 

dispositive.195

 

191. See, e.g., In re Clerici, 481 F.3d at 1335.

192. See In re Chevron, 633 F.3d at 162 (quoting Bayer AG v. Betachem Inc., 173 

F.3d 188, 190 (3d Cir. 1999)).

193. Id. at 163 (cautioning against “conflat[ing] the question of whether a foreign 

court would allow analogous discovery leading to the production of documents with 

the question of whether that court would consider evidence revealed in a section 1782 

proceeding.”).

194. See In re Microsoft, 428 F. Supp. 2d at 194 (rejecting a request for discovery 

under § 1782 on the grounds, in part, that the European Commission, the commission 

hearing the ongoing antitrust proceeding for which Microsoft sought discovery, wrote 

a letter explicitly opposing U.S. judicial assistance and the discovery sought by Microsoft); Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 84–85 (2d Cir. 

2004). This should be distinguished from circumstances in which a foreign tribunal 

opposes the U.S. court’s assistance in gathering evidence for the purposes of assisting a 

separate foreign proceeding. See, e.g., In re Chevron, 749 F. Supp. 2d 141, 161 (2010).

195. See In re Republic of Ecuador, No. C-10-80225 MISC CRB, 2011 WL 

736868, at *7 (N.D. Cal. Feb. 22, 2011) (stating that “[a]bsent evidence that the foreign tribunal will reject the evidence sought, the Court is not inclined to consider 

whether the foreign tribunal is likely to accept it,” and recalling a prior order that 

provided that “even opposition by the foreign court ‘would not necessarily carry the 

day.’”).
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

49

c. Attempts to Circumvent Foreign Proof-Gathering Restrictions

Applications made by foreign or international tribunals are unlikely to 

raise concerns that they seek to circumvent foreign proof-gathering 

restrictions, since a foreign tribunal would not be inclined to circumvent its own restrictions.196 However, an application made by an interested person, especially to discover evidence in the possession of a 

party that is also subject to the jurisdiction of the foreign tribunal, may 

raise suspicions that it seeks to avoid restrictions that might otherwise 

apply in the foreign forum. Federal courts have been careful not to 

usurp the ability of a foreign tribunal to proscribe or circumscribe the 

proof-gathering process on grounds such as confidentiality. An application seeking evidence that attempts to circumvent such requirements will be less likely to be granted by the U.S. court, since to do so 

“would contravene the purpose of § 1782 by pitting this Court against 

the [foreign tribunal], rather than fostering cooperation between 

them.”197

d. Unduly Intrusive or Burdensome Requests

When an application under § 1782 is found to be unduly intrusive or 

burdensome, courts may grant the request in part or tailor the discovery order, as opposed to rejecting it altogether.198 Discovery orders under § 1782 are governed by the Federal Rules of Civil Procedure, 

which describe what constitutes an unduly burdensome request.199

 

196. See, e.g., In re Clerici, 481 F.3d at 1332, 1335.

197. In re Microsoft, 428 F. Supp. 2d at 194–95.

198. In re Mesa Power Group, LLC, No. 2:11-mc-280-ES, 2012 WL 6060941, at 

*12–13 (D.N.J. Nov. 20, 2012) (granting certain discovery requests considered “narrowly tailored to the subject matter” and denying other requests as “overbroad and 

unduly intrusive or burdensome,” including a request for all correspondence between 

Samsung and Canadian officials, as these documents would not provide information 

or insight into the primary issue in the international arbitration); see also id. at 14 

(“[W]hen dealing with foreign parties, American courts must exercise special vigilance to protect foreign parties from unduly burdensome discovery requests, which 

may disadvantage them in the proceeding. Whenever possible, the Court must attempt 

to minimize the discovery requests’ costs and inconveniences.”).

199. See 28 U.S.C. § 1782(a) (“[t]o the extent that the order does not prescribe 

otherwise, the testimony or statement shall be taken, and the document or other thing 

produced, in accordance with the Federal Rules of Civil Procedure”); see also In re 

Gushlak, No. 11-MC-218 (NGG), 2011 WL 3651268, at *6 (E.D.N.Y. Aug. 17, 2011); 

Fed. R. Civ. P. 26(g)(1)(B)(iii).
Discovery in International Civil Litigation

50

Specifically, Federal Rule of Civil Procedure 45 sets out standards for 

protecting responding parties from unduly burdensome subpoenas.200

Factors that may help to determine whether a request is overly burdensome include “relevance, the need of the party for the documents, 

the breadth of the document request, the time period covered by it, 

the particularity with which the documents are described and the burden imposed.”201 In particular, a request may be found to be unduly 

intrusive or burdensome when it seeks confidential or privileged documents.202 A discovery request may also be deemed overly burdensome when discovery was equally available in both the foreign and 

domestic jurisdictions.203 The party opposing the discovery request 

must show, with specificity, how the request is unduly intrusive or 

burdensome.204

C. Voluntary Cooperation 

Unlike the law in many foreign jurisdictions, U.S. law does not impose 

any restrictions or requirements on U.S. persons who voluntarily 

comply with foreign requests for documentary evidence or oral testimony.205 Thus, foreign litigants may depose or seek other discovery 

from compliant U.S. persons without any involvement of U.S. courts 

 

200. See Fed. R. Civ. P. 45(c)(3)(A)(iv).

201. In re Gushlak, 2011 WL 3651268, at *6 (citing Nova Biomedical Corp. v. iSTAT Corp., 182 F.R.D. 419, 422–23 (S.D.N.Y. 1998)).

202. See 28 U.S.C. § 1782(a) (providing that “[a] person may not be compelled to 

give his testimony or statement or to produce a document or other thing in violation 

of any legally applicable privilege”); In re Microsoft, 428 F. Supp. 2d at 196.

203. See In re IPC Do Nordeste, LTDA, No. 12-50624, 2012 WL 4448886, at *8 

(E.D. Mich. Sept. 25, 2012) (citing Heraeus Kuzler, GmbH v. Biomet, Inc., 633 F.3d 

591, 594 (7th Cir. 2011)) (“One abuse would be for a party to seek discovery in a 

federal district court that it could obtain in the foreign jurisdiction, thus gratuitously 

forcing his opponent to proceed in two separate court systems.”).

204. See Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding 

(USA), Inc., 747 F.3d 1262 (11th Cir. 2014).

205. See Synopsis of Responses to the Questionnaire of May 2008 Relating to the 

Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters (Evidence Convention), Hague Conference on Private International 

Law, http://www.hcch.net/upload/wop/2008synopsis20.pdf (last visited Mar. 5. 2015)

(noting ten states that are parties to the Hague Convention and that have domestic 

laws barring the disclosure of evidence in certain circumstances). For the United 

States, see 28 U.S.C. § 1782(b).
III. Discovery in the United States to Assist Proceedings in a Foreign Jurisdiction

51

or other organs of government. To ensure that discovered material is 

admissible in the foreign proceeding, the requesting party should comply with the rules and form requirements of the foreign jurisdiction. 

53

IV. Conclusion

This guide provides an introductory overview of the complex international discovery issues a federal court judge may face in a civil proceeding. It highlights key issues and summarizes common international discovery practices to assist U.S. courts in proactively identifying and managing these procedures and potential issues. As this guide 

seeks to make clear, to ensure the efficient management of the international discovery process, parties and courts alike are best served by 

careful planning early in the case.

55

Recommended Reading

Graig J. Alvarez, Conducting Discovery in Foreign Countries, in International Litigation—Defending and Suing Foreign Parties in U.S. 

Federal Courts (David J. Levy ed., ABA 2003).

Gary Born & Peter Rutledge, International Civil Litigation in United 

States Courts (5th ed. 2011).

The Hague Conference on Private International Law on the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil 

or Commercial Matters, http://www.hcch.net/index_en.php?act=

conventions.text&cid=82.

Transnational Litigation: A Practitioner’s Guide (John Fellas ed.,

Thompson Reuters 2013).

U.S. Department of State, International Judicial Assistance, 

http://travel.state.gov/content/travel/english/legal-considerations/

judicial.html.

U.S. Department of State, International Judicial Assistance, Country 

Information, http://travel.state.gov/content/travel/english/legalconsiderations/judicial/country.html.

57

Appendices

Appendix A: Discovery Practices in Selected Jurisdictions, 59

Appendix B: The Hague Convention on the Taking of Evidence 

Abroad in Civil or Commercial Matters, 83

Appendix C: Sample Letter Rogatory, 99

Appendix D: 28 U.S.C. §§ 1781–1783, 101

Appendix E: Sample Rule 16 Pretrial Order Addressing International 

Discovery Issues, 105

59

Appendix A: Discovery Practices in 

Selected Jurisdictions

While it is the responsibility of counsel to provide the court with relevant foreign law and procedure, it may be helpful for judges to have a 

basic understanding of issues that arise when parties to a U.S. proceeding seek transnational discovery. This appendix is intended to assist judges by providing a starting point if a party to a dispute seeks 

discovery in one of the jurisdictions addressed in this appendix.

Argentina

Overview

In Argentina, at the federal level, evidentiary issues are governed by 

the Federal Civil and Commercial Procedural Code (Código Procesal 

Civil y Comercial de la Nación) (CPC). Each of the twenty-three provinces has enacted its own Civil and Commercial Procedural Code.

Likewise, the City of Buenos Aires has a procedural code that governs 

matters in which the city government is a party. The most populated

and economically relevant subnational jurisdiction is the Province of 

Buenos Aires. The Civil and Commercial Procedural Code of Buenos 

Aires (Código Procesal Civil y Comercial de la Provincia de Buenos 

Aires) (CPBA) has discovery rules that are similar to the federal rules 

in the CPC (Chapter V, Sects. 358–478).

Pretrial discovery of documents as understood in common law 

countries is not generally available in Argentina (Law 23,480, Sect. 2).

Under limited circumstances, however, there are certain types of evidence that a potential plaintiff may ask a court to collect before a suit 

is filed (CPC, Sects. 326–329; CPBA, Sects. 326–329). Parties to the 

litigation, as well as third parties who possess documents relevant to 

the case, may be ordered to produce those documents (CPC, Sect. 387; 

CPBA, Sect. 385). If a party to the litigation refuses to do so, the court 

may draw a negative inference (CPC, Sect. 388; CPBA, Sect. 386).

At trial, the judge will examine witnesses based on the judge’s own 

questions or those formulated by the parties (CPC, Sect. 442; CPBA, 

Sect. 440). Witnesses may refuse to answer questions under certain 

circumstances, including if (a) the answer would subject them to 

criminal prosecution or affect their honor; or (b) they cannot answer 
Discovery in International Civil Litigation

60

without revealing a military, professional, scientific, artistic, or industrial secret (CPC, Sect. 444; CPBA, Sect. 442).

Seeking Discovery in Argentina

The Hague Convention entered into force on July 7, 1987, with declarations and reservations under Articles 23 and 33. Argentina will not 

execute letters of request issued for the purpose of obtaining pretrial

discovery of documents as is the practice in common law countries 

(Art. 23 Declaration). Argentina excludes the application of Chapter II 

of the Hague Convention (addressing the taking of evidence by diplomatic officers, consular agents, and commissioners) (Art. 33 Reservation).

Argentina has indicated that when a foreign state is party to the 

Hague Convention, the procedures of the Hague Convention are mandatory. Argentina considers the following types of proceedings to fall 

within the scope of “civil or commercial matters” under the Hague 

Convention: bankruptcy or insolvency, insurance, social security, employment, taxation, and consumer protection. 

The Hague Convention is the only means through which foreign 

parties may take a deposition (voluntary or involuntary) in Argentina.

Requests for judicial assistance with respect to testimony should include the interrogatories for the requested witnesses (CPC, Sect. 370).

Hearings for oral examinations take place exclusively before a judge 

(CPC, Sect. 34; CPBA Sect. 34) or judicial clerk (when a judge delegates his or her authority to a clerk) (CPC, Sects. 38, 360).

The central authority designated to receive letters of request in 

Argentina is the Office of International Assistance Department—Office 

of the Legal Advisor, Ministry of Foreign Affairs, International Trade 

and Worship. 

Data Privacy/Protection Laws and Blocking Statutes

There is no blocking statute in force in Argentina. Personal data privacy protection is provided in the Federal Personal Data-Protection 

Act (No. 25,326). This Act does not preclude disclosure of personal 

data without consent when such disclosure is required by the court.

Generally, restrictions placed on the disclosure of information under 

such provisions will not apply when disclosure is required by the Ar-
Appendix A: Discovery Practices in Selected Jurisdictions

61

gentine judiciary (Sects. 5, 23) or is needed to assist in international 

judicial proceedings (Sect. 12).

A person or entity might not be compelled to answer questions or 

produce documents that would be prejudicial to Argentina’s national 

security (Sect. 17).

Australia

Overview

In Australia, the Federal Court Rules 2011 (Cth) govern discovery at 

the federal level. In addition, each state or territory has its own discovery rules (for example, the Uniform Civil Procedure Rules 2005 

(NSW); Civil Procedure Act 2010 (VIC)). Evidentiary issues in federal 

court are governed by the Evidence Act 1995 (Cth), the Foreign Evidence Act 1994 (Cth) (FEA), and the Foreign Proceedings (Excess of

Jurisdiction) Act 1984 (Cth).

Pretrial discovery of documents as understood in common law 

countries is not generally available in Australia. 

Seeking Discovery in Australia

The Hague Convention entered into force on December 22, 1992, with 

declarations and reservations under Articles 8, 15, 16, 23, 33, and 40.

Among these declarations and reservations, Australia will not execute 

letters of request issued for the purpose of obtaining pretrial discovery 

of documents as is the practice in common law countries (Art. 23 

Declaration). The Hague Convention has been implemented in Australia by state legislation. States and territories have, with minor variations, adopted similar schemes, and their individual rules apply to the 

execution of letters of request (for example, the Evidence Act 1958 

(Vic), pt 1, div 1C; Evidence Act 1977 (Qld), div 3, pt 3; Evidence Act

1906 (WA), ss 115–118A; Evidence on Commission Act 2001 (Tas); 

Evidence Act 1971 (ACT), pt 12B; Evidence Act 1939 (NT), div 2, pt 

6; cf. Evidence Act 1929 (SA), s 59F).

Australia considers the following types of proceedings to fall 

within the scope of “civil or commercial matters” under the Hague 

Convention: bankruptcy, insurance and employment law claims, and 

others. Implementing statutes in Australia make it clear that the Convention does not cover criminal matters (Evidence on Commission Act 
Discovery in International Civil Litigation

62

(1995) (NSW), s 33; Evidence on Commission Act 2001 (TAS), s 5, 

Evidence Act 1906 (WA), s 117).

Some state laws expressly permit courts to give effect to letters of 

request by issuing only orders for the production of documentary evidence (Evidence on Commission Act (1995) (NSW), s 33(3)(b); Evidence on Commission Act 2001 (TAS), s 5(3)(b)); Evidence Act 1906 

(WA), s 117(3)(b)). Other state laws authorize courts to issue orders 

for the production of documents attendant to an examination (Evidence on Commission Act 1988 (QLD), pt 2; Evidence Act 1958 (Vic), 

pt 1, div 1C).

When a witness is willing to give evidence without the issuance of 

a subpoena, depositions may be taken without an order of an Australian court. A diplomatic officer or consular agent may take evidence 

with compulsion upon application to the Attorney-General’s Department of the Commonwealth of Australia. A court has the power to order testimony from individuals if the purpose for which the foreign 

court desires the testimony is use, or possible use, as evidence at trial

(Pickles and Ors v Gratzon and Ors [2002] NSWSCR 688 (5 August 

2002), citing Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc (1984) 2 NSWLR 327, Clarke J). 

The central authority designated to receive letters of request is the 

Secretary of the Attorney-General’s Department of the Commonwealth 

of Australia. However, in each state and territory the Registrar or Prothonotary of the Supreme Court has been designated as an additional 

authority. In practice, letters of request and other enquiries are referred to state or territory law departments. A U.S. court may send the 

letter of request directly to Australia’s central authority.

Australia has stated that the Hague Convention is not the only 

method available to a state party to obtain evidence abroad, and that 

there is nothing to prevent one state from approaching another state 

outside of the mechanism to obtain and provide evidence.

Further information on seeking discovery in Australia can be 

found on the Australian Attorney-General Department’s website at 

http://www.ag.gov.au/pil.

Data Privacy/Protection Laws and Blocking Statutes

Section 42 of the Foreign Evidence Act 1994 permits the Australian 

Attorney-General to prohibit by order the production of a document 
Appendix A: Discovery Practices in Selected Jurisdictions

63

or the giving of evidence by an Australian citizen or resident. The Attorney-General must not exercise this power unless he or she is satisfied that it is desirable to do so for the purpose of preventing prejudice 

to Australia’s security.

Section 7 of the Foreign Proceedings (Excess of Jurisdiction) Act 

1984 permits the Attorney-General to prohibit by order the production of a document in a foreign court or the giving of evidence by an

Australian citizen or resident in cases in which (a) such an order is 

desirable to protect the national interest; (b) the jurisdiction of the 

foreign court is contrary to international law, comity, or practice; or 

(c) the action taken by the foreign authority is contrary to international law, comity, or practice.

Canada

Overview

The Canada Evidence Act (CEA), R.S.C. 1985, c. C-5, s. 43–51 is the 

federal statute that applies to the taking of evidence relating to proceedings in courts outside of Canada. Most provinces also have additional statutes regarding the rules of evidence (for example, the Ontario Evidence Act, R.S.O. 1990, c. E-23). The Ontario Evidence Act 

(OEA) applies “to all actions and other matters whatsoever respecting 

which the Legislature has jurisdiction” (Article 2), while the CEA applies to “criminal proceedings and to all civil proceedings and other 

matters whatever respecting which Parliament has jurisdiction” (Article 2). The CEA further adds that the relevant part “shall not be so 

construed as to interfere with the right of legislation of the legislature 

of any province requisite or desirable for the carrying out of the objects hereof.”

Discovery is available from adverse parties in an action and, in certain instances, from non-party witnesses. Recent jurisprudence indicates that pretrial discovery of documents as understood in common 

law countries is available under Canadian law. When the production 

of documents is requested, parties are permitted to petition a Canadian court directly to compel the production of documents. 
Discovery in International Civil Litigation

64

Seeking Discovery in Canada

Canada is not a party to the Hague Convention. The CEA, R.S.C.

1985, c. C-5, s. 46 and various provincial statutes governing the law of 

evidence, such the Ontario Evidence Act, R.S.O. 1990, c. E.23, s. 60, 

grant Canadian courts the authority to enforce letters rogatory at the 

discretion of the court. The CEA expressly states that it applies to any 

“civil, commercial and criminal” matter pending before a foreign court 

or tribunal. The language of provincial statutes may differ. For example, section 60(1) of the Ontario Evidence Act refers to “an action, suit 

or proceeding” in the foreign court or tribunal.

A request from a foreign court or tribunal is given full force and 

effect unless it is contrary to the public policy of the jurisdiction to 

which the request is directed or otherwise prejudicial to the sovereignty of the citizens of that jurisdiction (R. v. Zingre [1981] 2 S.C.R. 

392, para. 18; Germany (Federal Republic) v. Canadian Imperial Bank of 

Commerce, CarswellOnt 102, para. 24). 

Canadian courts will exercise their discretion to enforce a foreign 

letter of request. Under section 46(1) of the CEA, there are four prerequisites to the Court’s exercise of its discretion: (1) it must appear 

that a foreign court wants to obtain the evidence; (2) the witness 

whose evidence is sought must be within the jurisdiction of the court 

that is asked to make the order; (3) the evidence sought must be in 

relation to a civil, commercial, or criminal matter pending before the 

foreign court; and (4) the foreign court must be a court of competent 

jurisdiction (Germany (Federal Republic) v. Canadian Imperial Bank of 

Commerce, 1997 CarswellOnt 102, para. 7).

If the prerequisites are met, the Canadian courts will decide 

whether to exercise their discretion by considering whether (a) the 

evidence sought is relevant; (b) the evidence sought is necessary for 

trial and will be adduced at trial, if admissible; (c) the evidence is not 

otherwise obtainable; (d) the order sought is not contrary to public 

policy; (e) the documents sought are identified with reasonable specificity; and (f) the order sought is not unduly burdensome, considering

what the relevant witnesses would be required to do, and produce, 

were the action to be tried in Canada (Re Friction Division Products, 

Inc. and E. I. Du Pont de Nemours & Co. Inc. (No. 2), (1986), 56 O.R. 

(2d) 722 (H.C.), para. 25; Treat Canada Ltd. v. Leonidas, 2012 CarswellOnt 14784, para. 19).
Appendix A: Discovery Practices in Selected Jurisdictions

65

Recent court decisions suggest that provincial legislation specifically allows for judges to enforce a request from a foreign court for 

pretrial discovery of documents and witnesses. The Court of Appeal of 

Ontario characterized section 60(1) of the Ontario Evidence Act as “a 

procedure for obtaining pre-trial discovery” (Lantheus Medical Imaging 

Inc. v. Atomic Energy of Canada Ltd., 2013 CarswellOnt 5042, para. 

37). In general, Canadian courts will only order an examination for 

the purpose of gathering evidence to be used at a trial (R. v. Zingre,

[1981] 2 S.C.R. 392, para. 22). Since R v. Zingre, the position on 

granting requests dealing with pretrial discovery has changed, and a 

number of decisions have acknowledged that there is no rule against 

making such an order (Lantheus Medical Imaging Inc. v. Atomic Energy 

of Canada Ltd., 2013 CarswellOnt 5042, para. 63, citing R. v. Zingre,

[1981] 2 S.C.R. 392 para. 22; Fecht v. Deloittte & Touche, (1996), 28 

O.R. (3d) 188 (Gen. Div.), para. 23; France (Republic) v. De Havilland 

Aircraft of Canada Ltd., (1991), 3 O.R. (3d) 705 (C.A.), para. 31).

Canadian courts will reject requests for documents and witness 

depositions which are vague and would not otherwise have been enforced in the Canadian context (Treat Canada Ltd. v. Leonidas, 2012 

CarswellOnt 14784, para. 21, interpreting R. v. Zingre, [1981] 2 S.C.R. 

392).

If the witness is willing to be deposed for a U.S. civil litigation, 

parties may arrange to depose the witness without prior consultation 

or permission from Canadian authorities. 

Letters rogatory requesting that a Canadian judicial authority compel a witness to testify or produce documents should be addressed to 

the court with jurisdiction over the witness or documents. In these 

circumstances, a Canadian lawyer will be required to assist.

Data Privacy/Protection Laws and Blocking Statutes

Certain provinces in Canada have enacted blocking statutes, such as 

the Ontario Business Records Protection Act, R.S.O. 1990, c. B.19

(BRPA) and the Quebec Business Concerns Records Act. Section 1 of 

the BRPA prevents the removal of business records from a point in 

Ontario to a point outside Ontario. However, some provincial blocking statutes, including the BRPA, have specific exceptions to allow 

courts to order production under the laws of Ontario or Canada
Discovery in International Civil Litigation

66

(BRPA, Sect. 1(d) examined in Germany (Federal Republic) v. Canadian 

Imperial Bank of Commerce, 1997 CarswellOnt 102, para. 32).

The Foreign Extraterritorial Measures Act, R.S.C. 1985, c. F-29 

allows the Attorney General to block extraterritorial measures from 

being taken in Canada, including the taking of evidence in Canada 

without consent.

France

Overview

The relevant law governing the taking of evidence in France is the 

Code of Civil Procedure (Code de procédure civile) (C.P.C.).

Pretrial discovery of documents as understood in common law 

countries is not available in France. Requests for the production of 

evidence are governed by Articles 138 and 139 of the C.P.C., which 

allow a party during the course of a proceeding to request a judge to 

order the production of evidence (C.P.C., Art. 142).

Seeking Discovery in France

The Hague Convention entered into force on October 6, 1974, with 

declarations and reservations under Articles 4, 16, 17, and 23. France 

has declared that it will not execute letters of request issued for the 

purpose of obtaining pretrial discovery of documents as known in 

common law countries (Art. 23 Declaration). However, France has 

further clarified that this declaration does not apply if the letter of request provides an “exhaustive list” of the documents sought and those 

documents have a direct and precise link with the object of the procedure. “Exhaustive list” means that the documents are identified with a 

reasonable degree of certainty, following a number of criteria, such as 

their date, type, or author (CA Paris, 18 September 2003, JurisData 

No. 2003-18509). France considers the following types of proceedings 

to fall within the scope of “civil or commercial matters” under the 

Hague Convention: bankruptcy, insurance, social security, employment, antitrust, and consumer protection matters.

In considering a request for judicial assistance, French courts may 

take into account the producing party’s objections to producing the 

requested documents, including those based on privilege. The judge’s 
Appendix A: Discovery Practices in Selected Jurisdictions

67

decision to allow discovery is discretionary (S. Guinchard, Droit et 

pratique de la procédure civile (7th ed. 2012), Nos. 341-42 and 341-52).

In a letter of request, the documents requested must be sufficiently 

specified (Cass Civ 2, 15 March 1979, [1979] Bull Civ II, No. 88).

Voluntary depositions of U.S. citizens in France are permitted. However, depositions of French citizens and nationals of third countries 

require permission from the French central authority and require a 

commission from the United States; this rule also applies when the 

individual is willing to participate voluntarily. A request for a deposition must be submitted at least 45 days prior to the proposed deposition date and must include detailed information, including the questions to be put to the witness or a statement of the subject matter of 

examination. Hearings for oral examinations take place before a judge 

(S. Guinchard, Droit et pratique de la procédure civile (7th ed. 2012), 

No. 342-150).

The central authority designated to receive letters of request is the 

Ministry of Justice. The letter of request must be accompanied by a 

French translation (Art. 4, para. 2 Declaration). 

France has indicated that when a foreign state is party to the 

Hague Convention, the procedures of the Hague Convention are mandatory to pursue evidence. French law requires that requests for evidence for the purpose of a foreign judicial or administrative proceeding be made pursuant to an applicable treaty, law, or regulation (Law 

No. 68-678 of 26 July 1968, as modified by Law No. 80-538 of July 16, 

1980, art. 1 bis). Violations carry penalties of six months of imprisonment and a fine of € 18,000.

Data Privacy/Protection Laws and Blocking Statutes

Pursuant to Article 5(1) of Council Regulation (EC) No. 2271/96 of 22 

November 1996, no person shall comply with requests from U.S. 

courts based on or resulting directly or indirectly from a list of foreign 

laws purported to have extraterritorial application.

Article 25(1) of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 further restricts France’s 

ability to transfer personal data to the United States by requiring that 

the United States be shown to provide an adequate level of protection 

for the personal data.
Discovery in International Civil Litigation

68

Germany

Overview

The relevant law governing the taking of evidence in Germany is the

German Code of Civil Procedure Zivilprozessordnung (ZPO).

Pretrial discovery of documents as understood in common law 

countries is not available under the ZPO (Federal Court of Appeals 

(BGH), June 4, 1992, NJW 1992, 3096 (3099)). To protect the interests of the party bearing the burden of proof, German courts have established a number of rebuttable presumptions in favor of that party 

with regard to information withheld by the opposing party (Geimer, 

Internationales Zivilprozessrecht, 7th ed. 2013, § 10 para. 35).

There is no general obligation to produce documents to assist the 

opposing party. Under certain circumstances, the court may order a 

party to produce a document (e.g., if the substantive law requires it 

(ZPO, §§ 421 et. seq.)). A witness can only be compelled to testify by a 

court-issued subpoena (ZPO, §§ 377, 380(1)). At trial, the presiding 

judge conducts the witness examination (ZPO, §§ 373, 396–397).

Following that examination by the court, both parties have the right to 

examine the witness through their legal counsel.

Seeking Discovery in Germany

The Hague Convention entered into force on June 26, 1979, with 

declarations and reservations under Articles 4, 18, 16, 23, 33, and 35.

Germany excludes the application of Chapter II of the Hague Convention (addressing the taking of evidence by diplomatic officers, consular agents, and commissioners) if German nationals are involved (Art. 

33 Reservation). In addition, Germany will not execute letters of request issued for the purpose of obtaining pretrial discovery of documents as known in common law countries (Art. 23 Declaration).

However, German law provides that requests for documents during 

pretrial discovery may be executed once the German Minister of Justice has (a) specified the requirements for such execution in a federal 

regulation and (b) determined that executing the request would not 

violate fundamental principles of the law of civil procedure and would 

ensure the protection of the legitimate interests of the parties concerned (Implementation Act, § 14, para. 2). As such a regulation has 

yet to be enacted, all requests for pretrial discovery of documents will 
Appendix A: Discovery Practices in Selected Jurisdictions

69

be refused (Munich Court of Appeals (OLG München), Oct. 31, 1980, 

IIC 1982, 759 (761)). 

While Germany will not execute letters of request issued for the 

purpose of obtaining pretrial discovery of documents, requests for the 

deposition of witnesses about the content of certain documents during 

pretrial discovery may be granted, as they are not excluded by the 

Hague Convention (Munich Court of Appeals (OLG München), November 27, 1980, November 27, 1980, IIC 1982, 762 (764); Düsseldorf Court of Appeals, July 6, 2007, NJW-RR 2008, 78 (79 et. seq.)).

According to the Munich Court of Appeals, the letter of request

must describe the subject matter of the witness examination in relatively broad terms (Munich Court of Appeals (OLG München), November 27, 1980, IIC 1982, 762 (764)). However, there is a split 

among Courts of Appeal as to what this requirement means in practice. And the views of German central authorities are divided with 

respect to whether a letter of request must enclose a list of questions 

for a witness.

The German Ministry of Justice must preapprove all requests for 

depositions, and all depositions must take place on U.S. consulate 

grounds. Germany and the United States have agreed, through exchange of diplomatic “notes verbale,” that a U.S. consular officer may 

take the voluntary testimony of a German citizen (Note Verbale of 

Auswärtiges Amt 512–521.60 USA, published in IPRax 1993, 224).

Section 7 of the Implementation Act requires every German state 

(Bundesland) to designate its own central authority to facilitate procedures under the Hague Convention (states often designate their respective Ministry of Justice or the Presiding Judge of the Court of Appeals). A list of the current German central authorities for the 

respective states can be found in Pabst, Münchener Kommentar zur 

ZPO, 4th ed. 2013, HBewÜ Art. 2 para. 9. A U.S. court or individual 

may send the letter of request directly to the relevant central authority. 

Letters of request should be prepared in duplicate and translated into 

German (Implementation Act, § 9).

Data Privacy/Protection Laws and Blocking Statutes

Personal data privacy protection is governed by the Federal Data Protection Act (Bundesdatenschutzgesetz) (BDSG). The transmission of 

personal data to foreign authorities is restricted if the person con-
Discovery in International Civil Litigation

70

cerned has a legitimate interest in withholding his or her data. Such a 

legitimate interest exists in particular when the authority requesting 

transmission of data does not provide for a level of data protection 

equivalent to the level provided under German law (BDSG, § 4b,

para. 2(2)). The European Commission has designated the United 

States as a country with an inadequate level of data protection (under 

Articles 25(1) and 6 of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of 

individuals) with regard to the processing of personal data and on the 

free movement of such data. Therefore, all data transfers to the United 

States are subject to special restrictions set forth in Sections 4b, 

para. 2(3) and 4c of the BDSG.

Furthermore, ZPO §§ 142(2) and 338 Nr. 4 protect business secrets with respect to witness statements and production of documents.

The German Penal Code (§§ 201 et. seq.) protects privileged information.

Hong Kong

Overview

The High Court Ordinance (Cap 4) (HCO) is the primary legislation 

governing civil procedure in Hong Kong. Order 24 of the Rules of the 

High Court (RHC) specifies the particular rules governing discovery.

Additionally, courts in Hong Kong regard the commentaries in the 

Hong Kong Civil Procedure (White Book) as highly authoritative.

Order 24, Rule 1(1) of the RHC requires parties to an action, after 

the close of pleadings, to disclose documents that are in the parties’ 

possession, custody, or power and relevant to matters at issue in an

action.

Upon a party’s application, Section 42(1) of the HCO empowers 

the Court in Hong Kong to order a non-party to disclose relevant documents if the non-party appears to be likely to have or has had such 

relevant documents in his or her possession or power. Order 24, Rule 

7A of the RHC further states that the applicant should specify the 

documents sought in the application.

Order 26 of the RHC contains procedures governing discovery by 

interrogatories, which generally consist of written and relevant questions that a party may require the other party to answer concerning 

matters at issue in an action. In addition to the relevance requirement, 
Appendix A: Discovery Practices in Selected Jurisdictions

71

the interrogatories (a) must not engage in a fishing expedition, and 

(b) must be necessary either for disposing of the matter fairly or for 

saving costs (Sit Ka Yin Priscilla v EOC & Others DCEO 11/1999).

Order 39, Rule 1 of the RHC contains procedures governing the

taking of evidence by deposition, before trial, of a witness who will be 

unable to attend the trial. Such deposition evidence is not automatically admissible at the trial, unless the party who wishes to rely on 

such deposition evidence further satisfies the Court in Hong Kong at 

the time of the trial that the deponent is dead, beyond the jurisdiction 

of the Court in Hong Kong, or unable to attend the trial because of

sickness or other infirmity.

Seeking Discovery in Hong Kong

The Hague Convention entered into force on August 22, 1978, with 

declarations and reservations in relation to Articles 4, 16, 23, and 33.

Hong Kong excludes the application of Chapter II of the Hague Convention (addressing the taking of evidence by diplomatic officers, consular agents, and commissioners) except for Article 15 (Art. 33 Reservation). The Court in Hong Kong will not give effect to a letter of 

request for the purpose of obtaining pretrial discovery of documents as 

known in common law countries (Art. 23 Declaration; Primarius Capital LLC v. Jayhawk Capital [2009] 4 HKLRD 58). Part VIII of the Evidence Ordinance (Cap 8) (EO) and Order 70 of the RHC provide the 

domestic framework that implements the Hague Convention in Hong 

Kong.

The general principle governing the taking of evidence in aid of 

foreign civil proceedings is that the Court in Hong Kong will “strive to 

give effect to a letter of request if at all possible” in deference to international comity (Re Troielli [1995] 2 HKC 785). The Court in Hong 

Kong will not render such assistance if, for example, the court regards 

the application as “frivolous, vexatious or an abuse of the process of 

the court” (Angela Chen v. Vivien Chen [2011] HKEC 1607).

Section 74 of the EO defines “civil proceedings” as “proceedings in 

any civil or commercial matter.” While addressing a similar provision 

in the United Kingdom, the House of Lords applied the laws of both 

the United Kingdom and the requesting jurisdiction in determining 

whether the set of foreign proceedings at issue indeed constituted civil 

proceedings for the purpose of the relevant legislation (Re State of 
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72

Norway’s Application [1990] 1 AC 723). The Court in Hong Kong will 

most likely adopt the United Kingdom’s position in this regard (paragraph 70/1/15 of the White Book cites Re State of Norway’s Application) 

and approach the matter on a case-by-case basis.

The Court in Hong Kong generally defers to the requesting court 

regarding a document’s relevance and admissibility in relation to the 

foreign proceedings, yet retains the discretion to amend or curtail any 

term of the letter of request that is improper, impermissible, or impracticable under Hong Kong laws (paragraphs 70/1/24 and 70/1/30 of 

the White Book).

Voluntary depositions may be conducted in Hong Kong regardless 

of the nationality of the witness, provided no compulsion is used. Section 77(1) of the EO provides that a person being examined pursuant 

to Order 70 of the RHC cannot be compelled to give evidence which 

he or she cannot be compelled to give in Hong Kong or in the requesting jurisdiction. Also, under Order 70, Rule 6 of the RHC, if a 

person claims that certain information enjoys privilege under the laws 

of the requesting jurisdiction, and if such information is taken as evidence in Hong Kong, then the Court in Hong Kong must retain such 

evidence, pending the requesting court’s determination on the issue of 

privilege.

The central authority designated to receive letters of request is the 

Registrar of the High Court of the Hong Kong Special Administrative 

Region of the People’s Republic of China.

Data Privacy/Protection Laws and Blocking Statutes

There is no blocking statute in force in Hong Kong. Principle 3 in 

Schedule 1 of the Personal Data (Privacy) Ordinance (Privacy Ordinance) confines the use of any personal data collected to the purpose 

of its initial collection. However, section 58 of the Privacy Ordinance 

provides an exception to Principle 3 and allows such personal data to 

be used for prevention, preclusion, or remedying (including punishment) of unlawful or seriously improper conduct, dishonesty, or malpractice.

The Court in Hong Kong may limit discovery of technical secrets 

to only selected individuals in an action, who in turn are under the 

court’s order not to use or disseminate further the discovered materi-
Appendix A: Discovery Practices in Selected Jurisdictions

73

als, to ensure both full discovery and adequate protection of the technical secrets (Order 24, Rules 15 and 15A of the RHC).

Singapore

Overview

In Singapore, at the federal level, the relevant rules governing discovery are provided by the Rules of Court (Chapter 322, R 5, Revised 

Edition 2006).

In civil proceedings, applications for pretrial discovery may be 

made to the court under Order 24 of the Rules of Court. Order 24 

provides for general and specific discovery. Under general discovery, a 

party has to provide discovery of all documents that it relies on, and 

documents that could adversely affect its case or adversely affect or 

support the other party’s case. Specific discovery, which allows a party 

to seek discovery of specific documents or classes of documents, extends to documents that may lead to a “train of inquiry” resulting in 

the obtaining of information that may adversely affect the party’s case 

or adversely affect or support the other party’s case. Parties need only 

provide discovery of documents that are or have been in their possession, custody, or power. Applications will not be granted if the court is 

satisfied that discovery is not necessary for the fair disposal of a matter 

or for the saving of costs.

Examination by deposition is available when necessary “for the 

purposes of justice” under Order 39 of the Rules of Court, although 

depositions may only be received in evidence if certain requirements 

are met (Order 38 Rule 9 of the Rules of Court). Interrogatories are 

available when necessary for the fair disposal of a matter or for the 

saving of costs under Order 26 of the Rules of Court. A party may be 

requested, by way of notice, to admit specified facts under Order 27 of 

the Rules of Court.

Seeking Discovery in Singapore

The Hague Convention entered into force on December 26, 1978, with 

declarations and reservations under Articles 4 and 23. Singapore excludes the application of Chapter II of the Hague Convention (addressing the taking of evidence by diplomatic officers, consular agents, 

and commissioners). Singapore will not execute letters of request is-
Discovery in International Civil Litigation

74

sued for the purpose of obtaining pretrial discovery of documents as 

known in common law countries (Art. 23 Declaration).

Requests for evidence from foreign authorities are governed by the 

Evidence (Civil Proceedings in Other Jurisdictions) Act (Chapter 98, 

Revised Edition 1987) (Evidence in Other Jurisdictions Act) and Order 66 of the Rules of Court (Chapter 322, Rule 5, Revised Edition 

2006) (Order 66). The Evidence in Other Jurisdictions Act may apply 

to countries that are not parties to the Hague Convention (Singapore 

Civil Procedure 2013, para. 66/5/1).

The general principle is that a request from a foreign court for assistance in obtaining evidence for civil proceedings in that court will 

ordinarily be given effect “so far as is proper and practicable, and to 

the extent that is permissible under Singapore law” (Singapore Civil 

Procedure 2013, para. 66/5/2). Under the Evidence in Other Jurisdictions Act, the term “civil proceedings” is defined as “proceedings in 

any civil or commercial matter”; it does not include “proceedings 

arising out of any fiscal, monetary or revenue law or measure” (Evidence in Other Jurisdictions Act § 2).

The types of proceedings that fall within the scope of “civil or 

commercial matters” under the Hague Convention are “subject to judicial interpretation.” Based on an English case that is likely to be a 

source of guidance, it is “a wide general term, covering all kinds of 

suits, petitions, summonses, applications for orders and so forth, of 

which courts are competent to take cognisance” (Singapore Civil Procedure 2013, para. 66/5/3, citing In re Extradition Act, 1870, Ex parte 

Treasury Solicitor [1969] 1 W.L.R. 12).

Pursuant to section 4 of the Evidence in Other Jurisdictions Act, 

the Singaporean court may require a person to produce specified documents that appear to be, or are likely to be, in the person’s possession, custody, or power. Under section 5(1) of the Evidence in Other 

Jurisdictions Act, a person may avoid production by referring to relevant laws of Singapore or the laws of the country or territory of the 

requesting court. Under section 4(3) of the Evidence in Other Jurisdictions Act, a Singaporean court limits the taking of written and oral 

examination of witnesses to steps that can be taken for obtaining evidence in Singapore civil proceedings.

The central authority designated to execute letters of request is the 

Supreme Court of Singapore. Letters of request must be in English.
Appendix A: Discovery Practices in Selected Jurisdictions

75

Data Privacy/Protection Laws and Blocking Statutes

Personal data privacy protection is provided in the Personal DataProtection Act 2012 (Act No. 26 of 2012). However, the Act does not 

preclude disclosure of personal data without consent when such disclosure is necessary for court proceedings. Provisions that regulate the 

disclosure of information by the public and private sectors also exist in 

various other statutes and subsidiary legislation. Restrictions placed on 

the disclosure of information under such provisions may not apply 

when disclosure is required or permitted by a Singaporean court 

(Banking Act (Ch. 19, Rev. Ed. 2008) Third Sch.; Infectious Diseases 

Act (Ch. 137, Rev. Ed. 2003) § 25).

Under Section 5(3) of the Evidence in Other Jurisdictions Act, a 

person may not be compelled to answer any question or produce any 

document that would be prejudicial to the security of Singapore.

The court may tailor the terms of its discovery order to allow for

full disclosure while providing adequate protection for the material for 

which a party claims secrecy (Singapore Civil Procedure 2013, para. 

24/3/38).

Switzerland

Overview

The Swiss Civil Procedure Code (RS 272) (CPC) governs civil proceedings in Switzerland. However, each Swiss state (canton) has its 

own civil procedure rules.

Pretrial discovery of documents as understood in common law 

countries is not available in Switzerland. According to the CPC, both 

the parties to the proceedings and third parties have a general duty to 

produce documents when so requested by the judge (CPC, Art. 160). 

If a third party refuses to produce the requested documents without 

any valid reason (grounds of privilege described below), sanctions 

may apply (for example, a fine, CPC, Art. 166). If a party refuses to 

cooperate without a justified reason as set out in section 2 of the CPC, 

the judge may take the party’s refusal into account when weighing the 

evidence (CPC, Art. 164).

Under the CPC, a witness must testify in front of the court. Outof-court witness statements (or so-called affidavits) are not admissible 

in ordinary Swiss civil proceedings (François Vouilloz, La preuve dans 
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76

le Code de procédure civile suisse, published in Pratique juridique actuelle, PJA 2009, p. 830 et seq., p. 840). 

Some cantonal decisions seem to have admitted written testimony 

in civil proceedings. However, such written testimony is considered as 

simple written evidence (CPC, Art. 177) and cannot replace in-court 

testimony (OGer/LU of 16.6.2011, no. 3B 11 21).

Even though the oral examination of witnesses is the rule in Switzerland, the court may obtain information in writing in some instances, such as when the formal examination of a witness is deemed 

unnecessary (e.g., obtaining a medical certificate instead of the physician’s testimony) (CPC, Art. 190).

Seeking Discovery in Switzerland

The Hague Convention entered into force in Switzerland on January 1, 

1995, with declarations and reservations under Articles 1, 2, 4, 8, 15, 

16, 17, and 23. Switzerland will not execute letters of request issued 

for the purpose of obtaining pretrial discovery of documents as known 

in common law countries except under limited circumstances (Art. 23 

Declaration). Letters of request related to pretrial discovery will not be 

executed by Swiss authorities, if and to the extent that (a) the request 

has no direct and necessary relationship to the proceeding; (b) the 

person is required to identify all documents relating to the case which 

are in his or her possession or over which he or she has power of disposal; (c) the person is required to produce documents in his or her 

possession that are not mentioned in the letter of request; and (d) the 

request may damage legally protected interests of the person concerned (for example, business secrets) (Art. 6 Declaration, Federal Office of Justice (FOJ) Guidelines, p. 27; CPC, Art. 156).

The Federal Office of Justice (FOJ) has indicated that it interprets 

the provision “civil or commercial matter” broadly, though it does not 

include criminal or tax matters (FOJ Guidelines, p. 5). 

Most cantons require questions for a witness by letter of request to 

be drafted with sufficient certainty and clarity (otherwise, the request 

is returned for redrafting). When a foreign authority participates in the 

gathering of evidence on Swiss soil, the Swiss judge assumes full control over the civil proceedings (FOJ Guidelines, p. 25). The Swiss 

judge is the only person entitled to use coercive means (for example, 
Appendix A: Discovery Practices in Selected Jurisdictions

77

fines) against any person who fails to cooperate with a letter of request

(FOJ Guidelines, p. 25).

Evidence may be taken by diplomatic officers, consular agents, and 

commissioners of the foreign state, without compulsion only with 

prior authorization by the Federal Department of Justice and Police 

(FDJP) (Art. 5 Declaration; FOJ Guidelines, p. 22). The request should 

be addressed to the relevant Cantonal central authority. In order to 

speed up the procedure, a copy should also be sent to the FOJ (FOJ 

Guidelines, p. 22). It should be noted, however, that authorization to 

proceed is granted only when it is impossible or unreasonable to leave 

the collection of evidence to the Swiss judicial authorities (FOJ 

Guidelines, p. 32).

Under Swiss civil procedure, a party or a witness may claim privilege from giving any evidence. The witness may invoke any of the 

privilege grounds contained in the CPC, such as the privilege against 

self-incrimination (in both criminal and civil matters), the privilege 

not to testify against close family relatives, attorney–client privilege, as 

well as the privilege not to disclose a secret if such disclosure is punishable under Swiss criminal law or if the person invoking the privilege is able to show prima facie that there is an overriding interest in 

maintaining secrecy (CPC, Arts. 160 lit. b, 163, 165, 166). 

The central authorities designated to execute letters of request are 

specific to each canton. More precisely, the competent central authority is the cantonal authority of the place in which the request has to be 

executed (Cantonal central authorities) (Art. 2 Declaration, and Art. 2 

and 24 Convention; FOJ Guidelines, 3d edition 2003, latest update 

January 2013, p. 21). However, a letter of request may also be lodged 

with the FOJ in Bern, which will then forward it to the competent 

Cantonal central authority (Art. 2 Declaration). Depending on the 

place in Switzerland in which the assistance is sought, the letter of request may need to be translated into German, French, or Italian (Art. 3 

Declaration).

Switzerland has indicated that when a foreign state is party to the 

Hague Convention, priority should be given to procedures provided in 

the Hague Convention when requesting judicial assistance with respect to discovery (Art. 1 Declaration).
Discovery in International Civil Litigation

78

Data Privacy/Protection Laws and Blocking Statutes

The collection of evidence in connection with legal proceedings constitutes an act of public authority and is not left to the discretion of the 

parties. The collection of evidence in Switzerland for the purposes of a 

foreign proceeding (including witness interviews, collection of documents, and other fact-finding efforts) may implicate Swiss criminal 

law, unless it occurs within the frame of a mutual assistance proceeding in judicial matters. The Swiss Criminal Code (RS 311.0) (SCC) 

contains several provisions with respect to the protection of territorial 

sovereignty (SCC, Arts. 271, 273, 299) and, in particular, prohibits 

anyone from carrying out activities that may violate the territorial sovereignty of Switzerland.

All data relating to individuals or legal persons are, under Swiss 

law, protected by the Federal Data Protection Act of 12 June 1992 (RS 

235.1) (DPA). In addition, Article 47, paragraph 1 of the Federal Act 

of 8 November 1934 on Banks and Savings Banks (SR 952.0) (the 

Banking Act) provides for the protection of banking secrecy, and any 

breach of banking secrecy may trigger criminal sanctions. Thus, to 

avoid any issues in relation to Article 47 of the Banking Act, the disclosure of information covered by the Act should occur within the 

frame of international mutual assistance proceedings.

The above-mentioned blocking statutes and other provisions of 

the SCC, as well as the restrictions set out in the DPA, do not apply, as 

a matter of principle, to the extent that the relevant evidence is collected within the frame of international mutual assistance proceedings.

SCC, Article 321 provides rules governing the breach of professional 

confidentiality, and SCC, Article 28(a) relates to the protection of 

sources. Unlike the other above-mentioned provisions of the SCC, 

both rules will also apply in the frame of mutual assistance proceedings (a contrario SCC, Art. 271; Banking Act, Art. 47; DPA, Art. 2).

United Kingdom

Overview

The United Kingdom Civil Procedure Rules (CPR) govern the collection of evidence in civil proceedings in the United Kingdom.

Pretrial discovery of documents as understood in the United States

is not available in the United Kingdom (Panayaiotou v Sony Music En-
Appendix A: Discovery Practices in Selected Jurisdictions

79

tertainment (UK) Ltd [1994] Ch. 142). Under CPR 31.6, standard disclosure requires a party to disclose only (a) the documents on which 

he or she relies; (b) the documents that adversely affect his or her

case, adversely affect another party’s case, or support another party’s 

case; and (c) the documents that he or she is required to disclose by a 

relevant practice direction.

Document requests are available under CPR 31.12. The court may 

make an order for specific disclosure or specific inspection. An order 

for specific disclosure is an order that a party must do one or more of 

the following things: (a) disclose documents or classes of documents 

specified in the order; (b) carry out a search to the extent stated in the 

order; and/or (c) disclose any documents located as a result of that 

search.

Witness depositions are available under CPR 34.8 upon application to the court. A judge, court examiner, or any other person appointed by the court will take the deposition.

Seeking Discovery in the United Kingdom

The Hague Convention entered into force on September 14, 1976, 

with declarations and reservations under Articles 8, 18, 23, 27, and 33.

The United Kingdom considers the following types of proceedings to 

fall within the scope of “civil or commercial matters” under the Hague 

Convention: bankruptcy or insolvency, reorganization under bankruptcy law, insurance, employment, and consumer protection, among 

others. The Evidence (Proceedings in Other Jurisdictions) Act 1975 

(1975 Act) gives effect to the principles of the Hague Convention as 

supplemented by RSC Order 70. The authority of an English court to 

order persons within its jurisdiction to provide oral or documentary 

evidence is exclusively statutory, contained in the 1975 Act as supplemented by RSC Order 70.

A U.K. court may order evidence to be obtained in the United 

Kingdom when it is satisfied that (a) the request is issued by a court 

that exercises jurisdiction in any other part of the United Kingdom or 

in any country or territory outside the United Kingdom; and (b) the 

evidence concerned is to be obtained for the purpose of civil proceedings that have been instituted before the requesting court or whose 

institution before that court is contemplated (1975 Act, § 1).
Discovery in International Civil Litigation

80

The United Kingdom will not execute letters of request issued for 

the purpose of obtaining pretrial discovery of documents as known in 

countries such as the United States (Art. 23 Declaration). Thus, a letter of request for evidence that is being used as part of a chain of inquiry to discover material that might lead to obtaining admissible evidence at trial will not be executed, even if such a practice is permitted 

in the foreign state (e.g., U.S. Fed. R. Civ. P. 26 (Penn-Texas Corporation v. Murat Anstalt [1964] 1 QB 40)). The United Kingdom has further declared that it understands “Letters of Request issued for the 

purpose of obtaining pretrial discovery of documents” as including 

any letter of request that requires a person to (a) state what documents 

relevant to the proceedings to which the letter of request relates are, or 

have been, in his or her possession, custody, or power; or (b) produce 

any documents other than particular documents specified in the letter 

of request as being documents appearing to the requested court to be, 

or to be likely to be, in his or her possession, custody, or power (Art. 

23 Declaration).

In executing a letter of request, a U.K. court may order the production of “particular documents.” The House of Lords has explained 

that the term “particular documents” means individual documents 

separately described. A generic description of several documents (for 

example, monthly bank statements for August to September) may be 

used, but the exact document in each case must be clearly indicated 

(Re Asbestos Insurance Coverage Cases [1985] 1 WLR 331). Furthermore, “particular documents” must be actual documents shown by 

evidence to exist or to have existed. General requests like a request 

“for any memoranda, correspondence, or other documents relevant 

therein,” are too broad and will be struck out (Rio Zinc Corporation v. 

Westing House Electric Corporation [1978] AC 547).

In executing a letter of request, the court may issue a summons to 

compel the attendance of the witness. If the order is willfully disobeyed, the witness may be charged with contempt of court (CPR 

34.10, 81). RSC Order 39 provides for the examination of witnesses 

“in like manner as at the trial of a cause or matter.” Letters rogatory 

may specifically direct the examination to take a certain form (e.g.,

written questions). Voluntary depositions of a willing witness in civil 

or commercial matters pursuant to a commission or on notice are 

permitted regardless of the nationality of the witness.
Appendix A: Discovery Practices in Selected Jurisdictions

81

The central authority designated to execute letters of request is the

Senior Master, Foreign Process Section, Royal Courts of Justice. A U.S. 

court or individual may send the letter of request directly to the 

United Kingdom’s central authority. The letter of request should be 

made on notice under CPR 23 (PD 34A.5).

It is unclear whether the United Kingdom considers the procedures of the Hague Convention to be mandatory in pursuing evidence

when a foreign state is party to the Hague Convention. In 1986, the 

United Kingdom filed an amicus brief with the Supreme Court in the 

Aérospatiale litigation206 in which it supported the view that the convention was not mandatory. The CPR states that in cases in which

witness evidence must be taken under compulsion, or when the government of a country might not readily consent to a special examiner 

taking evidence in its country, a letter of request “would certainly be 

needed.” 

Data Privacy/Protection Laws and Blocking Statutes

The 1975 Act limits discovery under certain circumstances. A person 

will not be compelled to give evidence if it is prejudicial to the security 

of the United Kingdom (1975 Act, § 3(3)). This provision is in addition to the claim for privilege on the ground that disclosure of the 

document would be injurious to the public interest (1975 Act, § 3(1)).

The Data Protection Act of 1998 (DPA) may limit discovery. The 

DPA protects “personal information,” and it could therefore limit the 

disclosure of documents containing such personal information. In 

Durham County Council v. Dunn, [2012] EWCA Civ 1654, however, 

the Court of Appeal recognized that the DPA does not provide a novel 

ground on which to refuse discovery, but that there should be a “balancing exercise” between the right to a fair trial and the protection of 

personal information. The court also noted that the DPA contains an 

exemption for court proceedings.

Under section 4 of the Protection of Trading Interests Act 1980, a 

U.K court is prohibited from making an order under section 2 of the 

1975 Act if the request “infringes the jurisdiction of the United King-

 

206. Brief of Government of the United Kingdom of Great Britain and Northern 

Ireland as Amicus Curiae in Support of Penthenes, Société Nationale Industrielle 

Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 U.S. 522 (1987) (No. 85-1695), 1986 WL 

727497.
Discovery in International Civil Litigation

82

dom or is prejudicial to the sovereignty of the United Kingdom” (1975 

Act, § 4).

If the U.K. court determines that a request for judicial assistance in 

a civil matter is an attempt by a foreign state to exercise extraterritorial 

jurisdiction in penal or tax matters, the British Government will view 

the request as prejudicial to U.K. sovereignty and the U.K. court will 

refuse to execute the request. (See Rio Zinc Corporation v. Westing 

House Electric Corporation [1978] AC 547.)

A witness may claim privilege from giving any evidence that he or 

she could not be compelled to give under the law of England or the 

foreign country (1975 Act, § 3(1)). U.K. law recognizes the privilege 

against self-incrimination in both civil and criminal proceedings; public interest immunity, which limits the scope of discovery with respect 

to documents that would be injurious to the public interest (for example, because withholding of the documents is necessary for the proper 

functioning of a public service); and communications made without 

prejudice (1975 Act, § 3(4)).
83

Appendix B: The Hague Convention on the Taking of 

Evidence Abroad in Civil or Commercial Matters207

The States signatory to the present Convention,

Desiring to facilitate the transmission and execution of Letters of Request and to further the accommodation of the different methods 

which they use for this purpose,

Desiring to improve mutual judicial co-operation in civil or commercial matters,

Have resolved to conclude a Convention to this effect and have agreed 

upon the following provisions -

Chapter I – Letters of Request

Article 1

In civil or commercial matters a judicial authority of a Contracting 

State may, in accordance with the provisions of the law of that State, 

request the competent authority of another Contracting State, by 

means of a Letter of Request, to obtain evidence, or to perform some 

other judicial act.

A Letter shall not be used to obtain evidence which is not intended for 

use in judicial proceedings, commenced or contemplated.

The expression “other judicial act” does not cover the service of judicial documents or the issuance of any process by which judgments or 

orders are executed or enforced, or orders for provisional or protective 

measures.

 

207. Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231 (entered 

into force Oct. 7, 1972). The text of the Hague Convention and additional information 

are available on the official website of the Hague Conference on Private International 

Law. See Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters, Hague Conf. on Private Int’l Law, http://www.hcch.net/index_ 

en.php?act=conventions.text&cid=82.
Discovery in International Civil Litigation

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Article 2

A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority 

of another Contracting State and to transmit them to the authority 

competent to execute them. Each State shall organise the Central Authority in accordance with its own law.

Letters shall be sent to the Central Authority of the State of execution 

without being transmitted through any other authority of that State.

Article 3

A Letter of Request shall specify -

a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority; 

b) the names and addresses of the parties to the proceedings 

and their representatives, if any; 

c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; 

d) the evidence to be obtained or other judicial act to be performed.

Where appropriate, the Letter shall specify, inter alia -

e) the names and addresses of the persons to be examined; 

f) the questions to be put to the persons to be examined or a 

statement of the subject-matter about which they are to be 

examined; 

g) the documents or other property, real or personal, to be 

inspected; 

h) any requirement that the evidence is to be given on oath or 

affirmation, and any special form to be used; 

i) any special method or procedure to be followed under 

Article 9.

A Letter may also mention any information necessary for the application of Article 11.
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

85

No legalisation or other like formality may be required.

Article 4

A Letter of Request shall be in the language of the authority requested 

to execute it or be accompanied by a translation into that language.

Nevertheless, a Contracting State shall accept a Letter in either English 

or French, or a translation into one of these languages, unless it has 

made the reservation authorised by Article 33.

A Contracting State which has more than one official language and 

cannot, for reasons of internal law, accept Letters in one of these languages for the whole of its territory, shall, by declaration, specify the 

language in which the Letter or translation thereof shall be expressed 

for execution in the specified parts of its territory. In case of failure to 

comply with this declaration, without justifiable excuse, the costs of 

translation into the required language shall be borne by the State of 

origin.

A Contracting State may, by declaration, specify the language or languages other than those referred to in the preceding paragraphs, in 

which a Letter may be sent to its Central Authority.

Any translation accompanying a Letter shall be certified as correct, 

either by a diplomatic officer or consular agent or by a sworn translator or by any other person so authorised in either State.

Article 5

If the Central Authority considers that the request does not comply 

with the provisions of the present Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter 

of Request, specifying the objections to the Letter.

Article 6

If the authority to whom a Letter of Request has been transmitted is 

not competent to execute it, the Letter shall be sent forthwith to the 

authority in the same State which is competent to execute it in accordance with the provisions of its own law.
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Article 7

The requesting authority shall, if it so desires, be informed of the time 

when, and the place where, the proceedings will take place, in order 

that the parties concerned, and their representatives, if any, may be 

present. This information shall be sent directly to the parties or their 

representatives when the authority of the State of origin so requests.

Article 8

A Contracting State may declare that members of the judicial personnel of the requesting authority of another Contracting State may be 

present at the execution of a Letter of Request. Prior authorisation by 

the competent authority designated by the declaring State may be required.

Article 9

The judicial authority which executes a Letter of Request shall apply 

its own law as to the methods and procedures to be followed.

However, it will follow a request of the requesting authority that a 

special method or procedure be followed, unless this is incompatible 

with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason 

of practical difficulties.

A Letter of Request shall be executed expeditiously.

Article 10

In executing a Letter of Request the requested authority shall apply the 

appropriate measures of compulsion in the instances and to the same 

extent as are provided by its internal law for the execution of orders 

issued by the authorities of its own country or of requests made by 

parties in internal proceedings.

Article 11

In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to 

give the evidence -
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

87

a) under the law of the State of execution; or 

b) under the law of the State of origin, and the privilege or 

duty has been specified in the Letter, or, at the instance of 

the requested authority, has been otherwise confirmed to 

that authority by the requesting authority.

A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of 

origin and the State of execution, to the extent specified in that 

declaration.

Article 12

The execution of a Letter of Request may be refused only to the extent 

that -

a) in the State of execution the execution of the Letter does 

not fall within the functions of the judiciary; or 

b) the State addressed considers that its sovereignty or security would be prejudiced thereby.

Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the 

subject-matter of the action or that its internal law would not admit a 

right of action on it.

Article 13

The documents establishing the execution of the Letter of Request 

shall be sent by the requested authority to the requesting authority by 

the same channel which was used by the latter.

In every instance where the Letter is not executed in whole or in part, 

the requesting authority shall be informed immediately through the 

same channel and advised of the reasons.

Article 14

The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any nature.
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Nevertheless, the State of execution has the right to require the State 

of origin to reimburse the fees paid to experts and interpreters and the 

costs occasioned by the use of a special procedure requested by the 

State of origin under Article 9, paragraph 2.

The requested authority whose law obliges the parties themselves to 

secure evidence, and which is not able itself to execute the Letter, 

may, after having obtained the consent of the requesting authority, 

appoint a suitable person to do so. When seeking this consent the requested authority shall indicate the approximate costs which would 

result from this procedure. If the requesting authority gives its consent 

it shall reimburse any costs incurred; without such consent the requesting authority shall not be liable for the costs.

Chapter II – Taking of Evidence by Diplomatic Officers, 

Consular Agents and Commissioners

Article 15

In a civil or commercial matter, a diplomatic officer or consular agent 

of a Contracting State may, in the territory of another Contracting 

State and within the area where he exercises his functions, take the 

evidence without compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State which 

he represents.

A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent only if permission to that effect is 

given upon application made by him or on his behalf to the appropriate authority designated by the declaring State.

Article 16

A diplomatic officer or consular agent of a Contracting State may, in 

the territory of another Contracting State and within the area where he 

exercises his functions, also take the evidence, without compulsion, of 

nationals of the State in which he exercises his functions or of a third 

State, in aid of proceedings commenced in the courts of a State which 

he represents, if -
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

89

a) a competent authority designated by the State in which he 

exercises his functions has given its permission either generally or in the particular case, and 

b) he complies with the conditions which the competent authority has specified in the permission.

A Contracting State may declare that evidence may be taken under this 

Article without its prior permission.

Article 17

In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the 

territory of a Contracting State in aid of proceedings commenced in 

the courts of another Contracting State if -

a) a competent authority designated by the State where the 

evidence is to be taken has given its permission either generally or in the particular case; and 

b) he complies with the conditions which the competent authority has specified in the permission.

A Contracting State may declare that evidence may be taken under this 

Article without its prior permission.

Article 18

A Contracting State may declare that a diplomatic officer, consular 

agent or commissioner authorised to take evidence under Articles 15, 

16 or 17, may apply to the competent authority designated by the declaring State for appropriate assistance to obtain the evidence by compulsion. The declaration may contain such conditions as the declaring 

State may see fit to impose.

If the authority grants the application it shall apply any measures of 

compulsion which are appropriate and are prescribed by its law for 

use in internal proceedings.
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Article 19

The competent authority, in giving the permission referred to in Articles 15, 16 or 17, or in granting the application referred to in Article 

18, may lay down such conditions as it deems fit, inter alia, as to the 

time and place of the taking of the evidence. Similarly it may require 

that it be given reasonable advance notice of the time, date and place 

of the taking of the evidence; in such a case a representative of the 

authority shall be entitled to be present at the taking of the evidence.

Article 20

In the taking of evidence under any Article of this Chapter persons 

concerned may be legally represented.

Article 21

Where a diplomatic officer, consular agent or commissioner is authorised under Articles 15, 16 or 17 to take evidence -

a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is taken or 

contrary to any permission granted pursuant to the above 

Articles, and shall have power within such limits to administer an oath or take an affirmation; 

b) a request to a person to appear or to give evidence shall, 

unless the recipient is a national of the State where the action is pending, be drawn up in the language of the place 

where the evidence is taken or be accompanied by a 

translation into such language; 

c) the request shall inform the person that he may be legally 

represented and, in any State that has not filed a declaration under Article 18, shall also inform him that he is not 

compelled to appear or to give evidence; 

d) the evidence may be taken in the manner provided by the 

law applicable to the court in which the action is pending 

provided that such manner is not forbidden by the law of 

the State where the evidence is taken; 
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

91

e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence contained in 

Article 11.

Article 22

The fact that an attempt to take evidence under the procedure laid 

down in this Chapter has failed, owing to the refusal of a person to 

give evidence, shall not prevent an application being subsequently 

made to take the evidence in accordance with Chapter I.

Chapter III – General Clauses

Article 23

A Contracting State may at the time of signature, ratification or accession, 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.

Article 24

A Contracting State may designate other authorities in addition to the 

Central Authority and shall determine the extent of their competence. 

However, Letters of Request may in all cases be sent to the Central 

Authority.

Federal States shall be free to designate more than one Central Authority.

Article 25

A Contracting State which has more than one legal system may 

designate the authorities of one of such systems, which shall have 

exclusive competence to execute Letters of Request pursuant to this 

Convention.

Article 26

A Contracting State, if required to do so because of constitutional limitations, may request the reimbursement by the State of origin of fees 

and costs, in connection with the execution of Letters of Request, for 
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the service of process necessary to compel the appearance of a person 

to give evidence, the costs of attendance of such persons, and the cost 

of any transcript of the evidence.

Where a State has made a request pursuant to the above paragraph, 

any other Contracting State may request from that State the reimbursement of similar fees and costs.

Article 27

The provisions of the present Convention shall not prevent a Contracting State from -

a) declaring that Letters of Request may be transmitted to its 

judicial authorities through channels other than those 

provided for in Article 2; 

b) permitting, by internal law or practice, any act provided 

for in this Convention to be performed upon less restrictive conditions; 

c) permitting, by internal law or practice, methods of taking 

evidence other than those provided for in this Convention.

Article 28

The present Convention shall not prevent an agreement between any 

two or more Contracting States to derogate from -

a) the provisions of Article 2 with respect to methods of 

transmitting Letters of Request; 

b) the provisions of Article 4 with respect to the languages 

which may be used; 

c) the provisions of Article 8 with respect to the presence of 

judicial personnel at the execution of Letters; 

d) the provisions of Article 11 with respect to the privileges 

and duties of witnesses to refuse to give evidence;

e) the provisions of Article 13 with respect to the methods of 

returning executed Letters to the requesting authority; 

f) the provisions of Article 14 with respect to fees and costs; 

g) the provisions of Chapter II.
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

93

Article 29

Between Parties to the present Convention who are also Parties to one 

or both of the Conventions on Civil Procedure signed at The Hague on 

the 17th of July 1905 and the 1st of March 1954, this Convention shall 

replace Articles 8-16 of the earlier Conventions.

Article 30

The present Convention shall not affect the application of Article 23 of 

the Convention of 1905, or of Article 24 of the Convention of 1954.

Article 31

Supplementary Agreements between Parties to the Conventions of 

1905 and 1954 shall be considered as equally applicable to the present 

Convention unless the Parties have otherwise agreed.

Article 32

Without prejudice to the provisions of Articles 29 and 31, the present 

Convention shall not derogate from conventions containing provisions 

on the matters covered by this Convention to which the Contracting 

States are, or shall become Parties.

Article 33

A State may, at the time of signature, ratification or accession exclude, 

in whole or in part, the application of the provisions of paragraph 2 of 

Article 4 and of Chapter II. No other reservation shall be permitted.

Each Contracting State may at any time withdraw a reservation it has 

made; the reservation shall cease to have effect on the sixtieth day after 

notification of the withdrawal.

When a State has made a reservation, any other State affected thereby 

may apply the same rule against the reserving State.

Article 34

A State may at any time withdraw or modify a declaration.
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Article 35

A Contracting State shall, at the time of the deposit of its instrument of 

ratification or accession, or at a later date, inform the Ministry of Foreign Affairs of the Netherlands of the designation of authorities, pursuant to Articles 2, 8, 24 and 25.

A Contracting State shall likewise inform the Ministry, where appropriate, of the following -

a) the designation of the authorities to whom notice must be 

given, whose permission may be required, and whose assistance may be invoked in the taking of evidence by diplomatic officers and consular agents, pursuant to Articles 

15, 16 and 18 respectively; 

b) the designation of the authorities whose permission may 

be required in the taking of evidence by commissioners 

pursuant to Article 17 and of those who may grant the assistance provided for in Article 18; 

c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 

23 and 27; 

d) any withdrawal or modification of the above designations 

and declarations; 

e) the withdrawal of any reservation.

Article 36

Any difficulties which may arise between Contracting States in connection with the operation of this Convention shall be settled through 

diplomatic channels.

Article 37

The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague Conference on Private 

International Law.

It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

95

Article 38

The present Convention shall enter into force on the sixtieth day after 

the deposit of the third instrument of ratification referred to in the second paragraph of Article 37.

The Convention shall enter into force for each signatory State which 

ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

Article 39

Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a Member of this Conference or of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of 

Justice may accede to the present Convention after it has entered into 

force in accordance with the first paragraph of Article 38.

The instrument of accession shall be deposited with the Ministry of 

Foreign Affairs of the Netherlands.

The Convention shall enter into force for a State acceding to it on the 

sixtieth day after the deposit of its instrument of accession.

The accession will have effect only as regards the relations between the 

acceding State and such Contracting States as will have declared their 

acceptance of the accession. Such declaration shall be deposited at the 

Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the 

Contracting States.

The Convention will enter into force as between the acceding State 

and the State that has declared its acceptance of the accession on the 

sixtieth day after the deposit of the declaration of acceptance.

Article 40

Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for 

the international relations of which it is responsible, or to one or more 
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of them. Such a declaration shall take effect on the date of entry into 

force of the Convention for the State concerned.

At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for the territories mentioned in 

such an extension on the sixtieth day after the notification indicated in 

the preceding paragraph.

Article 41

The present Convention shall remain in force for five years from the 

date of its entry into force in accordance with the first paragraph of 

Article 38, even for States which have ratified it or acceded to it subsequently.

If there has been no denunciation, it shall be renewed tacitly every five 

years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of 

the Netherlands at least six months before the end of the five year 

period.

It may be limited to certain of the territories to which the Convention 

applies.

The denunciation shall have effect only as regards the State which has 

notified it. The Convention shall remain in force for the other Contracting States.

Article 42

The Ministry of Foreign Affairs of the Netherlands shall give notice to 

the States referred to in Article 37, and to the States which have acceded in accordance with Article 39, of the following -

a) the signatures and ratifications referred to in Article 37; 

b) the date on which the present Convention enters into force 

in accordance with the first paragraph of Article 38; 
Appendix B: The Hague Convention on the Taking of Evidence Abroad in Civil 

or Commercial Matters

97

c) the accessions referred to in Article 39 and the dates on 

which they take effect; 

d) the extensions referred to in Article 40 and the dates on 

which they take effect; 

e) the designations, reservations and declarations referred to 

in Articles 33 and 35; 

f) the denunciations referred to in the third paragraph of 

Article 41.

In witness whereof the undersigned, being duly authorised thereto, 

have signed the present Convention.

Done at The Hague, on the 18th day of March 1970, in the English 

and French languages, both texts being equally authentic, in a single 

copy which shall be deposited in the archives of the Government of 

the Netherlands, and of which a certified copy shall be sent, through 

the diplomatic channel, to each of the States represented at the Eleventh Session of the Hague Conference on Private International Law.

99

Appendix C: Sample Letter Rogatory208

NAME OF COURT IN SENDING STATE REQUESTING JUDICIAL 

ASSISTANCE

NAME OF PLAINTIFF

V.

NAME OF DEFENDANT

DOCKET NUMBER

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTERS 

ROGATORY)

(NAME OF THE REQUESTING COURT) PRESENTS ITS COMPLIMENTS 

TO THE APPROPRIATE JUDICIAL AUTHORITY OF (NAME OF RECEIVING STATE), AND REQUESTS INTERNATIONAL JUDICIAL ASSISTANCE 

TO (OBTAIN EVIDENCE/EFFECT SERVICE OF PROCESS) TO BE USED IN 

A (CIVIL, CRIMINAL, ADMINISTRATIVE) PROCEEDING BEFORE THIS 

COURT IN THE ABOVE CAPTIONED MATTER. A (TRIAL/HEARING) ON 

THIS MATTER IS SCHEDULED AT PRESENT FOR (DATE) IN (CITY, 

STATE, COUNTRY).

THIS COURT REQUESTS THE ASSISTANCE DESCRIBED HEREIN AS 

NECESSARY IN THE INTERESTS OF JUSTICE. THE ASSISTANCE REQUESTED IS THAT THE APPROPRIATE JUDICIAL AUTHORITY OF 

(NAME OF RECEIVING STATE) (COMPEL THE APPEARANCE OF THE 

BELOW NAMED INDIVIDUALS TO GIVE EVIDENCE/PRODUCE DOCUMENTS) (EFFECT SERVICE OF PROCESS UPON THE BELOW NAMED 

INDIVIDUALS).

(NAMES OF WITNESSES/PERSONS TO BE SERVED)

(NATIONALITY OF WITNESSES/PERSONS TO BE SERVED)

(ADDRESSES OF WITNESSES/PERSONS TO BE SERVED)

 

208. This sample letter rogatory was taken from the U.S. Department of State, 

Preparation of Letters Rogatory, http://travel.state.gov/content/travel/english/legalconsiderations/judicial/obtaining-evidence/preparation-letters-rogatory.html (last visited Mar. 5, 2015).
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(DESCRIPTION OF DOCUMENTS OR OTHER EVIDENCE TO BE 

PRODUCED)

FACTS

(THE FACTS OF THE CASE PENDING BEFORE THE REQUESTING 

COURT SHOULD BE STATED BRIEFLY HERE, INCLUDING A LIST OF 

THOSE LAWS OF THE SENDING STATE WHICH GOVERN THE MATTER 

PENDING BEFORE THE COURT IN THE RECEIVING STATE.)

(QUESTIONS)

(IF THE REQUEST IS FOR EVIDENCE, THE QUESTIONS FOR THE WITNESSES SHOULD BE LISTED HERE).

(LIST ANY SPECIAL RIGHTS OF WITNESSES PURSUANT TO THE LAWS 

OF THE REQUESTING STATE HERE).

(LIST ANY SPECIAL METHODS OR PROCEDURES TO BE FOLLOWED).

(INCLUDE REQUEST FOR NOTIFICATION OF TIME AND PLACE FOR 

EXAMINATION OF WITNESSES/DOCUMENTS BEFORE THE COURT IN 

THE RECEIVING STATE HERE).

RECIPROCITY

THE REQUESTING COURT SHOULD INCLUDE A STATEMENT EXPRESSING A WILLINGNESS TO PROVIDE SIMILAR ASSISTANCE TO JUDICIAL 

AUTHORITIES OF THE RECEIVING STATE.

REIMBURSEMENT FOR COSTS

THE REQUESTING COURT SHOULD INCLUDE A STATEMENT EXPRESSING A WILLINGNESS TO REIMBURSE THE JUDICIAL AUTHORITIES OF 

THE RECEIVING STATE FOR COSTS INCURRED IN EXECUTING THE 

REQUESTING COURT’S LETTERS ROGATORY.

SIGNATURE OF REQUESTING JUDGE

TYPED NAME OF REQUESTING JUDGE

NAME OF REQUESTING COURT

CITY, STATE, COUNTRY

DATE

(SEAL OF COURT)
101

Appendix D: 28 U.S.C. §§ 1781–1783

28 U.S.C. § 1781. Transmittal of letter rogatory or request

(a) The Department of State has power, directly, or through suitable 

channels—

(1) to receive a letter rogatory issued, or request made, by a 

foreign or international tribunal, to transmit it to the tribunal, 

officer, or agency in the United States to whom it is addressed, and to receive and return it after execution; and

(2) to receive a letter rogatory issued, or request made, by a 

tribunal in the United States, to transmit it to the foreign or 

international tribunal, officer, or agency to whom it is addressed, and to receive and return it after execution.

(b) This section does not preclude—

(1) the transmittal of a letter rogatory or request directly from 

a foreign or international tribunal to the tribunal, officer, or 

agency in the United States to whom it is addressed and its 

return in the same manner; or

(2) the transmittal of a letter rogatory or request directly from 

a tribunal in the United States to the foreign or international 

tribunal, officer, or agency to whom it is addressed and its 

return in the same manner.

28 U.S.C. § 1782. Assistance to foreign and international 

tribunals and to litigants before such tribunals

(a) The district court of the district in which a person resides or is 

found may order him to give his testimony or statement or to produce 

a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter 

rogatory issued, or request made, by a foreign or international tribunal 

or upon the application of any interested person and may direct that 

the testimony or statement be given, or the document or other thing 

be produced, before a person appointed by the court. By virtue of his 

appointment, the person appointed has power to administer any nec-
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essary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the 

practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe 

otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of 

Civil Procedure.

A person may not be compelled to give his testimony or statement or 

to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States 

from voluntarily giving his testimony or statement, or producing a 

document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to 

him.

28 U.S.C. § 1783. Subpoena of person in foreign country

(a) A court of the United States may order the issuance of a subpoena 

requiring the appearance as a witness before it, or before a person or 

body designated by it, of a national or resident of the United States 

who is in a foreign country, or requiring the production of a specified 

document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is 

necessary in the interest of justice, and, in other than a criminal action 

or proceeding, if the court finds, in addition, that it is not possible to 

obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in 

any other manner.

(b) The subpoena shall designate the time and place for the appearance or for the production of the document or other thing. Service of 

the subpoena and any order to show cause, rule, judgment, or decree 

authorized by this section or by section 1784 of this title shall be effected in accordance with the provisions of the Federal Rules of Civil 

Procedure relating to service of process on a person in a foreign coun-
Appendix D: 28 U.S.C. §§ 1781–1783

103

try. The person serving the subpoena shall tender to the person to 

whom the subpoena is addressed his estimated necessary travel and 

attendance expenses, the amount of which shall be determined by the 

court and stated in the order directing the issuance of the subpoena.

105

Appendix E: Sample Rule 16 Pretrial Order

Addressing International Discovery Issues209

IN THE UNITED STATES DISTRICT COURT

FOR THE ___________________ DISTRICT OF ________________

JOHN DOE 

v.

[LIST]

CIVIL ACTION

NO. __________

PRETRIAL ORDER RE INTERNATIONAL DISCOVERY

AND NOW, this day of , 2015:

Pursuant to the Court’s authority under Rule 16, F.R.Civ.P., the 

parties having advised the Court [the Court determining from review 

of the pleadings and any other initial papers in the case] that international discovery may be involved, which may result in substantial delays in concluding discovery, the Court sets special procedures for expediting international discovery.

The provisions of this Order are intended to facilitate the parties 

taking of discovery outside the United States and/or pursuant to the 

laws of other countries, and will enable the Court to promptly rule on 

any disputes that arise concerning international discovery. 

It is therefore ORDERED:

1. Within _____ days, any party which intends to initiate discovery outside of the United States shall file and serve a statement 

making disclosure of its intention as of this time, including, but not 

limited to, the following:

(a) Whether applications will be made under the Hague 

Convention or any other treaty.

 

209. We thank U.S. District Judge Michael M. Baylson (E.D. Pa.) for providing a 

sample Rule 16 Pretrial Order addressing international discovery issues for inclusion 

in this guide.
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(b) Whether Letters Rogatory will be used.

(c) Whether parties abroad are likely to be deponents in 

this case.

(d) Whether documents located outside the United States 

will be sought for production, including, but not limited to, 

electronically stored information (“ESI”).

(e) Whether a party is aware of any blocking statutes or 

data protection laws that may apply to a request for discovery in 

a particular country, and if so, identify the country and if possible cite the laws which may be applicable.

2. Within _____ days, other parties shall respond to this initial 

disclosure of foreign discovery, by commenting:

(a) To what extent it will or will not oppose such 

discovery.

(b) If there will be opposition, state concisely the nature of 

the opposition and the reasons.

3. Within _____ days after the response, the parties shall meet 

and confer to discuss reaching agreement, or narrowing disputes 

concerning:

(a) Conducting discovery outside of the United States, pursuant to the Federal Rules of Civil Procedure or otherwise.

(b) What date shall be set to complete international discovery.

(c) Whether any objections will be presented to this Court 

and, if so, when.

(d) Whether any protective order will be sought and the 

extent to which disputes remain as to the contents of a protective order.

4. The Court set a deadline for the initiation of any discovery 

to take place outside the United States as ____________ [date]. 

5. Motions that may be necessary or appropriate on international discovery issues will be filed no later than ____________ [date]. 

Responses will be due within fourteen (14) days, and a reply brief 

should be filed within fourteen (14) days thereafter.
Appendix E: Sample Rule 16 Pretrial Order Addressing International Discovery Issues

107

6. In most countries with blocking statutes and/or data protection rules, an authorized official or judge within that country may be 

permitted to negotiate, hear, and/or authorize disclosure of information for use in litigation, even though it is arguable that a blocking 

statute or data protection law may be construed otherwise. In each 

party’s pretrial disclosures on international discovery, the Court requires each party relying on any such statute or rule to state: 

(a) Its knowledge of this practice as applied to this case;

(b) Its position on this issue;

(c) The contact information for the official or judge in each 

country who is likely to be knowledgeable or authorized to act 

within that country.

7. The Court anticipates having pretrial conferences with counsel to discuss the course, progress and any problems in international 

discovery. The first conference will take place on _______________ 

[date]. Subsequent conferences will be scheduled on a need basis. If 

problems and issues arise frequently, the Court may schedule conferences on a regular basis.

8. Counsel who do not practice regularly in this District may 

appear by telephone by notifying Chambers at least 48 hours prior to 

any pretrial conference.

9. Counsel appearing at these conferences, whether in person 

or by telephone, shall be authorized to speak on behalf of their client, 

and shall discuss with their client issues as they are arising so that they 

can accurately inform the Court of their position. 

10. If it appears that certain discovery is relevant in this case, 

but cannot be secured by normal means of discovery through the Federal Rules of Civil Procedure, or any convention or other recognized 

international procedure, the Court may undertake itself initiation of 

communications with any data protection officer of a foreign country 

or court of a foreign country to determine if such discovery can be 

authorized, facilitated and completed on a prompt basis.

11. The obligations stated above apply throughout this litigation, and apply to any initiation of international discovery.
Discovery in International Civil Litigation

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12. The Court encourages the parties to adopt, in this case, the 

Sedona Conference Principles of International Discovery, Disclosure 

and Data Protection as follows:

(a) With regard to data that are subject to preservation, disclosure, or discovery, courts and parties should demonstrate due 

respect to the Data Protection Laws of any foreign sovereign and 

the interests of any person who is subject to or benefits from 

such laws.

(b) Where full compliance with both Data Protection Laws 

and preservation disclosure and discovery obligations presents a 

conflict, a party’s conduct should be judged by a court or data 

protection authority under a standard of good faith and reasonableness.

(c) Preservation or discovery of Protected Data should be 

limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts 

of law and impact on the Data Subject.

(d) Where a conflict exists between Data Protection Laws 

and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected 

Data and minimize the conflict.

(e) A Data Controller subject to preservation, disclosure, or 

discovery obligations should be prepared to demonstrate that 

data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.

(f) Data Controllers should retain Protected Data only as 

long as necessary to satisfy legal or business needs. While a legal 

action is pending or remains reasonably anticipated, Data 

Controllers should preserve relevant information, including 

relevant Protected Data, with appropriate data safeguards.

BY THE COURT:

___________________________________

, U.S.D.J.
Appendix E: Sample Rule 16 Pretrial Order Addressing International Discovery Issues

109

IN THE UNITED STATES DISTRICT COURT

FOR THE ___________________ DISTRICT OF ________________

JOHN DOE 

v.

[LIST]

CIVIL ACTION

NO. __________

ORDER TO INITIATE PROCEEDINGS UNDER 

HAGUE CONVENTION

AND NOW, this day of _______, 2015, upon consideration of 

defendant’s Motion for Issuance of Letters of Request Pursuant to the 

Hague Convention of 18 March 1970 on the Taking of Evidence 

Abroad in Civil or Commercial Matters, it is hereby ORDERED that 

said Motion is GRANTED.

It is further ORDERED that the original executed copies of the 

Letters of Request attached to defendant’s Motion as Exhibits A and B 

shall be provided to counsel of defendant to serve and execute in 

conformity with the Hague Convention. 

BY THE COURT:

___________________________________

, U.S.D.J.

111

Table of Authorities

CASES

Aerocrine AB v. Apieron Inc., 267 F.R.D. 105 (D. Del. 2010), 6

Allstate Life Ins. Co. v. Linter Grp., 994 F.2d 996 (2d Cir. 1993), 31

Anselm Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 82 

(2d Cir. 2012), 46

Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (2014), 31, 32

Asis Internet Servs. v. Optin Global, Inc., No. C-05-05124 JCS, 2007 WL 

1880369, at *3 (N.D. Cal. June 29, 2007), 19

Astra Aktiebolag v. Andrax Pharm., Inc., 208 F.R.D. 92 (S.D.N.Y. 2002), 33, 

34, 35

AstraZeneca LP v. Breath Ltd., No. CIV. 08-1512 (RMB/AM), 2011 WL 

1421800, at *5 (D.N.J. Mar. 31, 2011), 34

B & L Drilling Electronics v. Totco, 87 F.R.D. 543 (W.D. Okla. 1978), 20

Bank of N.Y. v. Meridien Biao Bank Tanzania Ltd., 171 F.R.D. 135, 146–47 

(S.D.N.Y. 1997), 6

Barnes & Noble, Inc. v. LSI Corp., No. C 11-02709 EMC LB, 2012 WL 

1808849, at *2 (N.D. Cal. May 17, 2012), 19

Bayer AG v. Betachem Inc., 173 F.3d 188 (3d Cir. 1999), 48

Bodner v. Banque Paribas, 202 F.R.D. 370 (E.D.N.Y. 2000), 27, 29

Brake Parts, Inc. v. Lewis, No. 09-132 (KSF), 2009 WL 1939039, at *2 (E.D. 

Ky. July 6, 2009), 20

Brey Corp. v. LQ Mgmt., L.L.C., No. AW-11-CV-00718-AW, 2012 WL 

3127023, at *4 (D. Md. July 26, 2012), 23

Brief of Amicus Curiae the Republic of France in Support of Petitioners, 

Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522 (1987) (No. 85-1695), 1986 WL 727501, at *7, 30

Caremark Therapeutic Servs. v. Leavitt, 405 F. Supp. 2d 454 (S.D.N.Y. 2005), 

41

Chevron Corp. v. E-Tech Int’l, No. 10cv1146-IEG(Wmc), 2010 WL 3584520 

(S.D. Cal. Sept. 10, 2010), 40

Chris-Craft Indus. Prods., Inc. v. Kuraray Co., 184 F.R.D. 605 (N.D. Ill. 

1999), 6

Columbia Pictures Indus. v. Bunnell, No. CV 06-1093FMCJCX, 2007 WL 

2080419, at *12 (C.D. Cal. May 29, 2007), 25
Discovery in International Civil Litigation

112

Comision Ejecutiva v. Nejapa Power Co., LLC, No. 08-135-GMS, 2008 WL 

4809035, at *1 (D. Del. Oct. 14, 2008), 43

Compagnie Francaise d’Assurance Pour le Commerce Exterieur v. Phillips 

Petroleum Co., 105 F.R.D. 16 (S.D.N.Y. 1984), 27

Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), 

Inc., 685 F.3d 987 (11th Cir. 2012), 42

Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), 

Inc., 747 F.3d 1262 (11th Cir. 2014), 39, 42, 46, 50

DBMS Consultants Ltd. v. Computer Assocs. Int’l, Inc., 131 F.R.D. 367 (D. 

Mass. 1990), 20

Devon Robotics v. DeViedma, No. 09-CV-3552, 2010 WL 3985877, at *3–6 

(E.D. Pa. Oct. 8, 2010), 28

Doe Run Peru S.R.L. v. Trafigura AG, 2011 U.S. Dist. LEXIS 154559, at *3 

(D. Conn. Aug. 23, 2011), 41

Dubai Islamic Bank v. Citibank N.A., No. 99 CIV. 1930 (RMB) (THK), 2002 

WL 1159699, at *2–3 (S.D.N.Y. May 31, 2002), 5, 7

Ecuadorian Plaintiffs v. Chevron Co., 619 F.3d 373 (5th Cir. 2010), 41, 47

El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F. 

App’x 31 (5th Cir. 2009), 43

Estate of Yaron Ungar v. Palestinian Auth., 412 F. Supp. 2d 328 (S.D.N.Y. 

2006, 23

Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27 (2d Cir. 1998), 42

Evanston Ins. Co. v. OEA, Inc., No. Civ. S-02-1505 (DFL) (PAN), 2006 WL 

1652315, at *1–2 (E.D. Cal. June 13, 2006), 20

Fausto v. Credigy Servs. Corp., 251 F.R.D. 427 (N.D. Cal. 2008), 6

Fonseca v. Blumenthal, 620 F.2d 322 (2d Cir. 1980), 42

Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th Cir. 

2002), 40

Gap, Inc. v. Stone Int’l Trading, Inc., No. 93 Civ. 0638 (SWK), 1994 WL 

38651, at *1 (S.D.N.Y. Feb. 4, 1994), 12

GEA Group AG v. Flex-N-Gate Corp. and Shahid Khan, 740 F.3d 411 (7th 

Cir. 2014), 42

Gerling Global Reinsurance Corp. of Am. v. Quackenbush, No. Civ. S-00-

0506WBSJFM, 2000 WL 777978, at *9–10 (E.D. Cal. June 9, 2000), 26

Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992), 33, 

34

Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010), 33, 35

Gushlak v. Gushlak, 486 F. App’x 215 (2d Cir. 2012), 40
Table of Authorities

113

Heraeus Kuzler, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011), 50

In re 28 U.S.C. § 1782 of Okean B.V., No. 12 Misc. 104 (PAE), 2013 WL 

4744817, at *2 (S.D.N.Y. Sept. 4, 2013), 26

In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-MD-1775, 2010 WL 

2976220 (E.D.N.Y. July 23, 2010), 28

In re Application of Ecuador, No. C-10-80225 MISC CRB (EMC), 2011 WL 

736868, at *10 (N.D. Cal. Feb. 22, 2011), 46

In re Asbestos Ins. [1985] 1 W.L.R. 331 (House of Lords), 17

In re Asbestos Ins. Coverage Cases [1985] 1 All E.R. 716, 22

In re Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008), 43

In re Bankers Trust Co. v. Bethlehem Steel Corp., 752 F.2d 874 (3d Cir. 

1984), 20

In re Chevron, 749 F. Supp. 2d 141 (2010), 48

In re Chevron Corp., 633 F.3d 153 (3d Cir. 2011), 46, 48

In re Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010), 43

In re Clerici, 481 F.3d 1324 (11th Cir. 2007), 40, 42, 45, 46, 47, 48, 49

In re Dubey, 949 F. Supp. 2d 990 (C.D. Cal. 2013), 43, 44

In re Godfrey, 526 F. Supp. 2d 417 (S.D.N.Y. 2007), 41

In re Gushlak, No. 11-MC-218 (NGG), 2011 WL 3651268, at *4 (E.D.N.Y. 

Aug. 17, 2011), 41, 49, 50

In re Hallmark Corp., 534 F. Supp. 2d 951 (D. Minn. 2007), 43

In re Inversiones y Gasolinera Petroleos Valenzuela, No. 08-20378-MC, 2011 

WL 181311, at *7 (S.D. Fla. Jan. 19, 2011), 41

In re IPC Do Nordeste, LTDA, No. 12-50624, 2012 WL 4448886 (E.D. Mich. 

Sept. 25, 2012), 40, 50

In re Letter of Request from the Boras Dist. Ct., 153 F.R.D. 31 (E.D.N.Y. 

1994), 38

In re Letter of Request from Crown Prosecution Serv., 870 F.2d 686 (D.C. 

Cir. 1989), 45

In re Letter Rogatory from Justice Court, Dist. of Montreal, 523 F.2d 562 (6th 

Cir. 1975), 37

In re Letters Rogatory from Canada, No. 08-MC-50465-DT, 2008 WL 

2760963, at *2 (E.D. Mich. July 15, 2008), 20

In re Letters Rogatory from Examining Magistrate, 26 F. Supp. 852 (D. Md. 

1933), 37

In re Letters Rogatory from the Local Court, 29 F. Supp. 2d 776 (E.D. Mich. 

1998), 38
Discovery in International Civil Litigation

114

In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216 (9th Cir. 1976), 37, 

44

In re Letters Rogatory, etc., 385 F.2d 1017 (2d Cir. 1967), 37

In re Maxwell Commc’n Corp. plc, 93 F.3d 1036 (2d Cir. 1996), 30

In re Mesa Power Group, LLC, No. 2:11-mc-280-ES, 2012 WL 6060941 

(D.N.J. Nov. 20, 2012), 40, 49

In re Microsoft Corp., 428 F. Supp. 2d 188 (S.D.N.Y. 2006), 40, 47, 48, 49, 50

In re Norfolk Southern Corp., 626 F. Supp. 2d 882 (N.D. Ill. 2009), 43

In re Operadora DB Mex., S.A., No. 6:09-vc-383-Orl-22GJK, 2009 WL 

2423138, at *9 (M.D. Fla. Aug. 4, 2009), 43

In re Oxus Gold, No. 06-82-GEB, 2007 WL 1037387 (D.N.J. Apr. 2, 2007), 43

In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-

MD-1720 (JG)(JO), 2010 WL 3420517 (E.D.N.Y. Aug. 27, 2010), 28

In re Perrier Bottled Water Litig., 138 F.R.D. 348 (D. Conn. 1991), 26

In re Republic of Ecuador, No. C-10-80225 MISC CRB, 2011 WL 736868, at 

*7 (N.D. Cal. Feb. 22, 2011), 48

In re Request for Judicial Assistance from the City Court of Jonkoping, 

Sweden, No. 3:96 MC 419 EBB, 1997 WL 1052017 (D. Conn. Oct. 10, 

1997), 38

In re Request for Judicial Assistance from the Dist. Court in Svitavy, 748 F. 

Supp. 2d 522 (E.D. Va. 2010), 38

In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006), 43

In re Thai-Lao Lignite (Thail.) Co., 821 F. Supp. 2d 289 (D.D.C. 2011), 41

In re Uranium Antitrust Litig., 480 F. Supp. 1138 (N.D. Ill. 1979), 29

In re Urethane Antitrust Litig., 267 F.R.D. 361 (D. Kan. 2010), 17

In re Vivendi Universal, S.A. Sec. Litig., No. 02CIV5571RJHHBP, 2006 WL 

3378115, at *3 (S.D.N.Y. Nov. 16, 2006), 25

In re Winning (HK) Shipping Co., No. 09-22659-MC, 2010 WL 1796579 

(S.D. Fla. Apr. 30, 2010), 43

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), 39, 41, 42, 

43, 44, 45, 46, 47

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 105 F.R.D. 435 (S.D.N.Y. 

1984), 4

Kiobel v. Royal Dutch Petroleum Co., No. 02 Civ. 7618 (KMW)(HBP), 2005 

WL 1925656, at *2 (S.D.N.Y. Aug. 11, 2005), 33

Kleisch & Co. v. Liberty Media Corp., 217 F.R.D. 517 (D. Colo. 2003), 23

Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp. 2d 769

(S.D.N.Y. 2012), 19, 20, 23
Table of Authorities

115

Linde v. Arab Bank, PLC, 706 F.3d 92 (2d Cir. 2013), 7

Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y. 2010), 7, 29

Marubeni Am. Corp. v. LBA Y.K., 335 F. App’x 95 (2d Cir. 2009), 46, 47

Milliken & Co. v. Bank of China, 758 F. Supp. 2d 238 (S.D.N.Y. 2010), 12

Minpeco S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 (S.D.N.Y. 

1987), 27, 28, 29

NBC v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999), 42

Nova Biomedical Corp. v. i-STAT Corp., 182 F.R.D. 419 (S.D.N.Y. 1998), 50

Odone v. Croda Int’l PLC, 950 F. Supp. 10 (D.D.C. 1997), 34

OJSC Ukrnafta v. Carpatsky Petroleum Corp., No. 3:09 MC 265 (JBA), 2009 

WL 2877156, at *4 (D. Conn. Aug. 27, 2009), 43

Okubo v. Reynolds (In re Letters Rogatory from the Tokyo Dist. Prosecutor’s 

Office), 16 F.3d 1016 (9th Cir. 1994), 42

Orlich v. Helm Bros., Inc. 160 A.D.2d 135, 560 N.Y.S.2d 10 (N.Y. App. Div. 

1990), 20

Orlich v. Helm Bros., Inc., 160 A.D.2d 135 (N.Y. Sup. Ct. 1990), 12

Panayaiotou v. Sony Music Entertainment (UK) Ltd. [1994] ch. 142, 22

Pershing Pac. W., LLC v. MarineMax, Inc., No. 10-CV-1345-L DHB, 2013 

WL 941617 (S.D. Cal. Mar. 11, 2013), on reconsideration in part, No. 10-

CV-1345-L DHB, 2013 WL 1628938 (S.D. Cal. Apr. 16, 2013), 27, 28–29

Philan Ins. Ltd. v. Frank B. Hall & Co., 138 F.R.D. 45 (S.D.N.Y. 1991), 20

Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006), 40

Renfield Corp. v. E. Remy Martin & Co., 98 F.R.D. 442 (D. Del. 1982), 35

Rich v. KIS Cal., Inc., 121 F.R.D. 254 (M.D.N.C. 1988), 12

Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 

1992), 27, 29

Rio Zinc Corp. v. Westing House Electric Corp. [1978] AC 547, 22

Salerno v. Lecia, Inc., No. 97-CV-973S(H), 1999 WL 299306, at *3 

(W.D.N.Y. Mar. 23, 1999), 26, 29

Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004), 

39, 40, 47, 48

Shcherbakovskiy v. Seitz, No. 03 CV 1220 (RPP), 2010 WL 3155169, at *3 

n.7 (S.D.N.Y. July 30, 2010), 6

Smithkline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, on 

reconsideration in part, 194 F.R.D. 624 (N.D. Ill. 2000), 34

Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. 

v. Rogers, 357 U.S 197 (1958), 28
Discovery in International Civil Litigation

116

Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct. S.D. Iowa, 482 

U.S. 522 (1987), 1, 4, 7, 8, 9, 11, 12, 14, 16, 20, 25, 26, 28, 30

Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199 (E.D.N.Y. 2008), 29

Strauss v. Credit Lyonnais, S.A., 249 F.R.D. 429 (E.D.N.Y. 2008), 7

Tulip Computers Int’l B.V. v. Dell Computer Corp., No. CIV.A. 00-981-KAJ, 

2003 WL 24046752 (D. Del. Feb. 10, 2003), 34

Tulip Computers Int’l, B.V. v. Dell Computer Corp., 210 F.R.D. 100 (D. Del. 

2002), 34

United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001), 40, 44

United States v. Badger, No. 2:10-CV-00935, 2013 WL 1309165, at *7 (D. 

Utah Mar. 31, 2013), 20

United States v. Halliburton Co., 270 F.R.D. 26 (D.D.C. 2010), 6

United States v. Salim, 855 F.2d 944 (2d Cir. 1988), 24

United States v. Staples, 256 F.2d 290 (9th Cir. 1958), 19

Upper Deck Int’l B.V. v. Upper Deck Co., No. 11CV1741-LAB KSC, 2013 WL 

3746086, at *2 (S.D. Cal. July 12, 2013), 12, 17

VLT Corp. v. Unitrode Corp., 194 F.R.D. 8 (D. Mass. 2000), 33, 34

Westernbank Puerto Rico v. Kachkar, No. CIV. 07-1606 (ABC/BJM), 2009 

WL 530087, at *2 (D.P.R. Jan. 7, 2009), 24

Wultz v. Bank of China Ltd., 910 F. Supp. 2d 548 (S.D.N.Y. 2012), 31

Wultz v. Bank of China Ltd., 942 F. Supp. 2d 452 (S.D.N.Y. 2013), 31

Wultz v. Bank of China Ltd., 979 F. Supp. 2d 479 (S.D.N.Y. 2013), on 

reconsideration in part, No. 11 CIV. 1266 SAS, 2013 WL 6098484 (S.D.N.Y. 

Nov. 20, 2013), 31

Wultz v. Bank of China Ltd., No. 11 CIV. 1266 SAS, 2013 WL 132664 

(S.D.N.Y. Jan. 10, 2013), 31

Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys “R” Us, Inc., 126 F.3d 15 (2d 

Cir. 1997), 44

STATUTES

22 C.F.R. § 92.54, 19

22 C.F.R. § 92.66 (1995), 21

28 U.S.C. § 636, 40

28 U.S.C. § 701, 37

28 U.S.C. § 1391(c)–(d), 41

28 U.S.C. §§ 1781–1783, 1, 101–03

28 U.S.C. § 1781, 19, 21, 45

28 U.S.C. § 1782, passim
Table of Authorities

117

28 U.S.C. § 1783, 5, 8, 23

Federal Arbitration Act, 9 U.S.C. §§ 1–16, 44

Walsh Act, 28 U.S.C. § 1783, 8, 23

OTHER AUTHORITIES

Agreement between the United States and the U.S.S.R. relating to the 

Procedure To Be Followed in the Execution of Letters Rogatory (in force 

between the United States and Ukraine) (1935), 18

Agreement Exempting from Authentication Signatures Attached to Letters 

Rogatory Exchanged Between Puerto Rico, the Philippine Islands, and 

Spain, with Declaration (1901), 18

Agreement to Facilitate the Conduct of Litigation with International Aspects 

in Either Country with Sierra Leone (1966), 18

Agreement Relating to the Taking of Evidence with the Federal Republic of 

Germany (1956), 18

Agreement Relating to the Taking of Evidence with the Federal Republic of 

Germany (1980), 18

Graig J. Alvarez, Conducting Discovery in Foreign Countries, in International 

Litigation—Defending and Suing Foreign Parties in U.S. Federal Courts 

279 (David J. Levy ed., 2003), 24

Philip W. Amram, Explanatory Report on the 1970 Hague Evidence Convention, 

Hague Conference on Private International Law (1970), http://www.hcch.

net/index_en.php?act=publications.details&pid=2968&dtid=3 (last visited 

Mar. 5, 2015), 8

Kenneth Beale et al., Solving the § 1782 Puzzle: Bringing Certainty to the 

Debate Over 28 U.S.C. § 1782’s Application to International Arbitration, 47 

Stan. J. Int’l L. 51 (2011), 42

Gary Born & Peter Rutledge, International Civil Litigation in United States

Courts (5th ed. 2011), 22

Conclusions and Recommendations Adopted by the Special Commission on the 

Practical Operation of the Hague Apostille, Evidence and Service Conventions, 

Hague Conference on Private International Law ¶ 23 (2003), 

http://www.hcch.net/upload/wop/lse_concl_e.pdf, 17

Conclusions and Recommendations of the Special Commission on the 

Practical Operation of the Hague Apostille, Service, and Taking of 

Evidence and Access to Justice Conventions ¶ 13 (Feb. 2–12, 2009),

http://www.hcch.net/upload/wop/jac_concl_e.pdf (last visited Mar. 5, 

2015), 10–11, 13
Discovery in International Civil Litigation

118

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters: Central Authorities, Hague Conference on Private 

International Law, http://www.hcch.net/index_en.php?act=conventions. 

authorities&cid=82 (last visited Mar. 5, 2015), 13

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters, Questionaires & Responses, Hague Conference on 

Private International Law, http://www.hcch.net/index_en.php?act=

conventions.publications&dtid=33&cid=82 (last visited Mar. 5, 2015), 11

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 

June 10, 1958, 21 U.S.T. 2517, 44

Convention on the Taking of Evidence Abroad in Civil or Commercial 

Matters, Mar. 18, 1970, 23 U.S.T. 2555, art. 27 [Hague Convention], 

passim

Department of State, Convention on Taking of Evidence Abroad, S. Exec. 

Rep. No. 92-25, at 3 (1972) (statement of Carl F. Salans, Deputy Legal 

Adviser), 8

Draft Practical Handbook on the Operation of the Evidence Convention, Hague 

Conference on Private International Law (2014), http://www.hcch.net/

upload/wop/2014/2014sc_pd01en.pdf (last visited Mar. 5, 2015), 8, 9, 10, 

11, 13, 14, 17

EU Council Directive 95/46, art. 8, 2005 O.J. (L 281) (EC), 25

T. Markus Funk, Mutual Legal Assistance Treaties and Letters Rogatory: A 

Guide for Judges (Federal Judicial Center 2014), available at http://www.

fjc.gov/public/pdf.nsf/lookup/mlat-lr-guide-funk-fjc-2014.pdf/$file/mlat-lrguide-funk-fjc-2014.pdf, 5, 18, 45

German Federal Data Protection Act (Bundesdatenschutzgesetz) (BDSG) 

(2003) § 43, 27

Kenneth W. Graham, Jr., 23 Fed. Prac. & Proc. Evid. § 5435, n.33 (1st ed. 

1977), 33

Hague Conference on Private International Law, 8

Hague Convention, passim

Hague Convention Applicability Table, 17

Inter-American Convention on the Taking of Evidence Abroad, Organization 

of American States, http://www.oas.org/juridico/english/sigs/b-37.html 

(last visited Mar. 5, 2015), 18

Loi 80-538 du 16 juillet 1980 relative à la communication de documents et 

renseignements d’ordre économique, commercial, industriel, financier ou 

technique à des personnes physiques ou morales étrangères [Law 80-538 
Table of Authorities

119

of July 16, 1980 on the Disclosure of Documents and Information of an 

Economic, Commercial, Industrial, Financial or Technical Nature to 

Physical and Legal Entities], Journal Officiel de la Republique Francaise 

[J.O.] [Official Gazette of France], art. 1 bis (author translation), 27

Model for Letters of Request Recommended for Use in Applying the Hague 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters, Hague Conference on Private International Law 

(1985), http://www.hcch.net/index_en.php?act=publications.details&pid=

3309&dtid=2 (last visited Mar. 5, 2015), 14

Publications: Convention of 18 March 1970 on the Taking of Evidence Abroad in 

Civil or Commercial Matters: Questionnaires & Responses, Hague 

Conference on Private International Law, http://www.hcch.net/

index_en.php?act=publications.details&pid=6043&dtid=33 (last visited 

Mar. 5, 2015), 9

Report on the Work of the Special Commission of April 1989 on the Operation of 

the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial 

and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 

1970 on the Taking of Evidence Abroad in Civil or Commercial Matters,

Hague Conference on Private International Law, Annex ¶ (a) (1989), 

http://www.hcch.net/upload/scrpt89e_20.pdf (last visited Mar. 5, 2015), 

10, 17

Report on the Work of the Special Commission of May 1985 on the Operation of 

the Convention, Hague Conference on Private International Law, § 3(A) 

(1986), http://www.hcch.net/upload/scrpt85e_20.pdf (last visited Mar. 5, 

2015), 9, 10, 17

Report on the Work of the Special Commission on the Operation of the 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters, Hague Conference on Private International Law, § 1 

(1978), http://www.hcch.net/upload/scrpt78e_20.pdf (last visited Mar. 5, 

2015), 10, 17

Restatement (Second) of Conflict of Laws § 139(1) (1969), 35

Restatement (Third) of Foreign Relations Law of the United States (1987), 7, 

20, 22, 28, 29

Tyler B. Robinson, The Extraterritorial Reach of 28 U.S.C. § 1782 in Aid of 

Foreign and International Litigation and Arbitration, 22 Am. Rev. Int’l Arb. 

135 (2011), 46

Signatories and Ratifications: Additional Protocol to the Inter-American 

Convention on the Taking of Evidence Abroad, Organization of American 
Discovery in International Civil Litigation

120

States, http://www.oas.org/juridico/english/sigs/b-51.html (last visited Mar. 

5, 2015), 18

Laura W. Smalley, 71 Am. Jur. Trials 1 (Originally published in 1999), 16

Hans Smit, International Litigation Under the U.S. Code, 65 Colum L. Rev. 

1015, 1021 (1965), 43, 44

Status Table: Convention of 18 March 1970 on the Taking of Evidence Abroad in 

Civil or Commercial Matters, Hague Conference on Private International 

Law, http://www.hcch.net/index_en.php?act=conventions.status&cid=82

(last visited Mar. 5, 2015), 8–9

S.I. Strong, Discovery Under 28 U.S.C. § 1782: Distinguishing International 

Commercial Arbitration and International Investment Arbitration, 1 Stan. J. 

Complex Litig. 295 (2013), 40, 42, 44

Synopsis of Responses to the Questionnaire of May 2008 Relating to the Hague 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or 

Commercial Matters (Evidence Convention), Hague Conference on Private 

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(last visited Mar. 5. 2015), 50

Table Reflecting Applicability of Articles 15, 16, 17, 18 and 23 of the Hague 

Evidence Convention, Hague Conference on Private International Law, May 

2014, http://www.hcch.net/upload/appl-table20e.pdf (last visited Mar. 5, 

2015), 17

The Sedona Conference, https://thesedonaconference.org/ (last visited Mar. 

31, 2015), 26

The Sedona Conference International Principles on Discovery, Disclosure & 

Data Protection, https://thesedonaconference.org/publication/The%20

Sedona%20Conference%C2%AE%20International%20Principles%20on%2

0Discovery%2C%20Disclosure%20%2526%20Data%20Protection (last 

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Treaty on Cooperation between the United States of America and the United 

Mexican States for Mutual Legal Assistance (1987), 18

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United States Response to Questionnaire of May 2008 relating to the Hague 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and 

Commercial Matters (Evidence Convention), Hague Conference on Private 
Table of Authorities

121

International Law, http://www.hcch.net/upload/wop/2008usa20.pdf (last 

visited Mar. 5, 2015), 11

United States Response to Questionnaire of November 2013 relating to the Hague 

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and 

Commercial Matters (Evidence Convention), Hague Conference on Private 

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pdf (last visited Mar. 5, 2015), 11

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judicial/country.html, 2, 21

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12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 

§ 3068.3 (2d ed. 1982), 40

RULES

Fed. R. Civ. P. 16, 3

Fed. R. Civ. P. 26, 3, 4, 17, 23, 24, 49

Fed. R. Civ. P. 28, 16, 18, 19, 20, 24

Fed. R. Civ. P. 30, 6

Fed. R. Civ. P. 34, 6

Fed. R. Civ. P. 37, 7

Fed. R. Civ. P. 44.1, 3

Fed. R. Civ. P. 45, 23, 50

Fed. R. Evid. 501, 33

123

About the Authors

Tim Harkness is a litigation partner at Freshfields Bruckhaus Deringer 

US LLP who represents international clients in complex commercial 

litigation and advises them with regard to U.S.-based risk. His cases 

frequently involve allegations of fraud and breaches of contractual or 

fiduciary duties. Mr. Harkness has represented professional services 

and private equity firms, banks, manufacturers, and media companies 

in civil trials, multidistrict class action litigation, and commercial arbitrations in over fifteen states, in state, federal, and bankruptcy 

courts. He has handled international discovery issues relating to over 

twenty countries outside of the United States, including Malta, Argentina, Brazil, South Africa, China, the Cayman Islands, and the United 

Kingdom. He has also represented clients before the Securities and 

Exchange Commission, federal grand juries, and Congress. Mr. Harkness received his J.D., cum laude, from the University of Michigan, 

where he was Contributing Editor to the Law Review, and his B.A., 

cum laude, from Yale University.

Rahim Moloo is an attorney in the New York office of Gibson, 

Dunn & Crutcher and focuses on international arbitration and related 

litigation. Concurrently, he is on the adjunct faculty at Columbia Law 

School, where he teaches an advanced course on international arbitration. Mr. Moloo is also co-chair of the American Branch of the International Law Association’s Committee on Disputes Involving States. 

Prior to joining Gibson, Dunn, he was a member of the arbitration 

teams at Freshfields Bruckhaus Deringer LLP and White & Case LLP 

in New York and Washington, D.C., respectively, and General Counsel of an international organization. He has also been a visiting fellow 

at the Lauterpacht Center for International Law at the University of 

Cambridge, a senior fellow at the Vale Columbia Center on Sustainable International Investment, and co-chair of the American Society of 

International Law’s Private International Law Interest Group. Mr. 

Moloo is a graduate of both the University of British Columbia and 

NYU schools of law.

Patrick Oh is a commercial litigator with particular experience in 

complex financial disputes, cross-border matters, regulatory compliance, bankruptcy litigation, criminal and civil securities fraud, and 

commercial arbitration. He has represented clients in a broad array of 
Discovery in International Civil Litigation

124

contexts, including before federal and state trial and appellate courts, 

as debtors and creditors in bankruptcy proceedings (including in adversary proceedings and contested matters), before FINRA arbitration 

panels, and in adversarial negotiations. Mr. Oh also has significant experience representing disadvantaged individuals on a pro bono basis. 

He is a graduate of Columbia Law School.

Charline Yim is an associate at Freshfields Bruckhaus Deringer US 

LLP with experience in global investigations, complex civil litigation, 

international arbitration, and white-collar defense. She is also a member of the Freshfields US Pro Bono Committee and has represented 

clients on a pro bono basis in a variety of matters. Prior to joining 

Freshfields, Ms. Yim was a fellow for Judge Theodor Meron and Judge 

Patrick Robinson in the Office of the President at the International 

Criminal Tribunal for the former Yugoslavia. Ms. Yim is a graduate of

Harvard Law School.
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of 

New York 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael J. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of 

Georgia 

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

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