The US imports 50% of the products it sells. Eighty percent of all products recalled are manufactured overseas. In 2015, 17% of the 234 securities class action lawsuits involved foreign defendants. In 2012, 27% of the IP cases filed in nine federal district courts had at least one party residing abroad. In short, a lot of litigation involves overseas defendants and witnesses which means there is a strong need for both service of process and evidence-taking abroad.
Whether your litigation is ultimately successful may turn on whether service of the originating process is properly effected and whether you are able to secure needed evidence located overseas. After 30 years of experience, LLS has compiled ten tips for successful cross border litigation.
1. Plan Ahead
It is never too early to plan your strategy for serving process or taking evidence from foreign defendants and witnesses. Ideally, your strategy for service and evidence will be in its final form at the time the complaint is filed.
In member countries, use of the Hague Service Convention is mandatory per a ruling by the US Supreme Court in Volkswagenwerk AG v. Schlunk. In countries party to the Inter-American Convention on Letters Rogatory and Additional Protocol, service pursuant to that Treaty is not mandatory unless you contemplate trying to enforce your judgment abroad.
2. Get a Certified Translation
Do not allow your documents to be translated by someone in your office or by your client. Many Central Authorities will reject requests for service or requests for evidence if the translation is poor. Furthermore, improper translation is a quashable defect costing extra time and money. LLS can provide certified translations for use in judicial proceedings around the world.
3. Manage the Client’s Expectations
If you will be required to take evidence abroad, it is essential to manage your client’s fee expectations. Fees will vary depending on whether the evidence sought is:
- To be obtained pursuant to the Hague Evidence Convention or pursuant to a Letter Rogatory
- Comprised of documents, testimony, or both
- In need of translation
4. Abandon US-style Discovery Requests
When seeking documents from witnesses outside of the US, it is important to remember that:
- Documents must be requested with specificity
- Documents routinely discoverable in the US may often be protected abroad by privacy laws or blocking statutes
- When requesting documents, you must convince the foreign court that your request is relevant, not overly broad, and should be granted in the interests of justice
5. Know that Depositions Can Be Risky and Expensive
Depositions can be either voluntary or involuntary. The key risk associated with voluntary depositions is that the witness may not appear. On the other hand, involuntary (compulsory) depositions are more expensive and are often taken not by the attorneys involved in the litigation, but by a foreign judge.
Depositions are expensive because:
- In non-English speaking countries, an interpreter will be required.
- Local counsel should be retained. The advice of local counsel is invaluable when drafting the Evidence Request and seeking an Order from the foreign court.
6. The Consular Deposition Trap
In many foreign countries, voluntary depositions have to be taken at the US Embassy or Consulate. Embassies in many smaller countries (e.g., Iceland and Luxemburg) and Consulates in major counties (e.g., Japan) do not have rooms for depositions.
So, if the a deposition is taken outside the Consulate, it may occur in violation of the host county’s laws thus providing opposing counsel grounds to challenge whether a “consular deposition” has taken place.
7. Avoid DIY Forms from the Internet
There is no official form designated as a “Letter of Request” pursuant to the Hague Evidence Convention. Self-described “sample forms” can be found on the internet, but these forms typically list only the “elements” that must be included in the Letter without providing any guidance of how detailed or specific the elements must be.
Attorneys who use these forms often draft their Hague Letter of Request with an eye to convincing the US court to execute the Letter of Request without realizing the goal of the Request is to persuade the receiving court to grant the Request.
Worse, armed with no instruction on how to complete a sample Letter of Request form accessed on the internet, the US attorney will often commit fatal errors in requesting evidence from abroad. For example, a client once prepared an Evidence Request that indicated the US attorney, rather than the forum court judge, was the requesting authority.
8. Only One Witness per Letter of Request
Perhaps, the most common mistake of attorneys who use DIY internet forms for taking evidence abroad is that they request evidence from more than witness in a single letter. This is always a mistake.
When the Central Authority receives a Letter of Request, it forwards it to a trial court that has jurisdiction over the defendant. But if the US attorney has used one Letter of Request to request evidence from three witnesses in or around, for example, the German city of Munich, to which court does the Central Authority forward the Letter of Request if three different courts have jurisdiction over the three witnesses?
The best practice is to draft a Letter of Request for each witness from whom evidence is sought.
9. Letter Rogatory is more than a Letter of Request
To take evidence in a country that is not a member of the Hague Evidence Convention, a Letter Rogatory (“LR”) must be used. Like a Hague Letter of Request, there are no mandatory requirements for a LR. Still, certain language must be included in the LR. Because the LR is transmitted abroad by the US Department of State (DOS), the DOS does mandate the information to be included in the cover letter.
10. Use Expert Litigation Support
Choose an international litigation support company with experience serving overseas so that your documents get to the right place with the right paperwork. The company should be familiar with the rules of civil procedure in the country where service is to be effected or evidence is to be taken. Many countries will allow US attorneys to participate in the taking of evidence –something local counsel may not disclose.
LLS has been retained by many law firms who initially tried the DIY option themselves only to learn months later that service has failed. We invite you to contact us from the start of your foreign litigation for advice on how best to proceed with service and/or evidence-taking abroad. We’ll save you headaches and we’ll save your client money.