Q: I have filed a Hague Evidence Request in a civil proceeding currently pending in US court that seeks to compel testimony from a non-party witness who is overseas, under Chapter 1 of the Convention. I want to have documents shown to the witness during oral testimony to prompt his memory.
Is it necessary to include these documents as attachments to my Hague Request? Will it be necessary to have the documents translated into a foreign language even though the witness is fluent in English?
A: Although your questions appear straightforward, like so many of the issues associated with overseas service of process and evidence taking, the answers are complex and fairly nuanced, and vary among countries (“Contracting States”) that are signatory to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (the “Hague Evidence Convention”).
This is because the Convention requires the Hague Request to defer to the laws and procedural norms of the State in which they are to be executed (the “Destination State”). Authorities in the State of origin (the “Requesting State”) may, however, request that authorities in the Destination State follow a special method or procedure pursuant to Article 9(2) of the Convention. The executing authority is then obligated by the terms of the Convention to comply unless the request is incompatible with its own domestic law or internal practice.
Additionally, there may be further flexibility among local jurisdictions within the Destination State. Legal Language Services can help you to ascertain the best means for taking testimony given the specific circumstances of your case.
Common Law or Civil Law?
One critical question to ask is whether the evidence is taken in a common law jurisdiction such as the United Kingdom or Australia, or in a civil law jurisdiction such as France or Germany. In common law countries, the parties will be permitted to examine and cross-examine the witness, whereas in civil law countries, it is usually the judge that conducts the oral examination and presents documents to the witness.
If the parties are allowed in a civil law jurisdiction to ask questions at all, it will be on a very limited basis, and only as directed by the court. A civil law court is much more likely to require all documents to be translated than a common law court.
The legal systems in common law jurisdictions typically trace their origins to England, making English the language commonly used in their legal proceedings. Also, a common law court is generally more tolerant to the parties’ presentation of a large number of documents to a witness than would a civil law court.
Finally, if there is a dispute among the parties as to the proper scope of discovery, the civil law court is likely to award attorney’s fees and incidental costs to the winning party on the issue.
Three Different Approaches
With some variation, there are basically three approaches among the Destination States on the question of whether documents must be attached to a Hague Request before the documents will be shown to a witness during oral examination. Civil law countries are more likely to fall under the first, most restrictive approach, while common law countries are more likely to fall under the last two, less restrictive approaches. The three approaches are as follows:
1) The Destination State may require that every document that will be shown to a witness be attached to the Hague Request. This is the approach of the Czech Republic, Germany, Greece, China (Special Administrative Region of Hong Kong only), Latvia, Luxembourg, Mexico, Monaco, the Netherlands, Poland, Portugal, Romania, Slovakia and Switzerland.
Although the executing court may prevent the presentation of a new document to the witness, in practice it has been Legal Language’s experience that courts realize months can transpire between the date of the Request and the date of the examination, during which additional documents are identified.
Provided the court sees that a good faith effort was made to include all needed documents with the Hague Request, the court will usually allow additional documents to be included either: (a) by motion filed by a local attorney, or (b) by order granting permission, which has been issued by the requesting court in the US. This can be a costly, time consuming and uncertain process, so it is important in these countries to make every reasonable effort to ensure that all needed documents are included with the Hague Request.
It has also been our experience that different courts within the same country may handle the same issue in substantially different ways. Therefore, it is helpful to inquire of LLS staff about our experience in a particular country.
2) The Destination State may not require the documents to be attached to the Hague Request, but will require pre-approval by the court presiding over the oral examination before the documents can be shown to the witness.
This is the approach of Australia, Finland, France, Israel, South Africa and Ukraine. In these countries LLS recommends that you attach to the Hague Request any documents that you want shown to the witness. In this way, the documents become part of the court’s original file and you reduce the likelihood that the oral examination will be delayed while the judge examines your documents.
This group of countries provides a tremendous advantage to you over countries that require attachment of the documents to the Hague Request — you have the option of providing additional documents as they are identified without first filing a motion with the foreign executing court or seeking an additional order from your US court.
3) The Destination State does not expressly require documents to be attached to the Hague Request, and does not require pre-approval from the court. This is the approach in Finland, Lithuania, Sweden and the United Kingdom.
In our experience, reliance on this apparent laissez-faire approach to presentation of documents to witnesses during oral examination can be problematic, particularly if the documents in question are critical to the development of your case. Although there is no pre-screening by the examining court, the other party may have the right to object on the grounds that the document is not admissible under the local laws. Therefore, we recommend having the documents examined by a local attorney in the foreign country.
We have compared the official positions taken by the various Contracting States with respect to these matters with our actual experience taking evidence in those States. Unfortunately, in some instances we found the official positions for individual Contracting States to be at odds with our actual experience within the country.
In our experience, the exact procedures by which a Hague Request will be executed are dependent on the personality and experience of the judge, and the Destination State will defer to its judges concerning the implementation of the Convention. LLS has extensive experience working through these discovery issues in both Hague and non-Hague countries and can help you avoid embarrassing and costly mistakes.
Keep Documents to a Minimum
Also, do not expect a warm welcome if you plan to bring Bankers Boxes full of documents to an oral examination. Think in terms of handfuls or scores of documents rather than Bankers Boxes and you will find a much more receptive court in the foreign jurisdiction. Obviously, this will also save your client a tremendous amount of money in translation costs in jurisdictions where it is necessary to translate documents into a foreign language.
This balancing act can be a particular challenge in intellectual property litigation, which tends to involve lots of documents, patent history and prior art.
In every instance, we find it is extremely helpful if the documents are presented to the court in a well-organized binder, with everything cross-indexed to the Hague Request. LLS can assist with all of your cataloging needs. If it is absolutely necessary to bring a large volume of documents to an oral examination, we can help you frame your arguments to increase the likelihood that the foreign court will appreciate that these documents are essential to your case and rule in your favor.
Additionally, the foreign authority may grant authority for us to burn your documents onto a searchable CD to make the documents more user-friendly.
Is Translation Necessary?
This brings us to your second question. Will it be necessary to have the documents translated into a foreign language even though the witness is fluent in English?
Unfortunately, if the witness is to be examined in a country where the Hague Request must be translated into a foreign language, and the hearing will take place in a foreign language, you should anticipate it will also be necessary to translate any document you plan to show to the witness. This is particularly true in civil law countries, where it is the judge that conducts the examination and presents documents to the witness.
However, we have also seen the issue go the other way. For example, in the Netherlands, where Dutch is the official language, we have seen judges conduct the entire proceeding in English. Conversely, another court in the Netherlands may conduct the entire proceeding in Dutch and required all of the documents to be translated into Dutch.
An exhaustive analysis of the question on a country-by-country basis is beyond the scope of this answer. Please contact LLS and we will be happy to address the specifics of your case, and help determine whether or not complete translations will be required.
If translations are needed, LLS offers full, reliable certified translation services throughout the world. We also offer interpreting services, including simultaneous interpreting and interpreting in non-US venues, to assist with oral examinations involving witnesses that are examined in another language.