Legal Language Services (LLS) has, for years, assisted overseas attorneys in effecting service in the United States and abroad. Currently, we are assisting an overseas law firm obtain evidence from a US citizen. This made us realize just how little we and others have published on how evidence is taken from US witnesses (including corporations) in the course of international litigation.
Read on for an overview of how overseas attorneys take evidence from US witnesses.
Two Different Ways to Take Evidence from US Witnesses
Viewed broadly, there are two mechanisms by which overseas attorneys may take evidence from a US witness.
Method 1: Letter Rogatory
The first method is a Letter Rogatory, i.e., a formal request from an overseas court to a US court for judicial assistance in gathering evidence. This is the method that must be used by courts in countries that are not signatories to the Hague Evidence Convention (HEC). If the overseas court is located in a non-English speaking country, the Letter Rogatory will need to be translated into English.
The key disadvantage of this method is that the Letter Rogatory is transmitted to the appropriate court in the US via a diplomatic pouch. The need to involve both overseas and American diplomats means that obtaining evidence by this method will be much slower than if the evidence is taken pursuant to the HEC.
Method 2: Hague Evidence Convention
The second method for taking evidence from US witnesses is pursuant to the HEC. The HEC is a great tool that allows overseas attorneys to take evidence from US witnesses – if those witnesses cooperate.
Article 17 of the HEC states that “a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State.” In its declaration to the HEC, the US has stated that “[n]o prior permission is required” to take evidence if the evidence is taken without compulsion. This means that if a US witness is willing to meet an overseas attorney (say in a hotel room), and understands that they are free to leave at any time and that they are not compelled to answer any questions they do not wish to, the overseas attorney simply needs to make the necessary reservations – no other formalities are required.
The chief risk of taking a voluntary deposition from a US witness is that the witness could get “cold feet” and decide not show up for the deposition.
What To Do When the Witness Will Not Cooperate
If the US witness will not cooperate, the basic steps to take evidence under the HEC are as follows:
1. In the overseas court:
- The attorney will need to draft a Letter of Request (LOR)
- The overseas court must execute the LOR
- For non-English speaking countries, the LOR must then be translated into English
2. The LOR (and its translation, if any) must be transmitted to the appropriate court in the US via either
- The US Central Authority; OR
- By hiring US local counsel to file an application for the LOR’s execution under 28 USC 1782
3. When the LOR arrives in the appropriate US court, the court will hold a hearing.
- During this hearing the US witness is given an opportunity to explain why they should not be compelled to turn over the evidence requested in the LOR.
- Should the witness argue that they should not be compelled to produce evidence, the US court will weigh that argument against the arguments advanced in the LOR concerning why the attorney is entitled to the evidence.
- In making this determination, the key US case that will guide the court is Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004).
4. The US court will then set a date for the LOR to be “executed.”
- The date of execution is the date the attorney obtains their documents or deposition.
From the time the LOR arrives in the US, the average time for the LOR to be executed is approximately 10 months. If local counsel files a § 1782 motion for the LOR’s execution, the time to execute can be less.
How LLS Can Help
If you are an overseas attorney seeking evidence from a US witness, LLS can assist you with:
- Drafting a Letter Rogatory or LOR
- Vetting US counsel
- Researching US law
- Arranging verbatim transcription and/or videography
- Selecting a venue for a deposition
For more information, and a free price quote, contact us today.
 United States of America – Central Authority (Art. 2) and practical information; https://www.hcch.net/en/states/authorities/details3/?aid=528.
 This statute is to be applied broadly. Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995). Under § 1782, it is even possible for foreign courts to obtain pre-trial discovery. See CertainFunds, Accounts and/or Inv. Vehicles Managed by Affiliates of Fortress Inv. Grp. LLC v. KPMG, LLP, 2d Cir., No. 14-2838, 8/20/15; Mees v. Buiter, 2d Cir., No. 14-1866, 7/17/15. However, whether § 1782 can be used to obtain discovery in overseas arbitration litigation is controversial. See Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012); El Paso Corp. v. La Comisión Ejecutiva Hidroeléctrica Del Rio Lempa, , 341 F. App’x 31 (5th Cir. 2009).
 The four Intel factors are: (1) whether the documents or testimony sought are within the non-US tribunal’s jurisdictional reach; (2) the nature of the non-US tribunal (e.g., the character of the proceeding abroad; and whether reciprocity is available); (3) whether the US court is being used in an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country; and (4) whether the request for evidence represents unduly intrusive or burdensome demands. See also In re Microsoft Corp., 428 F. Supp. 2d 188, 194 (S.D.N.Y. 2006).