12 Rules for Obtaining Evidence from Abroad
| Author | Glenn P. Hendrix and J. Tucker Barr |
| Pages | 127-160 |
27
A deposition in Havana for use in an American lawsuit? Not likely in today’s
Cuba, perhaps. But when evidence was needed f rom Cuban wit nesses almost
200 years ago, a federa l court in Pennsylvan ia found a way to get the testimony.
In 86, the federal district cour t of Pennsylvan ia considered a case t hat
turned on the place of manufactu re of 97 hogsheads of rum. The United States
had seized the rum and the ship t hat carried it for violating a prohibition on
imports from Britain or its colonies. The plaintiff claimed ownership of the rum
and alleged it to be of lega l Cuban orig in. A “number of witnesses” were exam-
ined by the court, “all or most of whom professed themselves to be well-
acquainted with the flavor a nd strength of rum made in t he British West Indies.”
The testimony fa iled to resolve the issue, however, as the witnesses were “nearly
equally div ided, one-half pronouncing the rum to be of British origin, the other
half declaring a different opin ion; and the latter . . . relied for their suppor t not
only upon the f lavor, but a lso upon the strength of the s pirits.”
In an effort to break the impasse, the court determined to seek testimony
from other (perhaps more sober) witnes ses in Cuba. For that purpose, the dis trict
court issued a letter to a civil court i n Havana (termed a letter rogatory) request-
ing that
in furtherance of justice, you will, by the proper a nd usual process of
your court, cause such witness or witnesses . . . to appear before you,
.. . at a precise time and place by you to be fixed, and there to answer
on their oaths and affirmations, to the several interrogatories hereunto
annexed; and that you will cause their depositions to be committed to
writin g, and returned to us.
CHAPTER 11
12 Rules for Obtaining Evidence
from Abroad
Glenn P. Hendrix and J. Tucker Barr
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28 CHAPTER
The Cuban authoritie s responded in due course with “dep ositions of sundry
witnesses . . . who swear most positively” that the r um was manufactured in
Havana. The depositions did not satisfy the evidentiary standards of American
law, but the court admitted them i n any event, observing that “the e nds of justice
seem to require a departure, in some degree, from the ordinar y rules of
evidence.” In obtaining evidence through a foreign court in th is manner, the
American judg e was following a procedure that, by some accounts, d ates back to
the time of Edwar dI in the 3th century.2
In today’s global economy, the need to take evidence overse as for use in legal
proceedings in the United States arises in situations no less unique than in the
Nelson case, but w ith much greater frequency. This c hapter outlines 2 basic ru les
for obtaini ng evidence from abroad for use in federa l courts.
HRULE 1: NEVER UNDERESTIMATE FOREIGN FEAR AND
LOATHING OF AMERICAN DISCOVERY PRACTICES
Many aspects of American civil litigation arouse antipathy outside the United
States—ni ne- and ten-figure pun itive damage awards, conting ent legal fees, civil
jury tr ials, liberal cla ss-action statutes, and ever-evolvi ng theories of tort liabil ity.
Yet perhaps no aspect of U.S. civil litigation has given rise to so much fr iction
abroad as American- style discovery.
To some extent, discovery is sing led out because the gathering of evidence i n
a foreign countr y, unlike, say, “runaway” juries, is something in which the for-
eign countr y has a say. Thus, antagonism toward “out of control” l itigation in the
United States tends to be reflected i n efforts to draw the line at ex tension of dis-
covery beyond the boundaries of this country. In fact, several foreign countries
have gone so far as to enact so-called blocking statutes3 that establish civ il and
penal sanct ions for compliance with certa in American discovery or ders.
Distrust of American discovery also reflects fundamental d ifferences
between the common law and civil law trad itions with respect to the respective
roles of the judge and the parties’ advocates. Unl ike common law judges, who
essentially referee an adversar ial contest between competing lawyers, judges in
most civil law countries are directly responsible for taking the in itiative in
. Nelson v. United States, 7 F. Cas. 340 (Cir. Ct. D. Pa. 86). Despite ad mitting the
Havana deposition s into evidence, the court conclud ed that the rum orig inated in the
British West Indies , rather than in the Spa nish Caribbean, a nd was subject to forfeiture.
Among other sus picious circums tances concerning t he shipment, the court was d is-
turbed by omi ssions in the ship’s logbook, for wh ich the ship’s mate offered the ex plana-
tion “that the weathe r was so cold as to prevent him from w riting.” The court obser ved
that it “would have been less a g round of suspicion if no r eason had been assigned t han
to offer one so obviously u ntrue and ridic ulous.”
2. Mart in v. People, 898 WL 2437 (Ill. App. 898).
3. Blocki ng statutes “prohibit[ ] the disclosure, copy ing, inspection , or removal of docu-
ments located in t he territory of the enact ing state in complia nce with orders of foreign
authorities.” R (T) F R L U
S § 442, R ’ N 4 (987).
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2 Rules for Obtaining Evidence f rom Abroad 29
developing evidence necessary to decide the case.4 Thus, part y-initiated discov-
ery address ed directly to a foreign par ty may come across as an attempt to usu rp
a judicial function. Also, civil law systems do not typica lly recogn ize distinct
“pretrial ” and “trial” phase s in civil litigation . Since cases are decided by a judge,
rather than by a jury, civil proceedings tend not to culminate in a “trial ” in the
sense of a single, concent rated event in which jurors fr om the community gather
to hear testimony, consider evidence, and render a verdict. Rather, the typica l
civil proceed ing in a civil law count ry consists of a series of meeti ngs and written
communications between attorneys and the judge, with evidence, testi mony,
motions, and rul ings presented i n installments.5 Pretrial discovery, whereby
each side is af forded a preview of the other’s proof in order to prepare for trial, i s
perhaps less essential to the civil law system of trial by instal lment than it is to
the common law system in wh ich the “trial” con stitutes a culmin ating event.6
Indeed, the concept of “pretrial” discovery is so alien to many legal systems
that civil law jurists somet imes assume that “pretria l” means “before the com-
mencement of the action.”7 For instance, i n a commentary on the Hague Conven-
tion on the Taking of Evidence Abroad in Civil or Com mercial Matters (the
Hague Evidence Convention), a staff attorney for the Russian High Commercial
Court declared t hat pretrial discovery enables a par ty to “obtain, even before the
institut ion of le gal proceedings, access to docu ments at the disposal of the oppos-
ing party for preparation of the complaint and for future legal proceed ings.”8
Likewise, a Be lgian legal scholar descr ibed American discovery a s follows:
4. See K-C H, I D C L: A C -
S D C C P (2003). In Ger many,
for example, a lawyer m ay nominate witnesses for t he court to examine, “ [b]ut the law-
yer stops at nominat ing; virtua lly never will he have occa sion for out-of-court contact
with a witne ss. Not only would such contact be a ser ious ethical breach, it wou ld be self-
defeating ” because the court would quest ion the reliabilit y of a witness who had previ-
ously disc ussed the case with cou nsel. John H. Langb ein, The German A dvantage in Civil
Procedure, 52 U. C. L. R . 823, 82 4 (985).
5. J H. M , T C L T 2 (2d ed. 985).
6. Geoff rey C. Hazard, Dis covery and the Role of the Judge in Civ il Law Jurisdictio ns, 73
N D L. R. 07 (998). B ut see H, supra note 4, at 74 –80 (noting that t here
is a trend in some c ivil countries toward g reater concentration of the proc eedings and
greater need for di scovery by litigants). Certa in civil law countr ies, including Ger many
and Japan, have recent ly introduced certa in elements of discovery i nto their procedure
(albeit not nearly to a level that appro aches U.S. discovery pract ice). See, e.g., Astrid
Stadler, The Mult iple Roles of Judges and Attor neys in Modern Civil Li tigation, 27 H
I’ C. L. R. 55 (2003); Stephen N. Subrin, Discov ery in Global Perspec tive: Are We
Nuts?, 52 DP L. R. 299, 306 (2002).
7. See Resp onse of the United States of Amer ica to Questionnair e on the 970 Hague
Convention on Taking of Evide nce Abroad in Civil or Commerc ial Matters, ¶ 6, availabl e
at http://tiny.cc/miv2x (noting th at some nations “may have made a reservation u nder
Article 2 3 [of t he Hague Evidence Convention] as a result of con fusion with the ter m
‘pretrial ’ when used in conjunction w ith the U.S. judicial syste m, and have erroneously
assumed that it me ant prior to the initiat ion of a judicial proceedi ng”).
8. V.V. St a r zh e n et s k i i , Komm entarii k Gaagskoi Ko nventsii 1970 goda o poluchenii z a granit-
sei dokazatel’stv po g razhdanskim ili torgov ym delam [Commentary on th e Convention on the
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