Civil Litigation Legal Topics

6 Steps to Take Before Traveling into the World of Foreign Discovery

In our ever-globalizing world, you’ll sometimes need to seek discovery evidence in foreign countries to use in a California civil case. Here are some practical steps to take before embarking on a journey for discovery in foreign lands.

The need to obtain foreign discovery for use in California proceedings can come up for a variety of reasons, including that a party lives outside the United States, the transaction occurred abroad, or third party witnesses or documents are in a foreign country.

When seeking discovery abroad, you’ll need to consider not only the general principles applicable to discovery in California (or possibly federal courts) but also the special requirements of international agreements to which the United States is a party; the laws, procedures, and customs of the foreign jurisdiction in which the evidence is located; and the significant practical problems of proceeding in a foreign jurisdiction.

Obviously foreign discovery can be quite complicated and potentially more trouble (and expense) than the evidence is worth.

So, when you’re considering whether to seek discovery of evidence located abroad, take these practical steps:

  1. Know what evidence you’re seeking. Determine as precisely as possible the nature, location, and substantive content of evidence you’re seeking. If possible, interview any prospective witnesses by telephone or in person before trying to get their depositions.
  2. Make sure the evidence is unavailable in the U.S. Before seeking documents located abroad or the testimony of witnesses in foreign countries, verify that copies of the documents aren’t available in the United States. For example, pertinent corporate records may be found in the possession of a parent, subsidiary, affiliate, officer, or employee of a foreign corporation.
  3. Try to narrow the focus of foreign discovery. You can narrow the focus of any necessary foreign discovery by conducting discovery in the United States and by informally obtaining information from abroad.
  4. Determine whether Hague Evidence Convention or another treaty applies. If you decide that some foreign discovery is essential and you know where the evidence is, you need to ascertain whether the Hague Evidence Convention or any other treaty or convention governs the scope or manner of discovery. If a treaty applies, choose the permissible discovery method that’s most likely to yield prompt, responsive results. If no treaty applies, determine from the State Department, embassy sources, or foreign local counsel whether letters rogatory or depositions on notice or commission are available.
  5. Evaluate the costs and benefits of foreign discovery. Estimate the expense of obtaining the evidence and the time required to obtain it and balance those costs against the benefits you’ll get from the evidence. If the benefits outweigh the costs, schedule foreign discovery sufficiently before trial to ensure that the you can successfully procure the evidence.
  6. Consult the trial judge and retain local counsel. If your case has been assigned to a judge for all purposes, at the first case management conference or on a noticed request for an ex parte hearing before the trial judge, raise the need for discovery in a foreign jurisdiction and suggest procedures and possible orders as to the conduct of the foreign discovery. Also consider retaining an attorney in the foreign country (i.e., local counsel) to provide advice on the particular requirements of foreign law and to make necessary arrangements with foreign witnesses and government authorities.

For everything you need to know about discovery in other countries, including a handy checklist of procedures for seeking discovery abroad, turn to CEB’s California Civil Discovery Practice, chap 13.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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