Posted: 29/07/2022
In the age of the global economy and the inevitable accompanying cross-border disputes, litigants in the United States increasingly face the question of how they can obtain evidence for use in US proceedings from individuals and entities based in foreign jurisdictions. In particular, due to the substantial levels of trade and business between the two regions, US corporations can often find that they need access to documents or information held by individuals or entities based in the United Kingdom. Please note that references to the UK refer to the legal jurisdiction of England and Wales.
The starting point should always be to consider asking the relevant individual/entity whether they would be willing to voluntarily provide the documents and information. If they are willing to co-operate, it will be a simple matter of the lawyers for the respective parties agreeing terms for the provision of evidence. The parties will need to ensure that all procedures undertaken satisfy the requirements of both the local court and the rules in the UK. They will also need to consider how they will address the issue of any costs and expenses arising out of the provision of the evidence.
Of course, in the context of a commercial dispute, it is entirely possible that a party or non-party to the proceedings will be uncooperative. So what steps should you take when you wish to compel the production of documents or the taking of a deposition for use in US proceedings, from an individual or entity based in the UK?
This situation is governed by the Convention on the Taking of Evidence Abroad in Civil or Commercial matters (Hague Evidence Convention), to which the US and UK are both signatories.
The procedure is initiated by the US court in which the proceedings are taking place. The US court will make a request to the Senior Master of the High Court of England and Wales (as the designated central authority of the signatory state where the evidence is located), via a ‘letter of request’, that the English court takes evidence, and transmits that evidence back to the foreign (ie US) court for use in the foreign judicial proceedings.
The letter of request must contain certain information such as:
Where appropriate, the letter of request should also specify:
The English court derives its authority to act in aid of a foreign court from the Evidence (Proceedings in Other Jurisdictions) Act 1975 (EPOJA). Consequently, any letter of request received by the English court will likely only be complied with if the court is satisfied that the following conditions under the EPOJA are met:
An application for an order under the EPOJA must be made to the High Court of England and Wales, be supported by written evidence, and be accompanied by a copy of the letter of request from the foreign court which gave rise to the application. The application may be made without notice to the UK based party from which the evidence is sought.
If an application is made that satisfies the two conditions above, the English court has the discretion to make an order to give effect to the application for assistance. Such an order may direct the UK based party to produce specific documents or order the examination of a witness (a deposition). If the order(s) granted are not complied with, they can be enforced through the English court. Non-compliance by the UK based party may therefore result in cost sanctions against it or other enforcement measures such as contempt of court proceedings.
The English courts are very strict regarding the scope of a letter of request. A request cannot be wide-ranging, investigatory in nature, or seen to be a ‘fishing expedition’. If documentary evidence is sought, those documents must be clearly identified. Either individual documents or a specific, clearly identified category of documents must be named. Furthermore, the court must be satisfied that the documents actually exist; the mere suspicion or suggestion that they may will not suffice.
The English court rules on the disclosure of documents are very restrictive in comparison to the equivalent discovery rules in the US. The English courts will not execute a letter of request where the evidence sought is not of the type permitted by the English rules of disclosure, or where it is impossible or impractical for the requested party to provide the documents or information. For example, an order will not be made against a non-party to the US proceedings requiring them to state what relevant documents they have or had in their possession, custody and control. Further, the court will only require specific documents to be disclosed which are adequately particularised in the letter of request.
If the English court orders an examination of a witness, the court may specify that this evidence be taken before any fit and proper person nominated by the party applying for the order, or by an examiner of the court. Usually, the deposition will take place in local (ie UK) law firm offices, be recorded, and the questioning will be undertaken by a US lawyer qualified in the jurisdiction where the case originated. It is common for English solicitors to also attend to ensure that all applicable English procedural rules are followed.
Witnesses subject to an examination order will be afforded the same protections under legal professional privilege as would be available to them under English law or the applicable US federal and state laws.
When the deposition is completed, the examiner will send a copy to the Senior Master of the High Court of England and Wales, who will make the appropriate arrangements to send it back to the relevant US federal or state court.
There are no time limits specified in either the Hague Evidence Convention or the English Civil Procedure Rules for any of the processes detailed above. However, the Hague Evidence Convention indicates that letters of request ‘shall be executed expeditiously’.
Normally, an application for production of documents or the examination of a witness under the EPOJA will be made without notice to the party in question (thereby expediting the process). However, making the application without notice does carry the risk that the party subject to the order can later take steps to challenge it and potentially have it set aside.
As soon as a party to US court proceedings realises that evidence held by a UK based individual or entity will be key to their case, they should instruct local English solicitors without delay. Timely steps can then be taken to prepare any letters of request and appropriate applications. This can be crucial to a case, to preserve the evidence, and to avoid falling foul of any procedural and discovery deadlines.
A previous version of this article was published in the International Bar Association International Litigation News in May 2018. It was subsequently updated in June 2022. This article is intended to provide a general summary of the law in this area rather than comprehensive guidance or legal advice. Legal advice should be sought in relation to specific circumstances. The law and practice in this note is stated as at June 2022.
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