The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
In one of our recent posts we discussed how 28 U.S.C. §1782 allows a party to a litigation in a foreign (non-U.S.) country to seek discovery for use in that litigation in a U.S. federal district court.
This post will discuss under what circumstances a litigant in a non-Israeli proceeding can seek discovery in Israel. Specifically, this post will focus on whether a litigant in a U.S. proceeding can seek discovery from non-parties located in Israel.
The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”) allows judicial authorities in one signatory country to obtain evidence located in another signatory country for use in judicial proceedings. Article 1 of the Convention provides that in “civil or commercial matters a judicial authority of a Contracting State may . . . request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.” The procedures of the Hague Convention “are available whenever they will facilitate the gathering of evidence by the means authorized in the Convention.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 541 (1987).
The United States and Israel are parties to the Hague Convention. The U.S. has codified the Hague Convention at 28 U.S.C. §1781 and Israel has codified it in its Judicial Assistance Between Countries Law, 5758-1998 (the “Judicial Assistance Law”) and the rules and regulations promulgated thereunder. Individual American states have also enacted laws to implement the Convention.
Although a “party which seeks the application of the Hague Evidence Convention procedures . . . bears the burden of persuading the trial court of the necessity of” such procedures, that burden “is not great . . . since the ‘Convention procedures are available whenever they will facilitate the gathering of evidence by the means authorized in the Convention.’” Tulip Computers Int’l B.V. v. Dell Computer Corp., 254 F. Supp. 2d 469, 474 (D. Del. 2003) (quoting Societe Nationale, 482 U.S. at 541).
So, to answer our question above, U.S. litigants can, by way of a motion to the trial court, obtain an order directing Israeli courts to collect evidence in Israel. Although the burden of persuasion is on the moving party, this burden is not difficult to overcome.
We now turn to a more practical—although crucial – matter concerning a Hague Convention proceeding.
The instrument by which U.S. courts transfer these cross-border discovery requests are referred to as “letters of request.” Courts are permitted to transmit letters of request to a foreign or international tribunal, officer, or agency pursuant to 28 U.S.C. § 1781(b)(2) (permitting “the transmittal of a letter rogatory or request directly from a tribunal in the United States to [a] foreign or international tribunal, officer, or agency to whom it is addressed and its return in the same manner.”).
Although the letter of request is issued by the court, it is usually carefully drafted by counsel for the party seeking the foreign discovery and is filed as an exhibit to the motion to the court. The letter of request is perhaps the most important document in this procedure for it advises the foreign court (i.e. the Israeli court) of the scope of the discovery and the information sought. A letter of request typically includes the essential information of the parties involved and those who will undergo depositions, as well as the issues that will be raised in the deposition and the types of documents requested. As a drafting tip, counsel may avail themselves of the model letter of request to ensure that they have covered all necessary requirements. The model should only be used as a guide, however, and certainly does not replace the scrutinizing eyes of counsel.
Also, counsel for the moving party should consult with Israeli counsel at the onset of commencing a Hague Convention proceeding. Israeli counsel who are experienced in the Hague Convention should provide assistance in drafting the letter of request. In addition, Israeli counsel can and should ensure that the Israeli courts and other relevant administrative bodies receive and process the letter of request and generally stay on top of things. Lastly, Israeli counsel can also serve as the representatives who actually conduct the discover, e.g. the depositions. [Judicial Assistance Law, §16(b)]. This last option is attractive because it helps attenuate the extra costs and expenses in having foreign counsel come to Israel to conduct a deposition (although, a video-based deposition may also be available).
The Hague Convention serves as an important and useful discovery tool which litigants can utilize to assist in their lawsuits. If done correctly, it is a fast and relatively cost-effective way to get the information sought to prove your claim or support your defense.