Hague Convention (Evidence)- Some New (and older) Insights
Globalization has long become a fact that all professions need to cope with. Law is certainly no different. As we routinely point out, cross-border discovery is becoming an essential tool for litigators across the globe.
As our subscribers know, Israel is a signatory to the The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”). Israel has codified it in its Judicial Assistance Between Countries Law, 5758-1998 (the “Judicial Assistance Law”) and the rules and regulations promulgated thereunder (e.g. the "Regulations Implementing the 1970 Hague Convention (Evidence)- 5737-1977").
The Hague Convention allows foreign litigants to seek evidence in Israel. See our previous post on this matter.
Here are some practitioner tips (some old and some new) that may assist the international attorney in navigating this area of law.
1. Timing is everything: Always consider the length of time a Hague Convention procedure may take. While Hague procedures can be be fast-tracked if done properly, they also may take some time. This depends on a variety of factors, including if and how the witnesses oppose the discover. Better too early than too late.
2. Depositions, Depositions, Depositions: For the "umpteenth" time, in U.S. Court v. Shaul, Chikur Din 42074-02-18 (Mag. Ct. Jer. Aug. 4. 2019), the Jerusalem Magistrate Court dismissed the witnesses' argument that the Judicial Assistance Law does not allow for depositions. This is incorrect, the court pointed out. While depositions are not allowed under Israeli discovery, they are allowed under the Hague Convention and the Judicial Assistance Law. Period.
3. Privileged Information and choice of law- Although depositions are allowed under the Judicial Assistance Law, that does not automatically lead to the conclusion that foreign law and practice applies to the substance of the Hague procedure. In two earlier decisions, Israeli courts emphasized that when assessing whether a non-party Israeli must produce privileged documents and the scope of such production -- e.g., documents containing trade secrets -- Israeli law would apply. U.S. Court v. Mobileye Technologies, Ltd., Chikur Din, 13721-02-14 (Mag. Ct. Jer., Sept. 14, 2014) (also issued by J. Ohad Gordan); Judicial Authority in the State of Maryland v. MacroCure, Ltd., Chikur Din, 45042-07-14 (Mag. Ct. Rishon L'tzion, Jan. 13, 2016).
4. Who are the formal parties to a Hague proceeding?- The simple and straight forward answer is that there are two parties: one, the foreign court that issued the letter of request and, two, the witness whom discovery is sought. In other words, the actual parties in the foreign proceeding (i.e. the plaintiff and defendant) are not official parties and they are not automatically entitled to participate in the proceeding. However, in practice, the plaintiffs and defendants in the foreign proceeding, in fact, participate in the Hague proceeding, via counsel. To do so, the parties need to engage local counsel to make an appearance and motion the court to allow them to file papers. This came out explicitly in U.S. Court v. Mobileye Technologies, Ltd., where J. Gordan (who routinely adjudicates Judicial Assistance Law actions) noted that he gave leave for counsel for the foreign parties to participate.