Post-Judgment Discovery and the Hague Evidence Convention
You or your client just won a multi-million dollar award after a long jury trial. Naturally, it is now time to enforce the judgment and collect what is due. But there is a catch. You do not know where the judgment debtor has assets. You heard through the grapevine that the debtor may have significant assets in Israel, but you are not one-hundred percent sure. What are your options? Is it possible to "discover" whether your hunch is correct, without commencing enforcement proceedings in Israel? In other words, can the creditor commence Hague Evidence Proceeding in Israel for purposes of investigating the debtors assets in Israel?
The short answer is "no"- Israeli courts are not likely to execute a post-judgment Hague Evidence Convention Letter of Request. At least two reported Israeli decisions have specifically refused to enforce such requests.
In The Judicial Authority of Ohio v. Mann, Chikur Din 18658-01-16 (Jer. Mag. Ct., March 18, 2016), the trial court ruled that a Letter of Request which seeks post-judgment discovery is, in fact, an "enforcement proceeding." Section 2(b) of Israel's Judicial Assistance Between Countries Law, 5758-1998 specifically excludes such relief. Therefore, the Mann court denied the letter. The Mann court also found that Article 1 of the Hague Convention also excludes post-judgment discover relief as it states that the Convention applies to "judicial proceedings, commenced or contemplated." Post-judgment discovery naturally occurs after a judgment is rendered, not while it is being "commenced or contemplated."
The Tel-Aviv Magistrate Court arrived at the same conclusion back in 2005 in Matav, et. al. v. Warner Bros., Chikur Din 1/05 (Tel-Aviv Mag. Ct., July 28, 2005). In that case, the Israeli court refused to execute a letter or request issued by a California court which sought post-judgment discovery.
U.S courts obviously disagree with their Israeli counterparts and appear to issue letters of request for post-judgment discovery under the Hague Convention. Indeed, the Matav, et. al. v. Warner Bros case cited above, concerned a letter of request issued by a U.S. court that specifically made a finding that the Convention applied to post-judgment discovery. Warner Bros. Int'l Television Distribution v. Golden Channels & Co., 2005 WL 8162980 (C.D. Cal. Mar. 14, 2005).
However, that won't get the judgement creditor very far in Israel. Israeli courts disagree with their U.S. counterparts. This matter has not yet reached Israel's Supreme Court, so the law could always change in the future. However, as of now, the more appropriate mechanism to enforce and otherwise seek post-judgment relief in Israel, including discovery, would be under Israel's Enforcement of Foreign Judgments Law of 1958 (See our past post on this).
For more on the Hague Evidence Convention, see our Guide for the Practitioner.