Cross-Border Discovery without the Hague

The Hague Evidence 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.” For more on this, click here.

In a recent decision, an Israeli bankruptcy court reminded us that countries that are not signatories to the Hague Evidence Convention may still file requests for the collection of evidence in Israel under Israel's Judicial Assistance Between Countries Law, 5758-1998 (“Judicial Assistance Law”). In other words, not being a party to the Hague Evidence Convention does not foreclose the possibility to collect evidence in Israel from abroad. For example, in Dayan, et al. v. Invop, Ltd., Liq. Act. 65524-02-18 (Central Dist. Ct. June 10, 2020), a Canadian court filed a request with an Israeli court to receive various documents in the possession on an Israeli company and which were relevant to a lawsuit pending in Canada. The Israeli court found that the Judicial Assistance Law allows non-contracting parties (like Canada) to apply for the collection of evidence in Israel. As the court correctly pointed out, the purpose of Judicial Assistance Law is to assist foreign courts as much as possible pursuant and in accordance with the principles of comity.

This shouldn't necessarily come as a surprise. Indeed, the original 1997 Knesset (Israeli Parliament) bill for the Judicial Assistance Law specifically states that one of the main pillars of the law is that it makes international judicial assistance independent of the existence of an agreement.

The Judicial Assistance Law provides in section 13 that any international agreements that regulate cross-border discovery (and any regulations promulgated thereunder) would supersede the provisions of the Judicial Assistance Law. In other words, the law itself explicitly realizes that countries need not be a member or signatory to an international agreement as a precondition to receiving assistance.

In short, if a letter of request is issued by a Hague Evidence Convention contracting party, the request would be processed under both the Judicial Assistance Law and the Regulations for Implementing the Hague Convention of 1970 (Taking of Evidence), 5737-1977 (the "Hague Implementation Regulations"). Should these two bodies of law contradict, the latter would control. If the request is issued by a non-contracting country, it would be processed and adjudicated exclusively under the Judicial Assistance Law.

By the way, the Israeli court in Dayan denied the application on the ground that it was over-reaching, over-invasive and sought irrelevant and privileged/private information. But that is for a different post...


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