Introduction and Scope of Guide
Globalization has long become a fact that all professions need to cope with. Law is certainly no different. As such, cross-border discovery is becoming an essential tool for litigators across the globe. In this “Guide to the Perplexed”, we organized the process and procedure of one such cross-border discover method- the so-called “Letter of Request” pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”).
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).
A letter of request is simply a request by a “domestic court to a foreign court to take evidence from a certain witness.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 n.1 (2004). The Hague Convention on the Taking of Evidence Abroad in Civil Commercial Matters, of which both the United States and Israel are signatories, provides the mechanism by which evidence is obtained abroad through the issuance of such a Letter.
This Guide focuses on Letters of Requests issued by U.S. courts, concerning evidence located in Israel. While evidence can take many forms, this Guide will focus on documents and oral testimony in the form of a deposition.
In this Guide, we will trace the life span of the Letter of Request, from the time it is drafted on the practitioner’s computer, following the adjudication of the Letter in the U.S. court, its transfer to Israel and subsequent execution therein. We hope this Guide will assist the “cross-border” practitioner in the procedures governing this important tool of international litigation discovery.
Israel is a party to the Hague Convention and has ratified it in 1978. Israel has also adopted legislation in this regard, including the Regulations for Implementing the Hague Convention of 1970 (Taking of Evidence), 5737-1977 (the "Hague Implementation Regulations"). Additionally, the Judicial Assistance Between Countries Law, 5758-1998 (the “Judicial Assistance Law”) and the Judicial Assistance Between Countries Regulations, 5759-1999 (“Judicial Assistance Regulations”) sets forth the procedures for the collection of evidence in Israel for use in another jurisdiction.
The United States is also a party to the Hague Evidence Convention, 23 U.S.T. 2555, reproduced in 28 U.S.C. § 1781. Thus, in the United States, litigants who seek evidence abroad from non-parties, will likely rely upon the Hague Convention and 28 U.S.C. § 1781. See also Rule 28(b)(1)(B) of the Federal Rules of Civil Procedure (permitting federal courts to issue letters of request to foreign countries).
These various laws and regulations set forth, among others, the procedures by which a U.S. party may seek evidence in Israel for use in a U.S. litigation.
We should note that being a party to the Hague Evidence Convention is not a prerequisite for the collection of evidence in Israel by foreign countries. Non-parties to the Convention may also seek judicial assistance in Israel under the Judicial Assistance Law, which regulates, among other things, foreign evidence requests by non-signatory parties. For example, in Dayan, et al. v. Invop, Ltd., Liq. Act. 65524-02-18 (Central Dist. Ct. June 10, 2020), a Canadian court requested from its Israeli counterpart various documents concerning 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.
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 specifically 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 cross-border countries need no 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 (like the United States), the request would be processed under both the Judicial Assistance Law and Hague Implementation Regulations. Should these two bodies of law contradict somehow, the latter would control. If the request is issued by a non-contracting country (like Canada), it would be processed and adjudicated exclusively under the Judicial Assistance Law.
As we pointed out above, this Guide will focus exclusively on U.S.-Israel practice, which is governed by the Hague Evidence Convention.
First Step: Drafting and Filing
The first step in a Hague Convention procedure is drafting and filing a Letter of Request, accompanied by all other necessary papers, with the court presiding over the primary lawsuit. As mentioned, we will focus on U.S. practice in this regard. Federal and state practice will vary as to the method and form of filing the papers. However, as a general rule, most applications to the court will include the following documents:
A Memorandum of law in support of the motion;
Declarations that support facts contained in the motion;
The Letter of Request, complete and ready for the court’s signature
The motion is generally a short statement requesting the court to grant the relief being sought. Here are two examples of a motion pursuant to 28 U.S.C. §1781:
"This motion is made pursuant to Federal Rule of Civil Procedure 28 U.S.C. 1781, which authorizes the taking of depositions in foreign countries pursuant to a Letter of Request. As explained in the attached Memorandum of Points and Authorities, the Court should issue a Letter of Request to enable the deposition in Israel of ____________. This motion is based upon this Motion, the attached Memorandum of Points and Authorities, the attached Letter of Request, all exhibits to the Letter of Request, the Declaration of ________ filed concurrently with this document, all exhibits to the Declaration of _______, all papers and pleadings in this action, all matters of which the Court may take judicial notice, and such other pleadings, evidence, and argument as may be considered by the Court."
"Plaintiff ______________ (“______”) respectfully requests that the Court issue Letters of Request in the forms attached hereto as Exhibits A and B, addressed to the Directorate of Courts in Israel, to obtain documents and testimony from: (1) ____________; and (2) _________________, both located in Israel. This application is made pursuant to, and in conformity with, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, T.I.A.S. 7444, 23 U.S.T. 2555, reprinted at 28 U.S.C. § 1781 (“Hague Evidence Convention”), which is in force between the United States and Israel. Issuance of the Letters of Request under the Hague Evidence Convention is a proper method for requesting documents and testimony of persons and entities residing abroad. The evidence sought is relevant to, among other things, issues such as ___________________________."
As you can see, the purpose of the motion is to describe in a very succinct form what the party is seeking. Because local rules vary among federal courts, practitioners must make sure the motion conforms with those rules. If the proceeding is pending in a state court, counsel should consult the relevant state rules governing a Hague Convention proceeding (should such rules exist) and make sure that the motion and other papers conform with those rules (and, at the very least, refer to them). For example, in addition to applicable federal law, section 2027.010 of the California Civil Procedure also governs the taking of depositions in foreign countries.
The Memorandum of Law
As its name suggests, the memorandum of law (“MoL”) is the document that demonstrates why the relief sought in the Motion is appropriate and supported by applicable law. Unless the circumstances warrant otherwise, the MoL should be relatively short and contain the following sections:
Background and statement of facts; and
The background/statement of facts section will obviously be different for every case. In this section, the moving party should concisely put down the facts that are relevant for the motion and demonstrate why the evidence being sought is relevant. The MoL should also explain why there are no other alternatives for retrieving the evidence.
The legal standard/argument section should include the relevant statutes that authorize the court to grant the motion and the reasons why the facts warrant it. It goes without saying that every Hague Convention-based MoU should at least mention 28 U.S.C. § 1781 as well as the leading case law in the relevant jurisdiction.
Under certain circumstances, a motion should also be supported by a declaration. The purpose of the declaration depends on the circumstances. At times, a declaration can support factual matters that come up in the motion. At other times, a declaration may be appropriate to demonstrate applicable Israeli law. For example, in one case the motion was opposed on the grounds that the relief sought – depositions of Israeli nationals and residents – was illegal under Israeli law. The movant attached a declaration of an Israeli attorney which demonstrated that while depositions are not available to Israeli litigants, they are available to foreign parties seeking discovery under the Hague Convention. Radware, Ltd. v. A10 Networks, Inc., 2014 WL 631537 (N.D. Cal. Feb. 18, 2014).
The Letter of Request
Perhaps the most important document filed during this first stage is the Letter of Request” (“LoR”). The LoR is based on the Conventions Model Letter of Request, currently available here. Pursuant to Article 3 of the Hague Convention and Rule 13 of the Hague Implementation Regulations, the LoR shall specify the following:
the authority requesting its execution and the authority requested to execute it;
the names and addresses of the parties to the proceedings and their representatives;
the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;
the evidence to be obtained or other judicial act to be performed.
the names and addresses of the witnesses;
the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;
the documents or other property, real or personal, to be inspected;
any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;
any special method or procedure to be followed under Article 9
An LoR should contain narrow and specific discovery demands because many countries – Israel included – are averse to the type of broad pretrial discovery that is common in the United States. Also, as demonstrated below, an LoR that is too broad may be denied by the Israeli court on the grounds that the discovery sought is not relevant.
Practitioner Tip: The LoR should contain the name(s) and contact information of counsel who will conduct the deposition or collect the evidence. In our experience, the LoR should list both the U.S. counsel who will likely be taking the deposition, as well as Israeli local counsel who can help assist with processing the LoR in Israel. Israeli local counsel is likely to be more familiar with the process and can help get the LoR before a judge. Moreover, Israeli counsel can also assist in updating the U.S. counsel as to developments, serving the papers on the witness and filing any necessary motions/requests with the court, etc. The Israeli court is likely to appoint the attorneys listed in the LoR as “Section 16(b) Attorney(s).” The referred to section is Section 16(b) of the Judicial Assistance Law which authorizes Israeli courts to appoint an attorney to execute the LoR.
A relatively recent example of an LoR that was signed by a federal court addressed to Israel is Finjan, Inc. v. Cisco Sys., Inc., 2019 WL 667766 (N.D. Cal. Feb. 19, 2019).
As for the relevant Israeli authority, that would be, to date, the Administrator of Courts, Legal Assistance to Foreign Countries, 22 Kanfei Nesharim St., Jerusalem 95464, Israel.
If the LoR is written in English, it need not be translated into Hebrew. Hague Implementation Regulations, §4; Regulation 3 of the Judicial Assistance Regulations.
After the motion is fully briefed before the court, the court will either deny the motion, grant the motion, or partially grant the motion. Notably, the parties to the underlying litigation will be entitled to participate and argue for and against the motion. However, the potential witnesses, located in Israel, may also be granted the right to appear and argue against the motion as well. Radware, Ltd. v. A10 Networks, Inc., 2014 WL 631537 (N.D. Cal. Feb. 18, 2014).
Second Step: the Proceeding before a U.S. court
Once fully briefed, the U.S. court will decide whether to grant the party its motion under the Hague Convention. When determining whether to issue letters rogatory, courts apply the principles of Rule 26 of the FRCP. Under Rule 26, parties may seek discovery as to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Relevance under Rule 26 “is an extremely broad concept.” Pearlstein v. BlackBerry Ltd., 332 F.R.D. 117, 120 (S.D.N.Y. 2019), on reconsideration in part, 2019 WL 5287931 (S.D.N.Y. Sept. 20, 2019). The party seeking discovery has the burden, but it is not heavy. Id.
The U.S. district courts have broad discretion in determining whether to grant Hague Convention motions. “When determining whether to exercise its discretion, a court will generally not weigh the evidence sought from the discovery request nor will it attempt to predict whether that evidence will actually be obtained.” Barnes & Noble, Inc. v. LSI Corp., 2012 WL 1808849, at *2 (N.D. Cal. May 17, 2012). Finally, where a motion for letters of request is opposed, the opposing party “must demonstrate … good cause or good reason why a letter request should not issue.” United States v. Badger, 2013 WL 1309165, at *7 (D. Utah Mar. 31, 2013).
Therefore, the scope and breadth of an LoR may comply with U.S. discovery practice, but may conflict with Israeli notions of relevancy. Just because a U.S. court grants an LoR, does not necessarily translate into an automatic execution by its Israeli counterpart. As demonstrated below, at least one Israeli court refused to execute an LoR on the grounds that its provisions were too broad and it sought evidence that appeared to be irrelevant.
Moreover, beware that U.S. courts may interpret or apply the Hague Convention in such a way that an Israeli court would not. A good example of this is letters of request that are issued for post-judgment discovery. U.S. courts appear to hold that such requests are within the scope of the Hague Convention. However, Israeli courts are not likely to execute a Hague Evidence Convention Letter of Request that seeks discovery for purposes of post-judgment collection. 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." For more on this, see our post here.
[The Hebrew phrase, Chikur Din is translated as “inquisition” or “judicial inquiry.” In fact, the Hebrew online dictionary, Morfix, translates the phrase as “letters rogatory.” (https://www.morfix.co.il). Chikur Din is the name used by the Israel court system to refer to a Letter of Request proceeding.]
Notably, the Hague Convention's scope is not limited to factual testimony or fact witnesses. Under certain circumstances, foreign expert testimony may also be sought under the Convention, if the sought-after expert evidence was not available in the United States. Leasco Data Processing Equip. Corp. v. Maxwell, 63 F.R.D. 94, 96 (S.D.N.Y. 1973) (granting a Hague Convention application for foreign financial expert witnesses); See also American Infra-Red Radiant Co. v. Lambert Industries, Inc., 32 F.R.D. 372, 374 (D.Minn.1963) (granting a Hague Convention application for foreign experts concerning the patent at issue in the litigation). All else being equal, an Israeli court would most likely execute such a request on behalf of the U.S. court. See Germany v. The Competent Authority, Chikur Din 70675-11-17 (Mag. Ct. Tel-Aviv, Dec. 13, 2017) (Israeli court executed a German court's letter of request to depose an expert in Israel). See our post here for more information on expert testimony.
In addition, the Israeli government may also be a witness under the Hague Convention. In other words, all else being equal, a U.S. litigant can seek documents from an Israeli governmental entity. See our post here for more on this.
Third Step: Processing the "LoR" in Israel
Once the U.S. court grants the motion, it is now time to execute it. How is this done? And, more importantly, how is this done efficiently and expeditiously?
Article 2 of the Hague Convention provides as follows:
A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organise the Central Authority in accordance with its own law. Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.
Rule 3 of Hague Implementation Regulations provides as follows:
A letter of request for the gathering of evidence in Israel shall include all the matters listed in Rule 13 […] and shall be submitted by the Requesting Authority to the Administrator of Courts, who shall serve as the Central Authority pursuant to the Convention to receive such requests.
See also, Judicial Assistance Law, §3(a).
The Office of International Judicial Assistance ("OIJA") serves as the Central Authority for the United States. Importantly, a signed LoR is NOT processed by the OIJA:
As the Central Authority pursuant to the Hague Evidence Convention, OIJA processes Letters of Request issued by a foreign judicial authority for the collection of evidence, whether documentary or testimonial, in the United States. OIJA does not process, review, or transmit Letters of Request or letters rogatory for the collection of evidence in a foreign state in private U.S. litigation matters.
The significance of all the above is that once the U.S. court grants the Hague Convention Motion and signs the LoR, the LoR should be sent directly to Israel’s “Central Authority”, i.e. the Administrator of Courts. As the OIJA’s website makes clear, it is not involved in receiving or otherwise processing LoR’s “for the collection of evidence in a foreign state…”
Notably, under certain circumstances, the LoR can be simply e-mailed to the Administrator of Courts.
Once received by the Administrator of Courts, the LoR will be processed. The Administrator will examine whether the LoR conforms with the Hague Convention. The Administrator of Courts is authorized to deny an LoR. However, this discretion is limited to the following circumstances:
The LoR does not conform with the Hague Convention;
The execution of the LoR is not within the jurisdiction of any judicial authority in Israel;
The LoR implicates Israel’s sovereignty or national security.
Hague Implementation Regulations, §5(a); Hague Convention, §12; Judicial Assistance Law, §3(b) (authorizing the administrator to grant, deny, partially deny, stay or request additional information). See also, Judicial Assistance Law, §5(a)(1)-(7) (listing additional grounds for denial).
Fourth Step: The Proceeding before and Israeli court
Once processed and approved, the Administrator of Courts will docket the LoR with the appropriate judicial authority. Judicial Assistance Law, §9(a); Hague Implementation Regulations, §3. The court that will be assigned to handle the matter will be an Israeli trial court (Shalom Court). Id.
The witnesses are entitled to be represented by counsel and make appropriate motions to the court.
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.
A witness may oppose the discovery sought if, under Israeli law, the discovery is impermissible. Israeli courts routinely emphasize that the availability of discovery and the scope of such discovery is subject to Israeli law. U.S. Court v. Mobileye Technologies, Ltd., Chikur Din, 13721-02-14 (Mag. Ct. Jer., Sept. 14, 2014) (“U.S. Court v. Mobileye”); Judicial Authority in the State of Maryland v. MacroCure, Ltd., Chikur Din, 45042-07-14 (Mag. Ct. Rishon L'tzion, Jan. 13, 2016).
Article 8(a) of the Judicial Assistance Law specifically states that an LoR should be carried out pursuant to the local law. Hence, Israeli law applies to its execution unless otherwise provided for by law. See also Article 9 of the Hague Convention (“The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.”). See also, Hague Implementation Regulations, §9.
Therefore, witnesses or custodians of documents may oppose the LoR on Israeli-based law grounds. For example, a witness/deponent may argue that the evidence being sought is irrelevant, overly burdensome, privileged, etc., all under Israeli law and precedent. In U.S. Court v. Mobileye, the court granted Mobileye’s opposition to the LoR because the court was not convinced that the broad and overly-encompassing LoR sought relevant evidence. Recall that this may occur even if the U.S. court would have viewed the evidence sought as relevant. See also, Pronova BioPharma Norge AS v. Teva Pharm. USA, Inc., 708 F. Supp. 2d 450, 452 (D. Del. 2010) (“Individuals to whom a Letter of Request is directed have the right to refuse to give evidence to the extent they are protected by a privilege under either the law of the State of execution or the State of origin”).
While U.S.- styled depositions are not proved for under Israeli discovery, they are allowed under the Hague Convention and the Judicial Assistance Law. U.S. Court v. Shaul, Chikur Din 42074-02-18 (Mag. Ct. Jer., Aug. 4. 2019) (Jerusalem Magistrate Court dismissed the witnesses' argument that the Judicial Assistance Law does not allow for depositions.); Medinol Ltd. v. Boston Scientific Corporation, Chikur Din 123/02 (Mag. Ct. Tel-Aviv, Aug. 8, 2002). Therefore, a U.S. court may request in the LoR that the witness be deposed as he/she would be in the United States. Pursuant to Article 3(i) and 9 of the Hague Convention, the LoR should state that the request is for a U.S.-styled deposition.
Rule 26(c) of the FRCP authorizes courts to order parties to litigation not to disseminate information obtained in civil discovery. These protective orders are common in U.S. practice, but less in Israel. The significance of protective orders comes up quite often during Hague Convention proceeding. Sometimes, the party seeking the discovery in Israel has stipulated to a protective order in the underlying U.S. proceeding. In fact, the protective order may even be incorporated into and attached to the signed LoR, as was done in Finjan, Inc. v. Cisco Sys., Inc.
Israeli courts are likely to honor the provisions of the protective order and even incorporate them into a formal decision. For example, in Judicial Authority in the State of Maryland v. MacroCure, Ltd., Chikur Din, 45042-07-14 (Mag. Ct. Rishon L'tzion, Jan. 13, 2016), the court granted the LoR based on, among others, the existence of a protective order:
Moreover, the U.S. court assumed that the evidence being sought includes trade secrets and clarified that it realizes the necessity to protect the respondent’s interest in its information. Accordingly, and pursuant to customary U.S. practice, the court issued a “protective order”… The protective order issued in the U.S. proceeding not only prohibits the use of the evidence in proceeding other than this proceeding, but it also allows the respondent to classify evidence as “highly confidential”, thereby preventing the disclosure of evidence to Cognate… Therefore, the law in the U.S. offers protection to trade secrets… and it was not demonstrated that this protection was not sufficient.
However, as the court pointed out in U.S. Court v. Mobileye, the question of whether a protective order is sufficient to protect legitimate interests is secondary to the question of whether the evidence being sought is relevant. As discussed above, a broad and over-encompassing LoR may be denied, notwithstanding a protective order in place.
Fifth Step: Conducting the Deposition
After the Israeli court adjudicates any matters that may arise under the LoR, the time will come in which the witness will undergo a deposition. If the Israeli court appoints counsel to execute the LoR (i.e. take the deposition of the witness or collect documents) under Section 16(b) of the Judicial Assistance Law (see above), counsel should serve the witness with the court documents, including a special subpoena. The language of the subpoena can be found under Regulation 13 of the Judicial Assistance Regulations.
As mentioned above, the depositions will be conducted as a U.S.-styled deposition. This means that the deposition will take place before a U.S.-licensed court reporter and the deposition transcript will be a verbatim transcript. Also, the deposition may be videotaped.
A witness has the right to be represented by counsel during a deposition, but there is no obligation for the deposing party to pay for any legal fees the witness may incur in engaging such counsel. See The Judicial Authority of the United States v. Cohen, Chikur Din 45977-05-20 (Mag. Ct., Sept. 8, 2020).
In general, Israeli courts adopt pragmatic methods for getting the discovery done. Should matters arise that concern the way the discovery is to be conducted, parties and witnesses may approach the court. The court, in turn, will be open and flexible.