Can a Hague Evidence Convention application be filed prior to commencing a lawsuit?

For example, company "A" is contemplating filing a lawsuit against company "B" for patent infringement. Prior to commencing a lawsuit, company "A" is interested in gathering additional evidence to further develop and bolster its claims. That additional evidence happens to be located in Israel. Can company "A", as the potential plaintiff, seek evidence in Israel under the Hague Evidence Convention prior to filing its lawsuit in the U.S.?

Article 1 of the Hague Evidence Convention provides as follows:

"In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, 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. A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated." [emphasis not in original]

The language used by the Convention indicates that as long as the judicial proceeding is contemplated -- but not yet commenced -- a party may seek foreign discovery.

According to a 2008 Report prepared by the Permanent Bureau, entitled Summary of Responses to the Questionnaire of May 2008 Relating to the Evidence Convention, with Analytical Comments, the interpretation of the expression “commenced or contemplated” has not given rise to many issues. The Report identified a diversity of domestic legal concepts that may correspond to “contemplated” proceedings. The Report further stated that some countries knew of no such concept of a "contemplated" proceeding. The Report went on to state that a number of countries appeared to support the view that the notion of “contemplated” proceedings included procedures instituted to obtain evidence where there was a danger that evidence would be lost that would be useful in proceedings that had not yet been instituted.

The Report recommends that the expression "commenced and contemplated” include proceedings for the taking of "evidence before main proceedings have been instituted, and where there is a danger that evidence may be lost". In other words, according to the Report, initiating Hague Evidence proceedings should be permitted when there is an additional risk of evidence spoliation.

While this may be a prudent recommendation, nothing in the language of the Convention suggests that this spoliation risk is a condition precedent for initiating pre-litigation Hague Evidence proceedings.

Notably, Article 23 of the Convention states that a country "may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries." The circumstances behind Article 23 are revealing. The story goes that in 1978, the Special Commission met at the Hague to review the operation of the Convention. The Commission concluded that many civil law countries had made Article 23 declarations because of a misunderstanding that "pretrial discovery" referred to "some sort of proceeding permitted under American law prior to the institution of a lawsuit." 17 Int'l Legal Materials 1425, 1427-1428 (1978).

This anecdote implies that parties to the Hague Convention simply assumed that pre-litigation application are allowed under Article 1. Hence, the insistence of many countries to include Article 23.

When all is said and done, it is not clear at this time how U.S. or Israeli courts would deal with a pre-litigation Hague Evidence application.

If we were to take a cue from Convention's close relative, 28 U.S.C. §1782 (the Convention is codified in 28 U.S.C. §1781) we can surmise that a U.S. court would, in fact, allow for such pre-litigation discovery. Under section 1782, a party to a litigation in a foreign (non-U.S.) country can seek discovery for use in that litigation in a U.S. federal district court. 28 U.S.C. § 1782(a) states in relevant part: "The district court of the district in which a person resides or is found may order him to give his testimony ... or to produce a document ... for use in a proceeding in a foreign or international tribunal ..." [emphasis not in original]. For more on this, in general, see our previous post, "The Power of Section 1782: Cross-Border Discovery".

U.S. courts have interpreted Section 1782 to include pre-litigation applications. In such pre-litigation 1782 proceedings, the applicant must demonstrate that an action is within reasonable contemplation. See Mees v. Buiter, 793 F.3d 291, 299 (2d Cir. 2015). "Reasonable contemplation", in turn, has been interpreted to mean that “the applicant must have more than a subjective intent to undertake some legal action, and instead must provide some objective indicium that the action is being contemplated.” Certain Funds, Accounts and/or Inv. Vehicles v. KPMG LLP, 798 F.3d 113, 123 (2d Cir. 2015).

Based on the above, a U.S. court may very well entertain a pre-litigation Hague Convention/Section 1781 application. If the U.S. court would issue a Letter of Request based on such an application, an Israeli court would probably execute it. However it does not appear that there is any direct case law on this issue, so we cannot say for sure.

To sum up, there are risks associated in filing a pre-litigation Hague Convention application. If necessary, litigants should take care to demonstrate the need for the evidence at the pre-litigation stage, and, if possible, why the evidence may not be available after the commencement of the lawsuit. Lastly, the applicant should also demonstrate that a lawsuit is imminent.