In the age of the global economy and the inevitable accompanying cross-border disputes, US based litigants are commonly facing the dilemma of how they can obtain evidence for use in US proceedings from individuals and entities based in foreign jurisdictions. In particular, and due to increased levels of trade and business dealings between the two regions, US corporations frequently find they need access to documentation or information held by individuals and entities based in the UK.
Where to start
The starting point should always be to ask the relevant individual/entity directly whether they will voluntarily provide the documentation and information required. If they are willing to cooperate, it will be a simple matter for the lawyers to the respective parties to agree the terms for the provision of evidence. The parties will also need to ensure that all procedures undertaken satisfy the requirements of both the local US court and the rules in the UK, and consider how they will address the issue of costs and expenses arising out of the provision of the evidence.
Of course, in the context of a commercial dispute, it is highly probable that a party, or non-party to the proceedings, will be uncooperative. So, what do you do when you have an individual or entity that is subject to the jurisdiction of the English court, and you want to compel the production of documents, or the taking of a deposition for use in US proceedings?
Under English law, there is a particular process that a party to litigation in a foreign jurisdiction must go through in order to obtain evidence from an individual or entity under the jurisdiction of the English court. This derives from the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention), to which the US and the UK are both signatories. In the English courts, the procedure is also governed by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (EPOJA) and the Civil Procedure Rules 1998 (CPR).
The procedure is initiated by the US court in which the proceedings are taking place making a request to the Senior Master of the High Court of England and Wales (as the designated Central Authority), via a ‘letter of request’, that the English court takes evidence, and transmits that evidence back to the US court for use in the US proceedings. These requests are known in the US as ‘letters rogatory’.
The letter of request must contain certain information regarding the details of the authority requesting its execution, the authority that has been requested to make the order, information relating to the parties of the current proceedings and details surrounding the nature of the proceedings. It must also set out the evidence to be obtained or other judicial act to be performed.
The letter of request, where appropriate, should also specify details of the people sought to be examined, list the questions to be put to the proposed witnesses (or a detailed statement of the subject matter about which they are to be examined), list any documents or other property to be inspected, and state any specific procedures which the US federal or state courts require to be followed.
The English court derives its authority to act in aid of a foreign court from the EPOJA. Consequently, where an application is made to the High Court for an order that evidence be obtained in England and Wales to assist in foreign proceedings, the letter of request received by the High Court of England and Wales will likely only be complied with, and the application granted, if the following conditions under the EPOJA are met:
- the court is satisfied that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction outside of the UK; and
- the evidence to which the application relates is obtained for the purposes of civil proceedings which have been instituted, or which it is intended to institute before the court by which the request is made.
If those conditions are met, the court will likely make the order as it is the policy of the UK courts to ‘give effect to requests which are made to it by foreign courts wherever it can properly do so within the jurisdiction given to it by the EPOJA’ (United States v Phillips Morris Inc (No.1)  All ER (D) 191).
An application for an order under the EPOJA is made pursuant to CPR 34.17. The application must be made to the High Court of England and Wales, be supported by written evidence, and be accompanied by a copy of the letter of request from the foreign court which has given rise to the application. The application may be made without notice. If an application is made that satisfies the conditions listed above, the court has the discretion to make an order granting the application for assistance. Such an order may direct that a party produces specific documents or that a witness be examined (a deposition). Subsequently, if the order(s) made are not complied with, they can be enforced through the English court. Non-compliance by a party may result in cost sanctions or other enforcement avenues, such as contempt of court proceedings.
Disclosure of documents
It is important to note that the UK courts are very strict when it comes to the contents of a letter of request. A request cannot be wide-ranging, investigatory in nature, or seem to be a ‘fishing expedition’. If documentary evidence is sought, then the individual documents or a specific, clearly identified class of documents must be named. The court must also be satisfied that the documents actually exist; the mere suggestion they do will not suffice (s2(4)(a) EPOJA).
The UK disclosure rules as set out in the CPR are very restrictive in comparison to the discovery rules in the US. The English courts will not execute a letter of request where the evidence sought is not possible, permissible or practical to give effect to under English law. Nor will an order be made against a non-party to US proceedings requiring them to state what documents they have, or had in their possession, custody and control relevant to the issues in the proceeding (ie to provide general disclosure) (Rio Tinto Zinc Corporation v Westinghouse Electric  1 All ER 434). The court will only require the non-party to produce specific documents in their possession, custody and control which are adequately particularised. In circumstances where the UK court receives a letter of request which has not been sufficiently particularised, it is entitled to apply the metaphorical ‘blue pencil’ to edit the request by deleting aspects which are objectionable, but it cannot substitute a different request entirely (Refco Capital Markets v Credit Suisse (First Boston) Ltd  EWCA Civ 1733).
Accordingly, when preparing a letter of request, it is very important to ensure that the documentation sought is described in as much detail as possible, so as to enable each document to be individually identifiable. By way of example, an order would likely be granted when an applicant sought the party’s ‘monthly bank statements for the calendar year of 2017 for account number XXX-XXX, held at XXX bank’, where it can be established that the account is in the party’s name, and that they receive the bank statements for that account on a monthly basis. In comparison however, a request for ‘all the party’s bank statements for 2017’ would fail (see Re Asbestos Insurance Coverage Cases  1 WLR 331 at 337-8).
Deposition of witnesses
If the English court orders an examination of a witness, the court may specify that this evidence be taken before any fit and proper person nominated by the party applying for the order, or an examiner of the court. Usually, the deposition will take place in local law firm offices, it will be recorded, and the questioning will be undertaken by a US qualified lawyer, qualified to practice in the state in which the case originated. It is common for English solicitors to attend to ensure that all applicable English procedural rules are followed. Witnesses subject to an examination order will be afforded the same privilege protections as would be available to them under English law and the applicable US federal and state laws: ie witnesses are able to invoke their fifth amendment right against self-incrimination even where they are UK based entities/individuals (section 3 EPOJA). When the deposition is complete, the examiner will send a copy to the Senior Master, who will then make the appropriate arrangements to send it to the relevant US federal or state court.
Although there are no time limits specified in either the Hague Evidence Convention or the CPR for any of the processes detailed above, the Hague Evidence Convention indicates that letters of request ‘shall be executed expeditiously’. Most commonly, an order for the production of documents or the examination of a witness made under the EPOJA will be made without notice (thereby expediting the process). However, this of course means that the party in receipt of the order can take steps to challenge it and have it set aside.
Given the above, when a party to proceedings in the US realises that evidence held by a UK based individual or entity will be vital to their litigation, it is strongly advisable for them to instruct local English solicitors as soon as possible. Steps can then be taken, with US and UK lawyers working together, to prepare the necessary letters of request and application, in order to avoid falling foul of any procedural and discovery requirements.
Note: mention of the UK refers to the legal jurisdiction of England and Wales, and reference to the UK court or English court means the High Court of England and Wales.
This article was published in the International Bar Association Litigation Committee Newsletter in May 2018.