International Law

Skillful Ways of Gathering and Using Discovery Abroad

By Rick Rein

The Federal discovery rules in the United States can be extremely effective for use in foreign proceedings abroad and more importantly, can be used where discovery is otherwise limited by foreign laws. With countries who are signatories under the Hague Convention, a party can petition for issuance of a letter of request to take evidence abroad. Or, it can be more effective to apply directly to the U.S. courts for discovery under 28 U.S. C. Section 1782.

For instance, in the Netherlands, Dutch courts have held that evidence obtained under Section 1782 may be used in proceedings there.  Under Dutch civil procedure, a party may request production of documents. Courts have decided that only documents relevant to the outcome of the proceedings will be produced and to grant such request, the  applicant's claim must be well-reasoned and at least not be obviously without merit. If it is not certain that the documents exist, Dutch courts will not order their production. There is also a conflict among court decisions as to whether only documents where the applicant is a party to the legal relationship can be produced. Hence, Dutch discovery can be very limiting.

On the other hand, discovery under U.S. rules is much more broad-based. Thus, if evidence exists in the U.S. for use in the Netherlands, Section 1782 can be utilized to obtain it. Dutch courts have ruled that evidence obtained pursuant to Section 1782 is admissible in the Dutch proceeding since it was not unlawfully obtained.

Therefore, when pursuing a recovery in foreign countries, a party can seek and use discovery procedures that are much broader in scope in the U.S. Parties should not feel confined to having to institute U.S. proceedings in order to access and take advantage of U.S. discovery.

Full post as published by International Asset Recovery Law Blog on December 09, 2009 (boomark / email).