Many foreign countries are wary of “American-style” discovery and have created roadblocks in order to counter such pretrial discovery styles within their borders. Lawyers who fail to understand the challenges of obtaining such discovery will inevitably run into obstacles that impact cross-border litigation. This can lead not only to case delays but also outright bars to securing key evidence.

Which Procedures Apply?

To avoid discovery pitfalls in cross-border cases, the first step is to understand which procedures apply. In cases pending in the United States, discovery from a foreign party generally may be pursued under the court's discovery rules. For example, if a case is filed in Texas by a foreign company, discovery from that party may proceed under the applicable discovery rules—e.g., the Federal or Texas Rules of Civil Procedure—without resorting to treaty-based discovery procedures such as the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention).

The U.S. Supreme Court, in the 1987 case Societe Nationale Industrielle Aerospatiale v. U.S. District Court of the Southern District of Iowa, found that the applicable rules of civil procedure are not displaced by the Hague Convention when seeking discovery from foreign parties to U.S. litigation. Instead, the Hague Convention is a permissive supplement for securing discovery from foreign parties. Although a court may determine that international comity and foreign law requires use of the Hague Convention, courts have relied on Aerospatiale in refusing to impose a blanket rule mandating use of the Hague Convention as a first resort for securing discovery from foreign parties.

A foreign nonparty, however, is treated differently. Discovery from a foreign nonparty may require the use of letters rogatory or the Hague Convention. Further complicating this analysis, if documents and information are technically in the possession of a party's foreign subsidiary or affiliate, the Hague Convention procedures may need to be used absent a showing of the party's “control” over the foreign affiliate and its documents.

The Back Door of Broad Jurisdictional Discovery

Another important consideration in cross-border discovery is that the party/nonparty distinction may apply even when a foreign party is challenging the jurisdiction of a U.S. court. In those cases, some courts have allowed the plaintiff to pursue jurisdictional discovery under the court's procedural rules, rather than requiring use of the Hague Convention, even though the foreign defendant is challenging the U.S. court's jurisdiction in the first place. With that in mind, a foreign defendant should be mindful of limiting the scope of any such jurisdictional discovery.

If the case is ultimately dismissed for lack of jurisdiction, broad jurisdictional discovery may allow the plaintiff to obtain information that would not otherwise be discoverable in the appropriate foreign venue.

Resorting to the Hague Convention as a Last Resort

When it comes to foreign nonparties, the discovery process is typically fraught with challenges for lawyers accustomed to the ease of discovery in the United States. Both the Federal and Texas Rules of Civil Procedure allow for depositions and other discovery through a letter rogatory or letter of request sent by a U.S. court to a court in another country. But this mechanism is often lengthier and more difficult—generally taking more than a year to complete—than requests sent under the Hague Convention. By comparison, a Hague Convention letter of request is transmitted directly by the U.S. court to a central authority designated by the foreign country in question, and the entire process often takes between six and 12 months.

The Hague Convention process, although more efficient relative to letters rogatory, is cumbersome and time-consuming. Poorly drafted letters of request may be held up in the designated authority and take months to get to the foreign court, if not ignored entirely. And neglecting to review a foreign country's reservations under the Hague Convention can be fatal to a letter of request. Member countries to the Hague Convention are allowed to issue declarations prohibiting letters of request aimed at obtaining pretrial discovery of documents, or they may limit such requests to specific documents that are shown to be relevant to the pending case. Broad pretrial discovery requests thus are likely to be rejected by the foreign court.

In this sense, listing broad categories of documents, while commonplace in U.S. litigation, can be disastrous for a request issued under the Hague Convention. Instead, such requests should describe in detail the subject matter and specific documents requested, and deposition requests should describe the anticipated testimony and explain how it is relevant.

Beware of Blocking Statutes and Foreign Law Limitations

Finally, even when the Hague Convention is not necessarily required, obtaining documents and other information located in foreign countries may be limited by foreign laws such as “blocking statutes.” Statutes in some countries may impose criminal sanctions on local persons or entities who engage in the discovery process of another country without using the Hague Convention procedures. Privacy laws in other foreign countries may protect various types of documents from foreign discovery, effectively serving as a blocking statute preventing cross-border discovery on those topics.

Blocking statutes do not absolutely prevent cross-border discovery. In this respect, the U.S. Supreme Court in Aerospatiale established that foreign blocking statutes do not deprive U.S. courts of the power to order a foreign party to produce evidence, even if it violates such statutes. However, courts have applied a balancing test that can result in U.S. courts either refusing to compel production of information located in foreign countries or requiring that such discovery proceed under the Hague Convention. Among other courts, the Texas Supreme Court applied such a balancing analysis in the 1995 case Volkswagen v. Valdez, concluding that a trial court abused its discretion in compelling production of documents located in a foreign country because other discovery sources were available, the documents were not particularly relevant, and production of the documents would violate the foreign country's privacy laws.

Thus, even with regard to a foreign party subject to the jurisdiction of U.S. courts, obtaining information located in foreign countries may require the more time-consuming Hague Convention procedures, or it may be prohibited entirely.

Key Takeaways

When it comes to obtaining foreign discovery in cross-border cases, the main takeaways are simple: Make a plan for such discovery early in the case, and get local counsel involved. Otherwise, the time-consuming process of foreign discovery may result in evidentiary holes that cannot be filled in time for trial.

Brian Boyle is a partner in the Houston office of Lightfoot Franklin & White. His practice focuses on commercial litigation and arbitration, with an emphasis on the energy and construction industries. He frequently deals with foreign law application, cross-border discovery, and jurisdictional challenges in cases arising from international transactions and projects.