OBTAINING EVIDENCE ABROAD 404-459-8006
When evidence sought is in a foreign country, it is necessary to observe not only applicable state or federal rules, but also the laws and regulations of the foreign country where the evidence is located. Procedures may vary in civil, criminal and administrative cases.
Some countries view the taking of any form of evidence, even voluntary depositions, as an infringement on their judicial sovereignty. This applies to party and non-party witnesses. Telephone depositions are prohibited in many countries. Many countries do not permit the pre-trial discovery of documents. Attempting to obtain evidence without following the requirements of the foreign country may result in the arrest, detention, deportation or imprisonment of participants, including American counsel.
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I. COMPELLED EVIDENCE (Unwilling witness)
When a witness is not willing to testify or produce documents or other evidence voluntarily, the assistance of foreign authorities generally must be sought. The customary method of compelling evidence is by letter rogatory or “letter of request”, or if the country in question is a party to the Hague Evidence Convention, pursuant to those procedures.
Compulsion of Evidence Via Hague Evidence Convention in Civil or commercial/Administrative Matters. (23 U.S.T. 2555)
a. It is possible to obtain evidence in countries party to the Convention To compel testimony under the Hague Evidence Convention, a letter of request (similar to a letter. rogatory) sent directly to a foreign central authority by the court or litigant in the United States is used.
b. Compulsion of Evidence Via Letters
A letter rogatory, now more commonly known as a “letter of request”, is a formal request from a court in one country to “the appropriate judicial authorities” in all other country requesting compulsion of testimony or documentary or other evidence Most foreign countries will only accept letters rogatory from a court, and will not recognize a request from an administrative law judge. Letters rogatory can be used in civil and criminal matters, and have been used in administrative matters. The execution of a request for judicial assistance by the foreign court is based on comity between nations.