Litigation of issues across borders is complex and can take years to resolve. One issue that stands in the way of fair and accurate court hearings is obtaining evidence existing within the other country. There are standards in place for sharing discovery materials between countries that belong to the Hague Convention. However, without agreements such as this, parties may be left to convince foreign government leaders to share evidence using a process known as letters rogatory.
What is the process for letters rogatory?
Letters rogatory is the method used for obtaining judicial assistance from foreign countries when a treater or other agreement like the Hague Convention does not exist. The courts of one country submit a formal request to the other country’s courts to perform an act–often to provide evidence as permissible by the foreign country’s laws.
U.S. judicial bodies do not agree to submit letters rogatory without serious contemplation. First, they must determine that there are no other means to obtain the evidence without special assistance from the foreign court. Secondly, the U.S. Supreme Court decided that requests for letters rogatory should only be accepted where the process satisfies international comity (meaning it doesn’t violate courtesies afforded to foreign nations.) Requests may be denied where the disruption to international comity outweighs the value of the requested information in resolving a legal matter.
Letters rogatory take time. They are typically transmitted through diplomatic channels, which do not adhere to predetermined processing deadlines. Sometimes submitting a copy of the request with the assistance of a local attorney directly to the foreign court may solicit a faster response; however, that will only be permitted if this is deemed an appropriate process for interactions with a specific country.
The U.S. government provides the following tips for drafting letters rogatory:
- Letters rogatory should be written in simple, non-technical English and should not include unnecessary information which may confuse a court in the receiving foreign country.
- Many countries have different systems for obtaining evidence and may view U.S. discovery rules as overbroad.
- Requests for documents should be as specific as possible to avoid the appearance of being overbroad, which may result in the refusal of the foreign country to execute the request.
- If particular procedures to be followed by the foreign court are preferable, include the specifics in the letters rogatory (for example, verbatim transcript, place witnesses under oath, permission for the U.S. or foreign attorney to attend or participate in proceedings if possible, etc.)
- The letters rogatory should be addressed To the Appropriate Judicial Authority of (Insert name of Country).
- The form of letters rogatory depends on the country to which it is addressed and the assistance being sought. Some countries have statutory guidelines for granting assistance.
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