As the world grows smaller and nations become more interdependent, the likelihood that litigation will involve foreign property, parties, or activities increases tremendously. To prepare and conduct such litigation, the lawyer may need to obtain information "located" in a foreign jurisdiction: a person located abroad may know the information; documents located abroad may contain the information; or the information may describe conditions or property located abroad. The question of when relatively burdensome, internationally-approved methods of obtaining such information must be used thus becomes more and more important.
Consider a product liability suit for damages in the United States arising from a defective automobile made in Europe. The plaintiff's lawyer will want to know how the manufacturer designed the product, whether the manufacturer selected a more dangerous design to save money, the extent of quality control in the manufacturing process, and other material information. Documents and people with this information, however, may only be found in Europe.
The problem of how to obtain such information presents conflicts between the interests of litigants in United States courts and the interests of foreign states in protecting against encroachments on their territorial sovereignty. Resolving these conflicts initially requires examining the alternatives available to a litigant who seeks such information.
First, if a party under the personal jurisdiction of a United States court can obtain and provide the information, an opposing party may employ various discovery techniques. Under the Federal Rules, a party may use interrogatories, requests for admission, oral depositions, and requests for production of documents or inspection of tangible things to obtain information from an opposing party.
Second, a party may obtain information by seeking to depose a nonparty and to have the nonparty produce documents. Federal courts have jurisdiction to subpoena a United States national in a foreign country and require his or her presence before the court, but there may be no basis for requiring a foreign national to appear before a United States court to testify. Thus, proceedings in the foreign country may be necessary to obtain information from a non-United States witness. Further, when obtaining information requires activity in the foreign jurisdiction other than taking testimony, such as physically inspecting an automobile plant, a proceeding abroad becomes necessary.
The traditional method of obtaining information from a nonparty is by a letter rogatory, or letter of request, from the American court to a court of the foreign state, requesting the latter to conduct a proceeding. The court may transmit the letter directly or through the State Department.
The Federal Rules also permit alternative evidence-gathering proceedings abroad. A party may take depositions before a person authorized to administer oaths under the foreign state's law or before consular officers of the United States. Additionally, the court may commission a person to administer oaths and take testimony abroad.
John M. Rogers, On the Exclusivity of the Hague Evidence Convention, 21 Tex. Int'l L. J. 441 (1986).