Guide To Obtaining Evidence In England For Use In Proceedings In The United States Of America

1. Introduction

Steven Loble has been involved in a large number of cases involving obtaining evidence in England for use in proceedings in the United States of America, as well as enforcement of judgments. He has undertaken cases in this area throughout his career. This experience provides first hand knowledge of how the law and procedure works in practice and enables us to meet clients' needs in securing testimony and documents for use at trial in foreign countries, particularly in the United States.

It also enables us to assist clients who have been served with such an Order, if it appears that the Order should not have been made or if the Order is too wide. In such cases, we can apply for the Order to be set aside or modified to deal with the client's concerns.

This paper explains the procedures for obtaining evidence from non-parties in England and Wales (referred to below as England for the sake of brevity) for use in legal proceedings in the United States of America. The United Kingdom is made up of a number of different jurisdictions - England & Wales, Scotland, Northern Ireland and the Channel Islands (each of which is a separate jurisdiction). The guide suggests the most appropriate procedures in particular cases for England only; it is not an exhaustive review of the law or procedure. For advice on individual cases, please contact Steven Loble

Evidence may be obtained in England for use in foreign proceedings without any formal order. In certain other countries the obtaining of evidence without the permission of the Court is a criminal offence but the English Courts will not interfere with any procedure by which witnesses appear voluntarily to give evidence or produce documents. Only in restricted circumstances may production of documents be contrary to English law (e.g. pursuant to the Protection of Trading Interests Act 1989).

The U.S. is a prolific source of requests for evidence and therefore the means of obtaining evidence outside the U.S. under U.S. Federal Law is also set out in this guide.

2. The Methods Of Obtaining Evidence In England

Evidence may be collected in England for U.S. proceedings in the three ways described below:-

Voluntarily

Depositions can be taken and documentary evidence collected from any persons willing to appear voluntarily. This must be done in a way acceptable to the U.S. Court and depositions are frequently taken before the U.S. Consul.

Pursuant to Rule 28(B) Of the Federal Rules

Evidence can be obtained in any of the three ways set out in Rule 28(b):-

On notice, before a person authorised to administer oaths in the place in which the examination is held, either by the law of that place or by U.S. law; or

Before a person commissioned by the English Court and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony; or

Pursuant to Letters Rogatory (known in England as "Letters of Request" and so referred to below).

Further, a U.S. national or U.S. resident present in England and Wales may be subpoenaed pursuant to 28 USC Para. 1783.

However, there may be a conflict between the obligation of a U.S. national or U.S. resident to comply with such a subpoena and local law - for example, in the case of a London branch of a U.S. bank when such a subpoena would not be effective. A London branch of a U.S. bank should require the protection of an English Court Order before divulging any documents or information. There is also a limit to the subject matter jurisdiction of foreign courts (see MacKinnon v. Donaldson, Lufkin and Jennrette Securities Corporation [1986] 2 WLR 453).

Pursuant to the Hague Convention on the taking of evidence abroad in civil or commercial matters

The Evidence (Proceedings in other Jurisdictions) Act 1975 was passed partly to give effect to the Hague Convention. The Act goes further than necessary for the purposes of the Convention and should be read in conjunction with Part 34 of the English Civil Procedure Rules (CPR) to ascertain the boundaries within which evidence can be obtained pursuant to the Convention or for foreign proceedings generally and the procedure for obtaining such evidence. The procedure under The Hague Convention is the same for any country which is a party to it and indeed for any country which requests judicial assistance from the English Court.

3. Letters Of Request

Letters of request may be submitted either (i) through diplomatic channels or (ii) directly by English solicitors.

If English Solicitors are not instructed by the party seeking an Order for depositions or the production of documents the Treasury Solicitor (the government legal service) will make an application to the Court for an Order but it is more prudent to instruct English Solicitors in case the witnesses resist the Order. It is also quicker to instruct Solicitors and to send the Letters of Request directly to them - an Order can then be obtained within about a week, whereas transmission through diplomatic channels takes considerably longer.

4. Discovery And Fishing Expeditions

Discovery in England and Wales (which is documentary only) is much narrower than the discovery which is allowed in the U.S.: English Courts will not countenance "fishing expeditions". The English Court is prohibited from making an order requiring any particular steps to be taken unless they are similar to steps which could be taken to obtain evidence for the purposes of civil proceedings in the English Court. The English rules distinguish between (i) evidence in the nature of proof to be used for the purposes of the trial and (ii) evidence in the nature of pre-trial discovery to be used for purposes of a train of enquiry which might produce evidence for trial. The English Court will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents and will not give effect to a request for those purposes.

The notes to the CPR (The English Court rules) state:

"Distinction between evidence for trial or for pre-trial purposes

Under s.2(3), the English Court is prohibited from making an order requiring any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the English Court, whether or not they are proceedings of the same description as those to which the application for the order relates. This provision, which applies both to oral and documentary evidence recognises and gives effect to the distinction between evidence in the nature of proof to be used for the purposes of the trial and evidence in the nature of pre-trial disclosure to be used for the purposes of leading to a train of inquiry which might produce direct evidence for the trial. This distinction was in the mind of the draftsman of the Act of 1975 and was made the subject of an express declaration by Her Majesty's Government when ratifying the Hague Convention that the United Kingdom would "not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents" (see Cmnd. 6727 (1976)).

Accordingly, the English Court could in the past refuse to make an order in aid of a foreign request for evidence if it appeared or to the extent to which it appeared that that evidence was required, not for the purpose of proof at the foreign trial, where it was admissible and relevant to the issues in those proceedings, but for the purpose of disclosure, something in the nature of a roving inquiry in which a party was seeking to "fish out" some material which might lead to obtaining admissible evidence at the trial, even though the procedure of the foreign Court permited such a practice, as, for example, r.26 of the U.S. Federal Rules of Civil Procedure and the rules of many State Courts in the U.S.A., and Rule 18 of the Nova Scotia Civil Procedure Rules." (see CPR 31.21.5)

5. Proceedings Must Have Been Instituted Or Be Comtemplated

The English Court will not give effect to any request from a US. Court unless proceedings have actually been instituted or proceedings are contemplated in the US. In this context "contemplated" means that proceedings are imminent or pending.

6. General Principle

Subject to the above, the general principle followed by the English Court is that it will ordinarily give effect to a requests from foreign courts so far as is proper and practicable and to the extent that is permissible under English Law.

7. No General Investigation

General investigation (e.g. in Chapter 11 Bankruptcy Proceedings) will not be allowed - re. International Power Industries Inc. [1984] (not officially reported). Documents sought must be specifically listed and not referred to by general descriptions.

As the English Court of Appeal stated in State of Minnesota v Philip Morris Incorporated and Others,

"The difficulty in the present case, as in previous cases, arises because of the difference in approach to discovery in this country and the United States. Their discovery procedures are not necessarily the same in all States. But in general in the United States there is a tradition of oral discovery which has never been developed in this country. Rightly or wrongly, we regard oral discovery as a form of discovery which generates unnecessary costs and complexity. There is another difference between the approach to discovery in this country and that in the United States. Generally, where it is possible to get much wider "non party" discovery. That is discovery against those who are not parties to the proceedings." (per Lord Woolf MR).

In Smith v Phillip Morris Companies Inc and others [2006] EWHC 916 (QB) an Order made in England for evidence to be given in connection with a case in the United States was set aside. Mr Justice Andrew Smith J referred to the list of topics for examination attached to the letter of request and said,

"[6] There are 17 "topics for examination" listed in attachment A. The...