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

1) INTRODUCTION

FSI, in particular Steven Loble, Partner in our Commercial

Dispute Resolution team have 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. 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

an Order to give evidence for foreign pleadings, 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, Scotland, Northern Ireland and

the Channel Islands (each of which is a separate jurisdiction). The

paper suggests the most appropriate procedures in particular cases

for England only; it is not an exhaustive review of the law or

procedure.

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 US is a prolific source of requests for evidence and

therefore the means of obtaining evidence outside the US under US

Federal Law is also set out in this guide.

2) THE METHODS OF OBTAINING EVIDENCE IN ENGLAND AND WALES

Evidence may be collected in England for US proceedings in the

three ways described below:-

1. 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 US Court and depositions are frequently taken

   before the US Consul.

2. 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 US 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 US national or US 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 US

   national or US resident to comply with such a subpoena and local

   law - for example, in the case of a London branch of a US bank when

   such a subpoena would not be effective. A London branch of a US

   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).

3. 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 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 US:

   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

   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 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 US Federal Rules of Civil

   Procedure and the rules of many State Courts in the USA, and Rule

   18 of the Nova Scotia Civil Procedure Rules." (see CPR

   31.21.5)

   5) PROCEEDINGS MUST HAVE BEEN INSTITUTED OR BE

   CONTEMPLATED

   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 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 the English Court will ordinarily give effect

   to 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.

   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 first nine topics are

   couched in similar terms, namely "All communications you have

   had with the...