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


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


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.


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


    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.


    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.


    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




    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



    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.


    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


    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...

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