Tips For Requesting Letters Rogatory For Discovery From Foreign Jurisdictions ' And Balancing International Comity

Published date15 September 2022
Subject MatterIntellectual Property, Government, Public Sector, Patent, Terrorism, Homeland Security & Defence, Government Contracts, Procurement & PPP
Law FirmFinnegan, Henderson, Farabow, Garrett & Dunner, LLP
AuthorMr Lionel Lavenue, Joseph Myles and Benjamin Cassady

To pursue discovery from foreign entities, litigants often request letters rogatory (or letters of request for judicial assistance) from a U.S. judicial authority, such as the district court hearing the case. Letters rogatory date back to early American law, when courts of one state would formally request the taking of evidence from another state, but now, letters rogatory are used to request judicial assistance in taking evidence abroad.

The Hague Convention facilitates access to evidence in foreign jurisdictions if certain jurisdiction-based conditions are met. If a country is not a signatory to the Hague Convention, discovery may be unavailable or prohibitively slow, because letters rogatory must be transmitted through consular or diplomatic channels. Regardless, obtaining letters rogatory is often the first step in discovery. And while federal courts have statutory authority to issue letters rogatory, their use is not without limitation.

As the Supreme Court explained in Aerospatiale, courts should scrutinize requests in letters rogatory on a case-by-case basis to determine whether they satisfy international comity (that is, if there is no violation of courtesy to the foreign nation). (Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522 (1987)).

Good cause for denying the request may exist where the disruption to international comity outweighs the value of the requested information in furthering justice. But, where requests for international discovery properly balance considerations of comity, letters rogatory are a valuable tool for seeking essential evidence.

Principles of Comity

Analyzing international comity requires courts to weigh the relative costs and benefits that pursuing discovery will bestow on each party. The requesting party bears the burden of persuading the trial court that letters rogatory are necessary and proper. (Madanes v. Madanes, 199 F.R.D. 135, 141 (S.D.N.Y. 2001)). A party opposing discovery may also demonstrate "good reason" for a court to deny the request.

Typically, the most common good cause for denying discovery via letters rogatory is that the requests disturb international comity.

Aerospatiale presented five factors courts can consider to weigh the international comity considerations:

(1) the importance to the litigation of the documents or other information requested;

(2) the degree of specificity of the request;

(3) whether the information originated in the United...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT