No Fishing: The reality of the Hague Evidence Convention
Of the three dozen or so Hague Conventions (specify which one you mean, counsel!), the United States is party to only a few. Among the most productive and useful are the Service and Apostille Conventions. And although it is helpful, the Hague Evidence Convention is not the great and wonderful device that American lawyers might hope for.
From a U.S. perspective, the HEC does little more than knock down a few procedural barriers—most importantly, it negates the need to convey a Letter Rogatory through diplomatic channels, which saves significant time and a $2,275 State Department handling fee. A Hague Evidence Request is still, for all intents and purposes, a Letter Rogatory. By no coincidence, it is officially and synonymously titled a “Letter of Request”. It is still a communication from judge to judge, it still relies on comity alone, it must still be surgically specific in detailing the evidence sought, and it must still demonstrate precisely how the evidence will be used at trial.
In short, no fishing.
Why? Because of Article 23, which is, for lack of a better analogy, a big, ugly middle finger directed at U.S. litigators. It was hastily drafted on the back of a bar napkin as the Convention seemed doomed to failure. U.S. negotiators recognized that American-style discovery (in the 1960s, a mere shell of today’s fishing industry) was poisonous to the Convention’s chances, so they conceded to the inclusion of the following:
A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.
Put more clearly: this treaty doesn’t oblige a member country to fulfill an American discovery request if they don’t want to.*
Accordingly, requests filed pursuant to the HEC must not bear the hallmarks of a discovery demand. Standard subpoena language—particularly the phrase “any and all”—is damaging, and potentially fatal. Careful drafting and the involvement of foreign counsel are critical (yes, we can provide both).
*Although the idea rises from the difference between common and civil law procedures for compelling evidence (in civil systems, judges—not lawyers—demand the production of evidence), even other common law countries have embraced the idea. It truly is directed at the United States, but the targeting is masked by the moniker “Common Law countries.”
Image courtesy of “Bidgee”, via Wikimedia Commons. https://commons.wikimedia.org/wiki/File:No_Fishing_Allowed_(Wollundry_Lagoon).jpg