How Can A UK Witness Be Made To Testify In US Legal Proceedings?

Author:Mr Sanam Habib
Profession:Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
 
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Under the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), English Courts will assist US Courts to obtain oral and documentary evidence from witnesses who are resident in England and Wales.

The Hague Convention is a multi-lateral treaty between signatory states, which provides for taking evidence in the form of a letter of request (previously referred to letters rogatory) by diplomatic channels or consular agents or commissioners. The Convention provides a unified approach to taking evidence compatible with both civil and common legal systems.

In England and Wales, the Evidence Act 1975, the Civil Procedure Rules and the Hague Convention authorise the High Court to make an order for an individual or a corporate entity resident in England and Wales to produce evidence or documents for use in foreign civil or commercial proceedings.

Conditions

For a letter of request to be valid, the following conditions have to be met:

The English Court must be satisfied that the applicable evidence is obtained for civil or commercial proceedings which have already started or are contemplated; The order must be for evidence which is to be obtained from within the jurisdiction (i.e. from within England and Wales); and The application must be made on behalf of a relevant Court (i.e. in the case of evidence for proceedings in the US, a US Court). Limitations

Additional limitations are imposed by the Evidence Act 1975.

Relevance

According to the Evidence Act, the evidence in question must be relevant and for use at a relevant trial. This excludes obtaining evidence for preliminary hearings. The question of relevance is determined by the English Court and is not separately assessed by the US courts who simply rely upon the judgement of the English Court.

General Disclosure and “fishing expedition”

Requests for disclosure must be specific. General requests will be rejected. The Courts will reject applications which fail to request specific information or which amount to a “fishing expedition” aimed at obtaining evidence which is vaguely or insufficiently defined. The burden of proof is on the applicant to persuade the Court that their request is sufficiently specific to overcome this barrier.

Limitations on documents which can be produced

A Court will not compel a witness to produce evidence other than the specific documents which are specifically named in the request and which a witness has in their...

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