This is part of a series of bulletins for US lawyers and parties who may have litigation or disputes in England, issued by partner Stephen Rosen who heads our UK/USA Transatlantic disputes team.

Bulletins from our UK/USA Transatlantic disputes team:

1) Pro-active steps to obtaining deposition evidence under the Hague Convention

2) Care needed when serving US proceedings in the UK

3) Collective actions: England cautious – catch-up with the US

4) Comparison of Chapter 11 US insolvencies with the UK approach 

5) Enforcing US Judgments in England

6) Obtaining documentary evidence from a witness in England for US proceedings

This briefing identifies the principal pitfalls for US lawyers when obtaining documentary evidence from a witness in England via the usual Hague Convention route.

US litigators rightly usually turn to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (the “Hague Convention”) when documentary evidence is needed from a witness in England.

On paper, the Hague Convention appears a straightforward mechanism for the execution of Letters of Request between US and English Courts in transatlantic litigation. In practice, however, English procedural rules diverge sharply from US-style discovery.

US lawyers should obtain English law input before seeking the Letter of Request from the US Court, as categories of documents routinely discoverable under US procedures may not be disclosable under English law. As a result, Letters of Request issued by a US Court can inadvertently include document requests that the English Court may subsequently refuse to approve.

The procedure to obtain documents

A party to US proceedings can issue a motion for a Letter of Request from a US Court to an English Court seeking documentary evidence from a witness in England pursuant to the Hague Convention. It is a formal request from a court in one jurisdiction (the requesting court) to a court in another jurisdiction (the receiving court) for evidence from a witness located within the receiving court’s jurisdiction.

Once the Letter of Request has been issued, a separate application must be made to the English Court for an order to give effect to that request. That application is made to the High Court under our Civil Procedure Rule 34.17 and may be brought without notice to the witness.

The requesting party’s English solicitors will ordinarily issue the application supported by a witness statement exhibiting the sealed Letter of Request and the underlying foreign proceedings and file a draft order. This will need to comply with English procedural requirements and include all necessary operational details required to obtain the evidence and any powers required to address witness non‑compliance.

If the court grants the application, it will issue a sealed order compelling the witness to produce the requested documents. That order is then formally served on the witness, who is required to comply with its terms. Once served, the witness is subject to the authority of the English Court and failure to comply may expose the witness to enforcement measures and/or sanctions. However, because the application is commonly made without notice to the witness, the witness has the opportunity to apply to set-aside or vary the order, typically within 7 days of service. A frequent ground for such an application is that the categories of documents sought are too broad or are insufficiently specific.

The English Court’s approach to document production – targeted, not expansive

The English Court is generally cooperative with US requests and will usually issue orders to compel a witness to produce documents, provided the request meets specific thresholds. General disclosure cannot be sought; only specific evidence that narrowly identifies existing documents that are both directly relevant to US proceedings and within the witness’ possession or control.

The principal risk for US lawyers is that the English Court will apply English, not US, procedural rules. English courts do not permit US-style discovery and will reject the request if they regard it as insufficiently precise or over-broad. As a result, the order made may not fully mirror the disclosure originally sought under the Letter of Request.

The common pitfalls faced by US lawyers and how to avoid them

 1: Lack of specificity

The Letter of Request must clearly identify the documents or evidence sought and avoid imprecise or overly broad categories. Requests resembling what the English Court may regard as “fishing expeditions” will not be approved. The court will only order production of specified documents, meaning documents or tightly defined categories that are sufficiently precise for the court (and the witness) to understand exactly what is being sought.

2: Insufficient relevance and necessity

The documents sought must be demonstrably relevant to issues for determination in the US proceedings. The English Court may scrutinise relevance if it has not already been addressed by the US Court.

3: Improper purpose or disproportionate scope

The request must be made for a legitimate judicial purpose under the Hague Convention and must not be oppressive, disproportionate, or abusive. The English Court’s role is limited to assisting within the narrow confines of English evidence-gathering powers.

 4: Failure to establish the existence of documents

The English Court will only compel the production of documents that fall within what English law recognises as evidence for trial. Investigatory or asset tracing enquiries will not be allowed. The US applicant will need to satisfy the English Court that the documents sought exist or are likely to exist, and are likely to be in the witness’s possession, custody or control. Otherwise, the document request may be treated as a prohibited fishing expedition.

 5: Failure to seek voluntary disclosure

The English Court expects applicants to have sought voluntary cooperation from the witness, unless there is a good reason not to. Voluntary contact may not be appropriate where there is a genuine concern that approaching the witness may prompt them to conceal or destroy documents, tip off other parties, or otherwise undermine the evidence-gathering process. However, if such concerns do not exist, failure to obtain voluntary disclosure may lead the English Court to view the application with scepticism.

The overall message for US lawyers is to consult with English solicitors before applying for the Letter of Request so as to ensure compliance with English procedural rules.

By Tami Davis (Associate Solicitor) and Stephen Rosen (Partner).

Issued by Stephen Rosen head of UK/USA Transatlantic disputes team, Collyer Bristow.

[1] References to England are to England and Wales.