- The diplomatic channel will usually begin with a request to the non-U.S. court to issue a letter rogatory requesting the assistance of a competent authority within the U.S. to compel discovery from persons located in the U.S. (either documents or testimony). The non-U.S. court will likely utilize its own procedures for routing the letter rogatory to its country’s embassy in Washington, D.C., at which point the letter may be sent to the Department of State, which will forward it to the Department of Justice, Civil Division, Office of International Judicial Assistance, which is the office responsible for processing and executing such requests. The letter may also be sent directly to the Department of Justice’s Office of International Judicial Assistance. Once it is processed by the Department of Justice (which can take one month or more), the letter will typically be sent to the U.S. Attorney’s Office for the district in which the person or entity from whom the evidence is required resides. The U.S. Attorney’s Office will then make the appropriate application to the federal district court seeking the requested evidence on behalf of the non-U.S. court. After the letter rogatory is executed, it and any evidence that was obtained will be routed back to the non-U.S. court through the same channels.
- Under the Hague Convention on the Taking of Evidence Abroad, letters rogatory must be submitted directly to the Office of International Judicial Assistance at the Department of Justice, which the U.S. has designated as its central authority under the Convention. See Article 2 of the Convention (keep in mind that this assumes the diplomatic channel is being used; under 28 U.S.C. §§ 1781 and 1782, the letter rogatory can be submitted by the non-U.S. court, or by an interested party’s attorneys, directly to the appropriate federal district court for execution, bypassing government channels). In our experience, letters rogatory that come from the courts of non-signatory countries can also be sent directly to the Office of International Judicial Assistance at the Department of Justice, without going through the Department of State. Generally, the diplomatic staff of the non-U.S. court’s embassy in Washington, D.C. will determine the appropriate channel to use.
- The private attorney’s role in this government-to-government process is limited. One can remain in contact with the Office of International Judicial Assistance regarding the status of the letter rogatory; the contact information is listed below. Each letter rogatory received by the office is assigned a unique reference number. Once the letter rogatory is sent to the appropriate U.S. Attorney’s Office for execution, it should be a simple matter to call the office to find out which Assistant U.S. Attorney has been tasked with executing the letter rogatory. The Assistant U.S. Attorney will usually be willing to keep interested litigants updated on the letter rogatory’s status; if the request seeks oral testimony from a witness (usually on the basis of a list of questions pre-approved by the non-U.S. court), you may also request to be present when the oral testimony is taken. The Hague Convention on the Taking of Evidence provides for this right of access, stating in Article 7 that “the parties concerned, and their representatives, if any, may be present” at the taking of evidence pursuant to the Convention, and information regarding the date, time and place that the evidence will be taken “shall be sent directly to the parties or their representatives when the authority of the State of origin so requests.” In our experience, this courtesy has been provided even where the letter rogatory does not issue from a signatory to the Convention.
- Central authority designated by the U.S. to execute letters rogatory from non-U.S. courts:
U.S. Department of Justice
Office of International Judicial Assistance
WASHINGTON, D.C. 20530
United States of America
tel.: +1 (202) 514 7455
fax: +1 (202) 514 6584