Rule #1 in pursuing discovery in other countries:  stop calling it discovery.  It’s evidence taking or, in many instances, evidence compulsion.  Why?  Because foreign legal systems, especially those in the civil law tradition, take a dim view of American-style discovery.  When a U.S. litigator comes at them with a subpoena, walls get thrown up rather quickly, and the litigator is left out in the cold, often not understanding why.

The distinction between “taking” and “compulsion” is critical to actually getting at the evidence sought.  American lawyers serve subpoenas on third parties as a matter of course.  We really don’t see a problem in the practice because it is so commonplace in U.S. practice.  When the U.S. third party receives a subpoena, they usually don’t take it personally because, again, it is so commonplace.  But a subpoena is by its very nature a coercive document.  Essentially: produce what I seek or else

The “or else” is what makes standard demand language so dangerous when attorneys try to serve a subpoena overseas.  Technically, a U.S. subpoena can’t be served abroad (at least not with any real effect), but the service technicality masks the real problem with subpoenas.  They’re actually counterproductive because they leave a sour taste in the third party’s mouth– a taste of vinegar, as it were– and fail to actually get at the evidence sought.

Very often, the more practical avenue is to tell the third party about the action and simply ask for the evidence:  “My dear Herr Schmidt, would you kindly provide me a copy of (document)?  It is an important piece of evidence in a case that my client is pursuing, and we would appreciate your gracious assistance.”

That’s the honey.  And it catches a whole lot more flies than the vinegar.

Of course, certain formalities might be necessary, such as legalization, a Hague Apostille, or an appropriate privacy release signed by the party-opponent.  Moreover, blocking statutes may prohibit the release of information for use in U.S. litigation (Swiss banking laws are a ready example).  But the cordial & direct approach might be the best first step before proceeding to the more formalized Letter Rogatory or Hague Evidence Request.*


*Hint: a Hague Evidence Request really is just a Letter Rogatory at its core.  The Hague Evidence Convention eliminates some costs and procedural barriers (eg: the need for diplomatic channels), but it does not overcome the need for a foreign court’s involvement.