Few things in transnational litigation are as vexing or as unnecessarily frightful as the Letter Rogatory. Honestly, they’re not that complicated—they just have a few necessary elements that many practitioners miss, and because they’re signed by the judge, we worry. A lot. Perhaps this will shed some light…
What is it?
Black’s Law Dictionary (7th Ed.) defines a “letter of request” (same animal) as “a document issued by one court to a foreign court, requesting that the foreign court (1) take evidence from a specific person within the foreign jurisdiction or serve process on an individual or corporation within the foreign jurisdiction and (2) return the testimony or proof of service for use in a pending case.”
Put another way, it’s just a note from one judge to another, asking for a little help:
Dear Unknown Judge in Country XYZ:
I’m a judge, too, y’see, and I’ve got this case in my court that can’t proceed unless I get some help. Here’s what’s going on… (details)
Now that I’ve spelled out the gist of the case, I’d really appreciate it if you could see your way clear to sending out one of your guys to (serve process/compel this witness to submit to examination/compel production of evidence…). Pretty please. You’re a good fellow and, if you ever have occasion to send me one of these requests, you can bet I’ll make it happen for you. And if you’re ever in Cleveland, I’ll buy you a beer.
Oh yeah, the party that’s asking me to ask you for the favor? Yeah, he’s gonna cover all of your expenses, so go nuts, Scooter. Much obliged.
Your new best pal,
I’m not exaggerating. That’s really the tenor of the thing, albeit illustrated like a note from a 12 year-old to his canoeing buddy from summer camp. It’s just a judge here asking a judge there for a hand. Nothing more, nothing less. The biggest drawback: there is not a single legal doctrine that compels the foreign* judge to execute the letter (grant the favor) except the doctrine of comity. Nothing.
As such, if you get a grumpy judge on the other end (no, we never have those), you could have a problem. So be gentle. And just a tad obsequious.
What’s it used for?
A couple of big issues: (1) evidence taking, and (2) service of process in countries that aren’t members of the Hague Service Convention.
What are the hurdles?
Well, for starters, the manner in which it’s conveyed. Letters Rogatory are usually sent through diplomatic channels, which means it takes a while just to arrive in the foreign country, and it also means you have to pony up $2,275 to the State Department for the favor of sending it abroad in the diplomatic pouch.
Some exceptions to the “send it through State” rule:
- The Hague Service Convention renders Letters Rogatory completely unnecessary, so don’t sweat using one for Service of Process in much of the world.
- The Hague Evidence Convention removes the State Department from the equation, and allows submission directly to a Central Authority. It’s called a Hague Letter of Request, but substantively, it’s the same thing.
- The InterAmerican Convention on Letters Rogatory and Additional Protocol reduce the format to some pre-printed forms and allow for submission directly to a Central Authority, whether for service or evidence compulsion.
- Many Canadian courts will accept them directly for evidence requests. That is, they’re still Letters Rogatory, but without the hassle and cost of going through State. (Note that Canada is not party to the Evidence Convention.)
Another big hurdle is making the forum court judge understand why this this is necessary in the first place. Keep in mind, this is the fellow whose signature is going on the thing. I know some very fine judges, and several of them have told me, quite literally, that they don’t know a thing about handling cross-border issues. And who can blame them? After all, we expect these folks to know everything about everything, but they’re human. And it’s frequently up to us lawyers to advise them on the proper protocol. (For more on this challenge, see “Motions for Issuance of Letters Rogatory… a little like asking Mom to sign a permission slip.”)
The biggest hurdle of all is finding the right balance between (1) getting what you want and (2) getting what you need. That, like everything else we do, requires solid drafting.
For evidentiary requests, the Three Cardinal Rules of Hague Evidence Requests apply. Again, whether the Convention applies or not, the instrument of request is the same critter. For Service of Process, the Letter is a tad simpler to write; see the sample in the Federal Judicial Center’s guide for judges on Letters Rogatory.
Shameless plug: if this thing is too daunting, for crying out loud, call in some help (hint, hint). It’s always going to be better for your client if you hire a sherpa to help you carry your gear up the mountain instead of trying to go it alone.
* Foreign. Term of art, meaning outside this jurisdiction. Ontario is foreign to New York. Missouri is foreign to New York, for that matter, just as France is foreign to Texas and Kansas is foreign to, well, everywhere. (Sorry, Jayhawkers. Y’all are just goofy sometimes with that rock chalk chant thingy.) Point is, Letters Rogatory can be transmitted between courts within the United States– they aren’t just a transnational concept.