JUDICIAL REQUESTS FOR EVIDENCE
The Office of International Judicial Assistance (OIJA) serves as the Central Authority for the United States under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, T.I.A.S. No. 7444, 23 U.S.T. 2555 (Hague Evidence Convention). The United States is not a party to the Inter-American Convention on Letters Rogatory for purposes of obtaining evidence. Because the Department of Justice has no authority to receive diplomatic notes directly from foreign states, the OIJA can only process Letters Rogatory received through diplomatic channels by way of the Department of State from any state that is not a member of the Hague Evidence Convention. Such requests are processed in a similar manner to requests under the Hague Evidence Convention.
The OIJA strongly encourages members to the Hague Evidence Convention to utilize the Model Letter of Request. Whether received pursuant to the Hague Evidence Convention or through diplomatic channels, the OIJA reviews the incoming Letter of Request to assess whether the request can be executed under our legal system. Our Frequently Asked Questions address common requests that cannot be executed under our legal system and will thus be returned without execution. An incoming Letter of Request must clearly identify the evidence sought and from whom. Where testimonial evidence is requested, the requesting judicial authority must provide a list of question to be posed or a detailed statement of the subject matter to be probed. Incomplete or untranslated requests will be returned without action. Please note, consistent with Articles 14(2) and 26 of the Hague Evidence Convention, the OIJA will seek reimbursement for certain costs, such as stenographer fees or costs, incurred by third parties in executing Letters of Request.
Upon confirming a Letter of Request is executable, the OIJA refers the Letter of Request to the United States Attorney’s Office with jurisdiction over the identified witness. Typically, an Assistant United States Attorney (AUSA) will execute a Letter of Request. Where a witness provides the requested evidence voluntarily, a Letter of Request may be quickly executed. However, where a witness must be compelled to provide the requested evidence, the assigned AUSA must initiate judicial proceedings in the United States under 28 U.S.C. § 1782, which will delay execution of the Letter of Request. The OIJA discourages the submission of duplicative Letters of Requests. Instead, judicial authorities may request status updates by contacting OIJA@usdoj.gov. To that end, we encourage requesting judicial authorities to provide us an e-mail address to which inquiries and updates may be forwarded. We also encourage judicial authorities to contact the OIJA to update or modify a previously submitted Letter of Request. Where requested evidence is no longer needed, we ask the requesting judicial authority to promptly notify the OIJA.
Hague Evidence Convention
Model Letter of Request
Executing Hague Evidence Requests
28 USCA 1781
28 USCA 1782
OIJA Evidence and Service Guidance
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters—more commonly referred to as the Hague Evidence Convention—is a multilateral treaty which was drafted under the auspices of the Hague Conference on Private International Law (HCPIL). The treaty was negotiated in 1967 and 1968 and signed in The Hague on 18 March 1970. It entered into force in 1972. It allows transmission of letters of request (letters rogatory) from one signatory state (where the evidence is sought) to another signatory state (where the evidence is located) without recourse to consular and diplomatic channels. Inside the US, obtaining evidence under the Evidence Convention can be compared to comity.
The Hague Evidence Convention was not the first convention to address the transmission of evidence from one state to another. The 1905 Civil Procedure Convention—also signed in The Hague—contained provisions dealing with the transmission of evidence. However, that earlier convention did not command wide support and was only ratified by 22 countries. The United States initiated the negotiations that led to the creation of the Hague Evidence Convention. However, insofar as requests to United States courts are concerned, parties may also use the simpler discovery provision codified at 28 U.S.C. § 1782 (see Section 1782 Discovery).
Between states of the European Union, the Hague Evidence Convention has largely been supplanted by Council Regulation (EC) No. 1206/2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters.
Parties to the Hague Evidence Convention
As of 2016, there are 59 states which are parties of the Hague Evidence Convention. Fifty-four of the HCPIL member states are party to the Hague Evidence Convention. In addition, five states that are not members of the HCPIL (Barbados, Colombia, Kuwait, Liechtenstein, and Seychelles) have joined the Hague Evidence Convention. Article 39 of the Hague Evidence Convention expressly permits states which are not members of the HCPIL to accede to the Convention.
Substantive Provisions of HEC:
Central authorities and procedures
The convention establishes a procedure whereby each contracting state designates a “central authority” to receive and review incoming “letters of request” for taking evidence in that country.
The central authority reviews the letter of request to determine that it complies with the requirements of the convention. If the LOR does comply, the central authority then “transmits” the letter of request “to the authority competent to execute” it (Convention, article 2) – which essentially means to a court.
Under Article 9, the judicial authority that executes a letter of request applies its own law as to the methods and procedures for executing the letter of request.
Under article 13, (a) the documents establishing the execution of the letter of request are to be sent by the requested authority (the recipient of the letter of request) to the requesting authority by the same channel that was used by the requesting authority, and (b) whenever the letter of request is not executed (in whole or in part), the requesting authority is to be informed immediately and advised of the reasons.
Perhaps the most controversial provision of the Hague Evidence Convention is the application of pre-trial discovery: obtaining of evidence prior to trial without the prior approval of a judge. While some countries (most notably the US, and certain common law countries allow this, it was felt unacceptable by many others. Pre trial discovery is therefore included in the convention, unless a state party has explicitly excluded it. Article 23 thus states a party may declare that "it will not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries."
To many American lawyers, article 23 emasculates the Hague Evidence Convention.
Most member states have issued some type of article 23 declaration. The United States, Israel, the Czech Republic, and Slovakia have not. Some member states have issued “no discovery” declarations, which are generally designed to make clear that the state will not execute a request for “American-style” pre-trial document discovery.
One such country is Greece, whose “no discovery” declaration reads as follows:
Greece declares that, in terms of the provision of article 23 of the Convention, it shall not execute judicial assistance requests for pretrial discovery of documents.
Some member states have issued “middle of the road” declarations. One interesting example is Mexico, which joined the convention in 1989. Mexico’s declaration is not a blanket rejection of US-style discovery requests:
C) FORMULATION OF PRE-TRIAL DISCOVERY OF DOCUMENTS
4. With reference to Article 23 of the Convention, the United Mexican States declares that according to Mexican law, it shall only be able to comply with letters of request issued for the purpose of obtaining the production and transcription of documents when the following requirements are met: (a) that the judicial proceeding has been commenced; (b) that the documents are reasonably identifiable as to date, subject and other relevant information and that the request specifies those facts and circumstances that lead the requesting party to reasonable believe that the requested documents are known to the person from whom they are requested or that they are in his possession or under his control or custody;(c) that the direct relationship between the evidence or information sought and the pending proceeding be identified.
Practical operation in member states
At least two member states authorize private lawyers to be involved in the evidence-gathering process. Under the law of the British Virgin Islands, if a witness is summoned to testify pursuant to a letter of request, a legal practitioner for any party may administer the oath to the witness. 
The availability of a private lawyer to be directly involved is even more broad under Israeli law. As noted above, Israel has not issued an article 23 declaration. Israeli law provides, pursuant to the Legal Assistance Among States Law 1998,  for the possibility of the appointment of a private lawyer to oversee the process of taking evidence under the convention. That statute also governs the procedure for evidence-gathering in Israel in aid of foreign criminal investigations. As a result, even in civil matters (including Hague Evidence Convention requests), the Israeli court system usually assigns letters of request to judges in the criminal division. Due to that allocation, most Israeli decisions issued in connection with international evidence-gathering are stamped “closed doors,” which essentially means that it is unlawful to publish the decision.
The American Bar Association conducted a survey to receive feedback from American lawyers concerning their experience with the letter of request procedures under the Hague Evidence Convention. The ABA published the results of the survey in October 2003, and its Conclusions section begins as follows:
The Hague Evidence Convention has been remarkably successful in bridging differences between the common law and civil law approaches to obtaining evidence and has significantly streamlined the procedures for compulsion of evidence from abroad.