United States: Tips For Requesting Letters Rogatory For Discovery From Foreign Jurisdictions – And Balancing International Comity

To pursue discovery from foreign entities, litigants often request letters rogatory (or letters of request for judicial assistance) from a U.S. judicial authority, such as the district court hearing the case. Letters rogatory date back to early American law, when courts of one state would formally request the taking of evidence from another state, but now, letters rogatory are used to request judicial assistance in taking evidence abroad.

The Hague Convention facilitates access to evidence in foreign jurisdictions if certain jurisdiction-based conditions are met. If a country is not a signatory to the Hague Convention, discovery may be unavailable or prohibitively slow, because letters rogatory must be transmitted through consular or diplomatic channels. Regardless, obtaining letters rogatory is often the first step in discovery. And while federal courts have statutory authority to issue letters rogatory, their use is not without limitation.

As the Supreme Court explained in Aerospatiale, courts should scrutinize requests in letters rogatory on a case-by-case basis to determine whether they satisfy international comity (that is, if there is no violation of courtesy to the foreign nation). (Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522 (1987)).

Good cause for denying the request may exist where the disruption to international comity outweighs the value of the requested information in furthering justice. But, where requests for international discovery properly balance considerations of comity, letters rogatory are a valuable tool for seeking essential evidence.

Principles of Comity

Analyzing international comity requires courts to weigh the relative costs and benefits that pursuing discovery will bestow on each party. The requesting party bears the burden of persuading the trial court that letters rogatory are necessary and proper. (Madanes v. Madanes, 199 F.R.D. 135, 141 (S.D.N.Y. 2001)). A party opposing discovery may also demonstrate "good reason" for a court to deny the request.

Typically, the most common good cause for denying discovery via letters rogatory is that the requests disturb international comity.

Aerospatiale presented five factors courts can consider to weigh the international comity considerations:

(1) the importance to the litigation of the documents or other information requested;

(2) the degree of specificity of the request;

(3) whether the information originated in the United States;

(4) the availability of alternative means of securing the information; and

(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located. (Aerospatiale, 482 U.S. at 544 n.28).

Factor 1: Importance

The first Aerospatiale factor considers the importance of the requested discovery to the litigation. As shown in the cases below, information that is material to the litigation may be sought through letters rogatory, while requests for irrelevant or non-exculpatory information will be rejected. (Elliott Assocs., L.P. v. Republic of Peru, 961 F. Supp. 83 (S.D.N.Y. 1997)).

The bar to show materiality is generally low, unless the opposing party can demonstrate good cause for denial by, for example, showing that the requested information is irrelevant, non-exculpatory, or cumulative. In Merck v. Sandoz, Sandoz argued that Merck's patent claims were obvious, a showing that turned on the understanding of a person of ordinary skill in the art, not an inventor. (Merck Sharp & Dohme Corp. v. Sandoz, Inc., No. 12-3289, (N.J. 2013)). So, when Sandoz sought letters rogatory to depose U.K. inventors who were former employees of Merck, the trial court denied Sandoz's request as irrelevant. (Id.).

Courts may also deny requests seeking non-exculpatory or cumulative evidence, even if the evidence is relevant. In U.S. v. Rosen, private citizens sought discovery from Israeli government employees about the relationship between the Israeli government and the American Israel Public Affairs Committee (AIPAC). (United States v. Rosen, 240 F.R.D. 204 (E.D. Va. 2007)). But AIPAC employees had already testified about that exact relationship. So, the court found this evidence "not necessary to ensure a fair trial" because when "not exculpatory, or when exculpatory, it is cumulative," and declined to issue letters of request. (Id. at 213, 215).

Factor 2: Specificity

As explained by the cases below, overly broad requests will also weigh against issuance of letters rogatory. For example, Seoul Semiconductor involved a request to depose a French national who helped prosecute asserted patents. (Seoul Semiconductor Co. v. Nichia Corp., 590 F. Supp. 2d 832 (E.D. Tex. 2008)).

The request sought discovery relevant to validity and enforceability but could have obligated the French national to testify generally about any invalidity defenses, prior art searches, and attorney-client communications. (Id. at 836). According to the court, this information far exceeded the scope necessary for litigation, and so weighed the specificity factor against discovery. (Id.).

In contrast, the Lantheus case involved claims that a nuclear reactor was shut down improperly due to a water leak. (Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 841 F. Supp. 2d 769 (S.D.N.Y. 2012)).

The company, Lantheus, tailored its requests to only cover information related to "specific theories of the water leak," specifically excluding other information and other parties. (Id. at 793). Accordingly, the court found the request sufficiently narrowed to not offend principles of international comity, which weighed in favor of discovery. (Id. at 796).

Factors 3 & 4: Origin and Alternative Availability

Aerospatiale factors 3 and 4 consider whether the information sought originated or can be obtained domestically. (Aerospatiale, 482 U.S. at 544 n.28). As shown in the examples below, typically, seeking information that originates outside of the United States weighs against issuance of letters rogatory, but this factor can be counterbalanced by the unavailability of alternative means of discovery.

For example, again in the Lantheus case, the nuclear reactor operating data that would help determine why and how the reactor was shut down originated in Canada, held by the reactor operator, and not publicly available. (Lantheus, 841 F. Supp. 2d at 793). Thus, the unavailability of alternate sources for the requested information "counterbalanced" the fact that the material sought originated in Canada, and the court granted the request. (Id.).

In contrast, in Yellow Pages v. Ziplocal, the 11th U.S. Circuit Court of Appeals affirmed a district court's denial of letters rogatory because the requested information was available through domestic sources. (Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d 1255, 1262 (11th Cir 2015)).

Yellow Pages Photos (YPP) sued Ziplocal for copyright infringement, alleging Ziplocal used YPP photos without a license. (Id. at 1262). YPP sought letters rogatory to depose Ziplocal's Canadian graphics supplier. (Id. at 1274).

The district court denied the request because YPP could depose the graphics supplier's American affiliate, confirming no copyrighted photos were transferred to the Canadian affiliate. As the request was directed at evidence available through traditional discovery mechanisms in the U.S., the 11th Circuit found the district court had not abused its discretion in finding good cause for denial.

Factor 5: Relative Interests of Governments

The final Aerospatiale factor weighs the interests of the United States government in granting the requested discovery against the interests of the foreign government in denying the request. (Aerospatiale, 482 U.S. at 544 n.28). This factor accounts for national security interests that may be undermined if discovery is granted, among other important government interests.

In El-Mezain, for example, the defendants sought to review 2,000 boxes of documents the Israeli military had seized from alleged pro-Hamas conspirators. (United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011)). The defendants claimed the Israel Security Agency (ISA) had cherry picked evidence to demonstrate a connection to Hamas, ignoring possibly exculpatory materials. (Id. at 492).

The 5th U.S. Circuit Court of Appeals found that this contention and request were not premised on good faith or reasonable belief. (Id. at 517-18). Instead, the request would jeopardize the national security interests of the ISA and the Israeli government, without providing an increased likelihood of uncovering material evidence. (Id.). Therefore, the court denied the request for the fishing expedition for discovery based on the relative governmental interests.

Conclusion

Courts often look to the five Aerospatiale factors when analyzing requests for international discovery in the context of international comity. While not exhaustive, the five Aerospatiale factors can provide "good reasons" for denying issuance of letters rogatory under the Hague Convention.

Courts may deny requests for letters rogatory for reasons of relevance, specificity, importance, availability, and more. Courts are especially wary of broad or duplicative discovery against foreign parties. For appropriate requests for discovery from foreign entities, though, the bar to issuance is generally low, and opposing parties may sometimes struggle to demonstrate a good reason for denial.

In summary, litigants opposing letters rogatory can consider the importance of the information to the legal issues of the case and whether letters rogatory provide the ideal discovery procedure. The flexibility of comity analyses may also allow litigants to argue more social and political grounds, advocating that certain discovery requests undermine national security interests. On the other hand, litigants seeking discovery should be mindful to craft specific requests, seeking only novel, critical information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.