Personal injury cases often require defending counsel to review a plaintiff's medical and employment records to ensure that the injury in question is not a result of a preexisting condition or previous injury. But when the plaintiff has lived or worked in another country, things can become complicated. Allan Rotlewicz answers questions about legal processes for obtaining information from overseas.

Related Questions

  • Why would an attorney need to obtain records from another country?

In all personal injury cases, the defending legal team should make it a point to find out if the plaintiff is either from another country or has lived/worked in another country for any period of time. The client must then be made aware of the potential for uncovering a previous injury or preexisting condition that may affect the outcome of the case. Additionally, treatment after the incident may have been sought out of the country. Obtaining records can be time consuming and costly, but may significantly impact settlement costs. 

While a plaintiff may readily sign an authorization allowing physicians and institutions in foreign countries to release records, going this route is not advised, as there is nothing to compel the physician/institution to comply with a request. And, if they do submit records, there is a real chance that they will send less than the entire file. Unfortunately this makes the whole process a bit more complicated.

  • How does one go about requesting records from someone in a foreign country?

Personal injury litigation involving plaintiffs who live or have lived in foreign countries require corporations and their attorneys to carefully review the processes for requesting medical and employment records. Following a formal process is necessary because a court in the United States has no jurisdiction or authority over individuals or entities in other countries. The process differs from country to country. For instance, each country has a different authority and some countries actually work on a comity basis in that they will execute a request in return for expecting assistance in the future. 

Generally, attorneys would file a motion in the U.S. Courts for a letter of request or letter rogatory, which foreign counsel and courts will then handle. For instance, if evidence is required from someone in France, the U.S. Court would issue a letter rogatory to a French court. The French court would then ensure that records are obtained and depositions are taken. 

U.S. attorneys should consider contracting with local counsel – attorneys familiar with the local laws and courts of the other country, to assist in this process. This is especially important because of evidentiary, privacy, and local case law issues. Additionally, U.S. attorneys may not be admitted in the foreign jurisdiction and would not be able to file the necessary orders with the court nor complete the depositions. Finally, local counsel may be familiar with the medical providers or employers, and be able to assist in expediting the process.

  • Do any countries cooperate to make information more readily available?

Yes, the Hague Service Convention, a treaty signed in 1965 allows for the use of standardized forms and practices that are recognized in 64 countries. The real benefit is that requests are processed much quicker and it is generally not necessary to hire a foreign attorney to help obtain information and depositions. A similar agreement is the Inter-American Convention on Letters Rogatory, which was signed by the United States and 18 other countries in 1975. The Inter-American Convention on Letters Rogatory includes many Latin American countries, commonly seen in South Florida personal injury litigation.

While both of these conventions streamline the process, there are still many countries that don't have a formal agreement with the United States. For instance, obtaining records in Jamaica can be a challenge. Jamaica requires oral depositions by a court appointed examiner accompany the production of records, sometimes requiring not only the engagement of Jamaican counsel, but also the presence of U.S. attorneys at depositions. 

  • How do foreign privacy laws affect discovery where the Plaintiff is a foreign sovereign?

The European Union and many of its constituent countries have established laws that protect personal information owned by its citizens. In 1995, the European Union established EU Directive 95/46/EC, protecting an individual's personal data and requiring consent of the individual prior to release of documents and requiring that the receiving party maintain the level of confidential protection the information is afforded in the European Union.

Many U.S. Courts have established a five part test to determine if the interests of the domestic court outweigh the foreign sovereign's privacy rights. The Restatement Third of Foreign Relations law recommends the following factors be considered:

    • The importance to the investigation or litigation of the documents or other information requested;
    • The degree of specificity of the request;
    • Whether the information originated in the United States;
    • The availability of alternative means of securing the information; and
    • 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 country where the information is located.
  • What happens if the records are not sent or incomplete records are received?

When the proper process is followed, foreign courts can compel full cooperation. However, there is always a risk that incomplete records are retrieved. Attorneys must carefully review records and depositions and, in the case of missing records, ask the courts to intervene. 

  • Why would a company resist requesting foreign records?

The whole process, from preparing motions, getting court orders issued, securing foreign counsel, and obtaining the records can be time consuming and expensive. A company would need to carefully weigh the costs of proceeding against the costs of a steep settlement. Attorneys at Rumberger, Kirk & Caldwell routinely help to analyze costs, screen overseas attorneys and determine if results will be available in a timely manner.

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.