Evidence gathering in aid of foreign proceedings in the US and England

Wednesday 4 August 2021

Andreas Frischknecht

Chaffetz Lindsey, New York

a.frischknecht@chaffetzlindsey.com

Sam Roberts

Cooke, Young & Keidan, London

sam.roberts@cyklaw.com

Introduction

More than 50 years ago, a treaty known as the Hague Evidence Convention[1] was negotiated under the auspices of the Hague Conference on Private International Law to facilitate cross-border cooperation in the taking of evidence in civil and commercial matters. Yet, even among the more than 60 countries that have ratified the Convention, the rules and practices for obtaining evidence vary widely. The differences between civil and common law jurisdictions are often especially pronounced. The types of evidence that may be obtained, and the procedures for doing so, differ significantly between the United States and England. This article aims to provide a practical overview of what litigants can expect in the US and England when seeking evidence for use abroad.

What procedures exist to gather evidence in aid of foreign proceedings?

The US perspective

For parties involved in (or contemplating) litigation anywhere in the world, US federal law offers a unique and powerful tool to obtain potentially relevant evidence in the US. A statute known as ‘28 United States Code (USC) section 1782’ allows parties to apply directly to a US federal district court for an order authorising discovery from any individual or entity within that judicial district.  

The foreign dispute need not have any connection with the US, and applicants may use section 1782 to obtain discovery from non-parties and (in some cases) even from parties to the foreign proceedings, as long as the person or entity from whom the discovery is sought ‘resides or is found’ within the judicial district. A non-resident will be deemed ‘found’ within the district if personally served with a subpoena while temporarily present there.[2] Domestic corporations are generally subject to section 1782 discovery at their place of incorporation or their principal place of business.[3] The Court of Appeals for the Second Circuit (which includes New York) has held that foreign corporations likewise may be subject to section 1782 discovery, provided that a sufficient connection exists between the corporation’s forum contacts and the evidence sought to satisfy due process.[4] 

Alternatively, evidence located in the US may be obtained through a letter of request under the Hague Evidence Convention if the state where the foreign proceeding is pending is a party to the Convention, or otherwise through letters rogatory.[5] 

The English perspective

The primary means by which the English court will support the gathering of evidence in aid of foreign proceedings is the examination (also known as a deposition) of a witness before an examiner of the court.

The taking of evidence in support of foreign litigation is governed by the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act).[6] The 1975 Act encompasses inbound letters of request, regardless of the international framework under which they are issued, or if there is no framework at all. The English court will usually treat inbound letters of request in the same way, regardless of whether they originate from a court in a jurisdiction which has ratified the Hague Convention, is a party to a bilateral treaty, or where there is no international treaty at all.[7] Section 1 of the 1975 Act gives the English court jurisdiction to order that evidence can be obtained in England in support of foreign litigation. At its simplest, the foreign court directs a letter of request to the English court, which produces an order requiring a witness to be examined.

In foreign-seated arbitrations, the precise procedure that must be followed differs, but the outcome is broadly the same as that under the 1975 Act. This procedure is addressed further below.  

A claimant or would-be claimant might be able to obtain documents from a third party ‘mixed up’ in the wrongdoing under what is known as the court’s Norwich Pharmacal jurisdiction, [8] albeit on the present state of the law this seems unlikely.[9] Even if such relief were available, the Norwich Pharmacal jurisdiction is an exceptional one and broad disclosure is not generally ordered.

Finally, non-party disclosure orders under rule 31.17 of the Civil Procedure Rules (CPR) are, on the present state of the law, likely not available to parties to foreign litigation[10] and, although an alternative procedure for obtaining documents from non-party financial institutions exists as something of a legal relic under the Bankers Books Evidence Act 1879, it has very recently been decided (albeit at first instance) that the procedure cannot be used to obtain documents in support of foreign proceedings.[11]

What types of evidence can be obtained?

The US perspective

Section 1782 permits applicants to seek a witness’s ‘testimony or statement’ or the production of ‘a document or other thing’.[12] The vast majority of section 1782 applications seek the production of documents and/or depositions (ie, witness examinations by counsel under oath). Applicants are not limited to seeking only specifically identified documents. Instead, most applicants seek entire categories of documents using words like ‘any’ and ‘all’.[13] Moreover, the statute provides additional flexibility by authorising district courts to order the production of any ‘other thing’. For example, courts have ordered DNA testing under section 1782 in aid of foreign paternity proceedings.[14]

The English perspective

Generally speaking, only witness testimony can be obtained in support of foreign litigation. Except in very narrow respects, documents cannot be obtained. This is not obvious on the face of section 2 of the 1975 Act, which appears to give the English court the broad power to order the examination of witnesses, either orally or in writing, and the production of documents.[15]

However, this is all subject to the very important caveat buried in subsection 2(3) of the 1975 Act that the English court cannot order wider relief under subsection 2(2) than it could order by way of witness summons (formerly a subpoena) in English litigation. Documentary disclosure in response to a witness summons is much more limited than a party would ordinarily be required to give in English commercial litigation, and is essentially limited to specifically identified documents. A non-party therefore cannot be ordered to give disclosure equivalent to what parties in English litigation would ordinarily be expected to give. Describing documents by class and use of words such as ‘any’ and ‘all’ should be avoided. Documents which might be obtainable could include bank statements for a specific account, contracts known to exist or correspondence known to have been sent.

The ability to obtain documents from non-parties under the 1996 Act is similarly limited.  

For what types of foreign proceedings are these procedures available?

The US perspective

Every application for section 1782 discovery must satisfy three statutory requirements:

  1. as discussed above, the person or entity from whom discovery is sought must reside or be ‘found’ in the judicial district in which the court sits;
  2. the discovery sought must be ‘for use’ in a proceeding before a ‘foreign or international tribunal’; and
  3. the applicant must be either an ‘interested person’ or the ‘foreign or international tribunal’ itself.[16]

If the applicant satisfies these threshold statutory requirements, district courts have discretion to grant or deny section 1782 discovery after considering the following four factors (known as ‘Intel factors’ because they derive from a 2004 United States Supreme Court decision involving the computer chip manufacturer Intel):

  1. whether ‘the person from whom discovery is sought is a participant in the foreign proceeding’ (since the need for section 1782 discovery is less ‘apparent’ in that circumstance than where ‘evidence is sought from a non-participant’);
  2. ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance’;
  3. whether the request for discovery ‘conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States’; and
  4. whether the request is otherwise ‘unduly intrusive or burdensome.’[17]

No single factor is dispositive, nor is the applicant required to establish that all four factors weigh in favor of granting discovery.

The availability of section 1782 discovery not only in aid of pending, but also of reasonably contemplated future litigation, is well established.[18] The Courts of Appeals for the Second and the Eleventh Circuits have held that there is ‘no per se bar’ to discovery of documents located outside the US, as long as they are within the possession, custody, or control of the person or entity from whom discovery is sought and the other requirements for section 1782 discovery are satisfied.[19] 

In contrast, the availability of Section 1782 discovery in aid of international commercial arbitrations has remained controversial. The Courts of Appeals for the Second, Fifth and Seventh Circuits have held that section 1782 discovery is unavailable in aid of private international arbitrations,[20] while the Fourth and Sixth Circuits have reached the opposite conclusion.[21] However, the United States Supreme Court recently granted review of the Seventh Circuit’s decision.[22] Unless the case becomes moot before the Supreme Court has an opportunity to rule on it,[23] the Court’s decision (expected by June 2022) should resolve this issue once and for all. 

The English perspective

In England, the procedures vary slightly depending on whether the foreign proceedings are litigation or a foreign-seated arbitration. The procedure under the 1975 Act is available to parties to foreign litigation (and, where the 1975 Act applies, the foreign litigation must be civil or commercial in nature).[24]

It is not available in foreign-seated arbitration because the arbitral tribunal lacks the power to issue a letter of request.[25] However, it has recently been established as a matter of principle that orders for the taking of evidence can be made against non-parties to the arbitration under section 44 of the Arbitration Act 1996 (the 1996 Act).[26]

How does the process work?

The US perspective

US district courts frequently decide applications for section 1782 discovery ex parte (ie, without hearing from or even notifying the individual or entity from whom discovery is sought).[27] If the court is satisfied that section 1782 discovery is appropriate, it will issue an order authorising the applicant to serve a subpoena for the production of documents and/or depositions on the target individual or entity. The applicant may enforce the subpoena in the same manner as a subpoena issued in an ordinary civil action. 

Applicants typically can expect a fairly quick ruling (within weeks, not months) on an ex parte application. Once served, the discovery target has the burden of moving to quash (ie, set aside) the resulting subpoena if it wishes to challenge the propriety of section 1782 discovery.[28] It may take several months for the district court to resolve the respondent’s objections, particularly where it raises a colourable argument against discovery. A final order granting or denying section 1782 discovery is immediately appealable to the court of appeals for the judicial circuit in which the district court sits.[29] However, an order authorising discovery is enforceable in the meantime unless the district court grants a stay pending appeal.[30] 

For letters of request under the Hague Evidence Convention, the US Department of Justice’s Office of International Judicial Assistance serves as the United States’ Central Authority under the Convention and handles incoming letters of request.[31] The Department typically seeks the witness’s voluntary testimony.[32] If the witness is uncooperative, the Assistant US Attorney handling the request must then apply for a court order pursuant to section 1782, authorising a subpoena to compel the witness’s testimony.[33] 

The English perspective

For incoming letters of request, the process is set out in Part II of Practice Direction 34 of the CPR. The letter of request can be transmitted through diplomatic channels, or (if timing is of concern to the applicant, as it usually is) then an application to the English court for an order can be made under CPR Part 23. Applications under section 1 of the 1975 Act can be made ex parte, but need not be. Where they are made ex parte, the applicant will have a duty to give full and frank disclosure to the Court: any breach of that duty could involve the order being set aside.

Applications in support of foreign-seated arbitrations first require either the permission of the arbitral tribunal or the agreement of the other parties to the arbitration to make the application. From there the application will take a similar form to the process under the 1975 Act but must be made fully on notice[34] to the witness, the other parties to the arbitration and the tribunal itself.[35] Applications under the 1996 Act must be issued in the Commercial Court[36] under CPR Part 62.

Successful applications under either avenue will result in broadly the same procedure – an examination (or deposition) before an examiner under Practice Direction 34.[37] The application process is likely to take several months from the letter of request being issued, or the tribunal permitting (or other parties agreeing to) the section 44 application, as the case may be, and opposition to the application and any appeals will inevitably contribute to that.

What practical considerations should clients and their counsel bear in mind?

The US perspective

Although most litigants will prefer section 1782 discovery over the more cumbersome letter of request or letters rogatory procedure, counsel should consider whether the foreign court will accept evidence obtained through section 1782 without that court’s involvement. If the foreign court is unlikely to accept such evidence (or would give it less weight), a letter of request or letters rogatory may be the only viable option.[38] 

Applicants seeking section 1782 discovery for use in contemplated future proceedings should take care to provide the US court with more than just a ‘speculative’ statement of their intent to commence proceedings.[39] For example, applicants should consider identifying the nature of their claims and the legal theory they intend to pursue.[40] 

As for costs, the general rule in the US is that the party from whom discovery is sought bears the cost of compliance with a valid subpoena (such as the cost of retrieving, reviewing and producing responsive documents). However, depending on the circumstances and particularly where the cost of compliance is substantial, courts have discretion to require section 1782 applicants to bear at least a portion of the producing party’s costs.[41] On the other hand, consistent with the American rule that each party ordinarily must bear its own attorneys’ fees, applicants typically are not required to pay the respondent’s attorneys’ fees even if the court denies the application.

Finally, a section 1782 application should be appropriately tailored and should not sweep more broadly than necessary. The US court may deny an application that appears to be nothing more than a speculative ‘fishing expedition’,[42] or it may exercise its discretion to require the applicant to pay some of the producing party’s costs. 

The English perspective

Regardless of whether the application is made under the 1975 Act or 1996 Act, the costs will be non-negligible where the application is opposed – particularly if both the witness and other parties to the substantive claim oppose it. Applicants should expect costs similar to those of an opposed injunction application. Because losing litigants will also ordinarily be ordered to pay the legal costs of their successful opposition, these applications carry significant cost risk. 

For applications under the 1996 Act, where the other parties to the arbitration cannot be served with the application as of right under CPR Part 6 (ie, where they are not located in England, broadly speaking), then it will also be necessary to make an application for permission to serve the application out of the jurisdiction on those parties under CPR 62.5.

Examiners may accept appointments by private agreement without the need to apply to the Foreign Process Section, which could save valuable time.[43] If overseas lawyers will conduct the examination, it would be prudent to provide in the order for the examination that those lawyers will have permission to do so.[44]

Finally, it should be borne in mind that the examiner will not play the role of a judge and will not determine issues of admissibility or privilege or have the ability to declare a witness hostile.[45] ​​​​​​​

Conclusion

Despite the differences, the practical bottom line in both the US and England is very similar: foreign litigants with reason to believe that relevant evidence may exist in either country should carefully consider what evidence is available, how to go about obtaining it and how best to deploy it in the foreign proceedings. Counsel should consider these issues as early as possible (if feasible, even before the foreign proceedings have commenced).

Lastly, communication between the parties’ foreign and US or English counsel is essential to ensure that the evidence obtained is in a form that maximises its probative value and usefulness in the foreign proceedings.

 

[1] Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters; see www.hcch.net/en/instruments/conventions/status-table/?cid=82, accessed 12 July 2021.

[2] See In re Edelman, 295 F.3d 171, 180 (2d Cir. 2002) (‘[W]e hold that if a person is served with a subpoena while physically present in the district of the court that issued the discovery order, then for the purposes of s. 1782(a), he is ‘found’ in that district.’). 

[3] See generally Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (explaining that a corporation’s ‘place of incorporation and principal place of business’ are the equivalent of an individual’s domicile). 

[4] In re del Valle Ruiz, 939 F.3d 520, 523 (2d Cir. 2019) (holding that personal jurisdiction under section 1782 extends ‘to the limits of . . . due process’). Specifically, the Second Circuit held that ‘where the discovery material sought proximately resulted from the respondent’s forum contacts, that would be sufficient to establish specific jurisdiction for ordering discovery’ in any event. Ibid. at 530. And ‘where the respondent’s contacts are broader and more significant, [the applicant] need demonstrate only that the evidence sought would not be available but for the respondent’s forum contacts.’ Ibid. 

[5] US law permits (but does not require) incoming letters rogatory to be submitted through the US State Department.  See 28 USC. s. 1781.

[6] Prior to 1 January 2021, when the Brexit transition period ended, English courts were also bound by the European regime on cross-border taking of evidence – Regulation (EC) 1206/2001, known as the Taking of Evidence Regulation. Although the terms of the UK’s departure mean that this Regulation will still apply to letters of request received before the end of the transition period (ie, by 11pm GMT on 31 December 2020), it has no relevance to requests received after that time. Accordingly, no more is said about it here.

[7] Litigants before the courts of EU Member States can therefore still seek the assistance of the English court with letters of request, notwithstanding the inapplicability of the Taking of Evidence Regulation following the end of the Brexit transition period, albeit the procedure under the Hague Convention is less modern.

[8] Norwich Pharmacal v Commissioners of Customs & Excise [1974] UKHL 6. This is an exceptional jurisdiction that allows claimants to obtain documents and information from third parties who have become involved in wrongdoing, but who are themselves not likely to become a defendant to that claim. A classic application of the jurisdiction is where a victim of fraud identifies that funds have been transferred by a fraudster from the victim’s bank account into an account with a third party bank. The bank is ‘mixed up’ in the wrongdoing, and for the purposes of the victim’s claim against the fraudster, is in a position to give vital information about the account holder and any onward payments to the claimant to allow it to trace its assets and quite likely to bring a substantive claim against the fraudster. A bank in that situation is unlikely to consider that it can give that disclosure voluntarily due to duties of confidentiality to the customer, so involving the court is usually necessary. However, banks will usually not object to an appropriately narrow application, either.

[9] Mr Justice Flaux (as he then was – since February 2021 he has been serving as Chancellor of the High Court) held in Ramilos Trading Ltd v Buyanovsky [2016] EWHC 3175 that the Court’s Norwich Pharmacal jurisdiction was unavailable where the 1975 Act applies. In that case, foreign proceedings were only in contemplation and no letter of request had been issued. Although the Ramilos decision is only a first instance one and has not been approved at appeal level, it follows the Court of Appeal’s decision in R. (on the application of Omar) v Secretary of State for Foreign and Commonwealth Affairs [2011] EWCA Civ 1587, which held that the Crime (International Cooperation) Act 2003 (which is analogous to the 1975 Act but for use in criminal cases) had ousted the common law Norwich Pharmacal procedure where that Act applied.

[10] However, leading commentators have questioned whether the introduction of CPR r. 31.17 into English civil procedure (which introduction post-dated the 1975 Act) ought to mean that wider documentary disclosure should be available from non-party witnesses targeted by a letter of request.

[11] Meng v HSBC Bank Plc & Ors [2021] EWHC 342 (QB) (19 February 2021)

[12] 28 USC s. 1782(a).

[13] See eg, Mees v. Buiter, 793 F.3d 291, 302 (2d Cir. 2015) (under s. 1782, courts must determine ‘whether a request is intrusive or burdensome’ based on ‘the familiar standards of Rule 26 of the Federal Rules of Civil Procedure’ rather than ‘the ‘discovery scope’ available in the foreign proceeding’). 

[14] Such DNA testing has typically been at the request of the foreign court.  See eg, In re Request for Int’l Jud. Assistance from the Norrköping Dist. Ct., Sweden, 219 F. Supp. 3d 1061, 1062 (D. Colo. 2015) (granting application for ‘an order appointing a representative from the United States Department of Justice as commissioner to secure [DNA] evidence from [an individual] for use in a paternity proceeding before the Norrköping District Court, Sweden’).

[15] Subsections 2(2)(a) to (b) of the 1975 Act. Subsections 2(2)(c) to (f) also empower the court to make orders for the inspection, photographing, preservation, custody or detention of any property; the taking of samples of any property and the carrying out of any experiments on or with any property; the medical examination of any person; and the taking and testing of samples of blood from any person.

[16] 28 USC. s. 1782(a).

[17] Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004).

[18] See Intel, 542 U.S. at 247 (‘[T]he ‘proceeding’ for which discovery is sought under s. 1782(a) must be in reasonable contemplation, but need not be “pending” or “imminent.”’).    

[19] See Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194, 1200 (11th Cir. 2016); accord In re del Valle Ruiz, 939 F.3d 520, 533 (2d Cir. 2019) (‘[W]e join the Eleventh Circuit in holding that a district court is not categorically barred from allowing discovery under s. 1782 of evidence located abroad.’). 

[20] See Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689, 696 (7th Cir. 2020) (‘[W]e join the Second and Fifth Circuits in concluding that s. 1782(a) does not authorize the district courts to compel discovery for use in private foreign arbitrations.’); In Re Guo, 965 F.3d 96, 103 (2d Cir. 2020) (reaffirming holding in an earlier case ‘that private arbitrations do not qualify as ‘foreign or international tribunal[s]’ within the meaning of s. 1782(a)’) (citing Nat'l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 191 (2d Cir. 1999)); El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F. App’x 31, 33-34 (5th Cir. 2009) (concluding that ‘we remain bound by our holding’ in an earlier case that ‘a ‘tribunal’ within the meaning of s. 1782 did not include a private international arbitral tribunal’) (citing Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999)). 

[21] See Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 216 (4th Cir. 2020) (holding that tribunal in English-seated arbitration under the Rules of the Chartered Institute of Arbitrators was ‘a ‘foreign or international tribunal’ under s. 1782(a)’); In re Application to Obtain Discovery for Use in Foreign Proc., 939 F.3d 710, 731 (6th Cir. 2019) (holding that tribunal in Dubai-seated arbitration under the rules of the Dubai International Financial Centre-London Court of International Arbitration was ‘a ‘foreign or international tribunal,’ and [that] the district court may order s. 1782(a) discovery for use in the proceeding before that panel’).     

[22] See Servotronics, Inc. v. Rolls-Royce PLC, No. 20-794, 2021 WL 1072280 (U.S. Mar. 22, 2021).

[23] ‘US Supreme Court to decide whether 28 U.S.C. § 1782 includes international arbitration’ (DLA Piper, 24 March 2021), see www.dlapiper.com/en/us/insights/publications/2021/03/us-supreme-court-to-decide-whether-28-usc-1782-includes-international-arbitration/ (‘[B]y the time the Supreme Court hearing is scheduled to take place, it is likely that the underlying arbitration may already have been resolved, and the issue may therefore become moot.’). 

[24] The litigation must be considered to be civil or commercial both from the perspective of the jurisdiction of the requesting court, and from the perspective of the English court: Re State of Norway’s Application (Nos 1 and 2) [1990] 1 AC 723

[25] Commerce and Industry Insurance v Certain Underwriters at Lloyd's [2002] 1 WLR 1323

[26] A and B v C, D and E [2020] EWCA Civ 409 (19 March 2020)

[27] Gushlak v. Gushlak, 486 F. App’x 215, 217 (2d Cir. 2012) (‘[I]t is neither uncommon nor improper for district courts to grant applications made pursuant to s. 1782 ex parte.’).

[28] Ibid. 

[29] See In re Naranjo, 768 F.3d 332, 346 (4th Cir. 2014) (‘Every other circuit court that has considered the jurisdictional issue presented here has found subject matter jurisdiction to hear an immediate appeal from an order on a s. 1782 application.’) (collecting cases). 

[30] See In re Gorsoan Ltd., No. 18-MC-431 (RA) (KNF), 2020 WL 3264159, at *2 (S.D.N.Y. June 17, 2020) (absent a stay, an order authorizing section 1782 discovery ‘remains operative and the district court retains power to enforce it throughout the pendency of the [respondent’s] appeal’). 

[31] See www.justice.gov/civil/evidence-requests, accessed 12 July 2021.

[32] Edward C. Weiner, In Search of International Evidence: A Lawyer’s Guide Through the United States Department of Justice, 58 Notre Dame L. Rev. 60, 66 (1982) (‘[T]he Civil Division seeks wherever possible to obtain a witness’ testimony through his voluntary cooperation. To that end, the Assistant US Attorney to whom a foreign letter of request is referred for execution is encouraged to contact the witness, advise him of the nature of the request, and ascertain whether he will agree to furnish his responses informally, in affidavit form. If the witness agrees to this procedure, no court order is necessary.’). 

[33] Weiner, supra note 27 (noting that the court’s s. 1782 order ‘can designate as ‘commissioner’ a United States Magistrate (the preferred method) or the Assistant U.S. Attorney’).

[34] Although the 1996 Act on its face appears to allow applications to make without notice applications in cases of urgency, closer scrutiny reveals this is only where the purpose of the application is to preserve evidence or assets, and not to take the evidence of witnesses.

[35] CPR r. 62.6(2) provides that notice may be given to the tribunal by sending it a copy of the arbitration claim form and any written evidence in support. The consequence of rule 62.6(3) is that the other parties to the arbitration are to be given notice by making them defendants to the s.44 application.

[36] Procedure in the Commercial Court is governed by Part 58, which requires an acknowledgment of service to be filed by a respondent to an arbitration claim in every case. This is made clear by Paragraph O13.1(a) of the Admiralty and Commercial Court Guide, Tenth Edition (2017). The consequence of this is that a respondent has 21 days from filing its acknowledgment of service to prepare its evidence, not 21 days from service of the arbitration claim form.

[37] Albeit the different categories of deposition in Practice Direction 34, under paragraphs 4.1, 5.1 and 6.1, do not expressly address depositions to be taken in England and Wales for use as evidence in arbitrations seated abroad. However, because s. 44 Arbitration Act empowers the court to act in support of arbitrations by reference to the ‘same powers’ that it has in (English) legal proceedings, it is submitted that the rules governing depositions taken in England and Wales for use as evidence in proceedings in courts in England and Wales apply by analogy.

[38] See In re Letters of Request From Supreme Ct. of Hong Kong, 821 F. Supp. 204, 211 (S.D.N.Y. 1993) (‘In cases of involuntary cooperation, testimony [sought through a letter of request] may be compelled under s. 1782, which allows for the appointment of a Commissioner to preside over the taking of the evidence in order to make the evidence more admissible in the courts of the country requesting such; it is a device to bridge the gap between international differences in civil and criminal procedure.’).

[39] Certain Funds, Accts. &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 124 (2d Cir. 2015).

[40] See Mangouras v. Squire Patton Boggs, 980 F.3d 88, 101 (2d Cir. 2020). 

[41] Cost sharing may be ‘appropriate to protect the [producing party] from incurring undue expense’ where its costs are expected to be ‘substantial.’ In re T-Systems Scheiz [sic] AG, No. 1:20-MC-308-GHW, 2020 WL 7384007, at *2 (S.D.N.Y. Dec. 16, 2020) (explaining that, ‘[i]n evaluating the allocation of costs under Section 1782, the Court can look to cases considering similar issues under Fed. R. Civ. P. 45’). 

[42] See Ahmad Hamad Algosaibi & Bros. Co. v. Standard Chartered Int’l (USA) Ltd., 785 F. Supp. 2d 434, 438 (S.D.N.Y. 2011) (‘[A]s with discovery requests in domestic litigation, if a court “suspects that the [s. 1782 discovery] request is a ‘fishing expedition’ or a vehicle for harassment, the district court should deny the request.”’) (quoting In re Order Permitting Metallgesellschaft AG to Take Discovery, 121 F.3d 77, 79 (2d Cir.1997)).

[43] Despite what is said at paragraph 4.2(1) of Practice Direction 34.

[44] Otherwise the examiner may take the view that they are not qualified to do so, the examination being an extension of English court procedure.

[45] R v Rathbone, ex p Dikko; Noga Commodities (Overseas) Inc v Rijn Maas-En Zeescheepvaartkantoor NV [1985] QB 630.

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