Dear Hague Evidence Convention:
This letter pains me. In the past several weeks I’ve written several posts extolling the virtues of your convention siblings governing serving process abroad and legalizing documents for use overseas– the Hague Service Convention and the Hague Legalization Convention.
These two conventions have worked very well to simplify and streamline areas that were previously cumbersome and time consuming.
Black Sheep of Hague Convention Family
However, I take exception with you, Hague Evidence Convetion, the black sheep of the Hague Convention family.
Although your purpose and mission was to reconcile the differing legal philosophies of the Civil Law, Common Law and other systems with regard to the taking of evidence, in practice you have been largely ineffective for U.S. litigants and other signatories.
Yes, I know. Given your status as a ratified treaty, you stand on par with the Federal Rules of Civil Procedure and other federal statutes as "the supreme law of the land" in this country. I’ve heard it all before.
I Thought You Were Special
I’ll never forget when I first heard that you’re comprised of three chapters: the first concerning Letters of Request; the second involving the use of Diplomatic Officers, Consular Agents and Commissioners to obtain evidence; and the third containing provisions of general application and certain relevant exclusions.
Not one. Or two. But THREE whole chapters dedicated to harmonizing international evidence rules!
It seemed as if I had won the international evidence gathering lottery. Surely, my days as a frustrated international evidence gatherer were over–no more Letters Rogatory!
But then I read your Article 23, which lets member states opt out of pre-trial discovery. I almost tore a service convention apostille in half when I learned that most of your signatories have made such declarations, severely limiting the efficacy of your mechanisms on U.S. litigants who live and die by pre-trial discovery.
Further rendering you largely ineffective, is Article 33, which lets member states opt out of the deposition mechanisms provided for in Chapter 2. No surprise here, a number of contracting states have also expressly limited, or excluded in whole, this method of discovery.
When the reality hit that your Article 23 & 33 exceptions for all intents and purposes, rendered you fruitless and that I’d soon return to my local rules of evidence, I was overcome with guilt. How could I have considered leaving the ever loyal and faithful federal discovery mechanisms?
Federal Rules 26 and 34, for example, have proven to be invaluable in getting documents located outside the U.S. And federal statutes such as 28 USC § 1782, have been an extraordinary resource in obtaining U.S. sourced documents in aid of foreign proceedings.
Sure there are some issues that arise sometimes and they do not always work, but by and large, the federal discovery mechanisms are more than sufficient for my international evidence gathering needs.
Thanks for Nothing, Hague Evidence Convention. I’m sticking with the Federal Rules.