September 26, 2013
In the prior installment in this series on foreign and non-judicial e-discovery, we discussed specific rules that pertain to collection of evidence in civil law jurisdictions. In this post I want to look at a few sample countries and how they approach discovery.
In Brazil a Letter Rogatory (but not a Letter of Request) regarding discovery will be processed before the Superior Court of Justice (“STJ”) and will be accepted if certain requirements are satisfied. First the Letter Rogatory must be rendered an empowered authority. Second, the parties must have been regularly served. Third, the order must not have been declared improper by the issuing court. Fourth, an original of the order or a copy thereof must be duly notarized and consularized by the diplomatic representation by the country where the order is to be enforced. Finally, the order must not represent violation to the national sovereignty or the public order.
Further, the Superior Court of Justice may reduce the scope of the request for evidence production in order to comply with Brazilian Law. The party seeking enforcement of a foreign order regarding discovery has to specifically identify the documents that should be disclosed, the witnesses to be heard, and provide full information regarding any other evidence that it wishes to be produced.
In Mexico the party seeking the production of evidence through discovery must specifically identify the content and location of the evidence. Under the Mexican Civil Procedural Law, generic requests for information issued by foreign courts are prohibited. The Mexican Commercial Code provides that merchants must store all electronic correspondences and data for at least 10 years. The party seeking discovery has the burden of proving the existence of such document, thereby preventing any and all “fishing expeditions”.
In France, law No. 80-538 of July 16, 1980, also known as the Blocking Statute, forbids any person from obtaining or attempting to obtain, either in writing or orally, any economic, commercial, industrial, financial, or technical information that are to be used as evidence in judicial or administrative proceedings abroad. Non-compliance comes with a harsh six month prison sentence and/or a fine of 18,000 Euros. The only exception to the Blocking Statute is discovery obtained in accordance with the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (discussed in the prior post in this series).
In order to avoid conflict of sovereignty when evidence production in sought in a Civil Law country, it is recommended that the parties follow the provisions set forth in the Hague Convention, as discussed in the previous post. In the next post I will begin the discussion on non-judicial use of e-discovery by looking at international arbitration rules.