SPRING 2019 TODAY’S GENER AL COUNSEL
English Courts Possess Powerful Tools for U.S. Litigation By Lesley Timms, James E. Nealon and Elisa Wahnon
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his article focuses on two potent interim remedies that an English court can grant in aid of U.S. court proceedings: (1) obtaining evidence or documents from a witness/non-party resident in England or Wales through the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Evidence Convention); and (2) obtaining injunctive relief in the form of a Worldwide Freezing Order (formerly known as a Mareva Injunction) from the English court over parties or assets resident within or outside of England.
Hague Evidence Convention
documents, which can be obtained with a Letter of Request (LOR). A U.S. litigant first applies to the U.S. court for a formal LOR to the English court for judicial assistance under the Hague Evidence Convention. It should identify the witness, contain details of the claim and explain why the evidence sought is necessary to resolve the issues before the U.S. court. If a U.S. litigant is seeking a deposition from a witness in the UK, the letter should contain a list of the questions that will be put to the witness (although this does not mean a U.S. litigant will be confined to asking only those questions). It also should indicate whether the evidence is to be taken on oath and how the examination will be recorded. If the U.S. litigant is seeking production of documents from the witness, the LOR should state the particular documents sought and why the applicant believes they exist and are in the possession of the other person. By contrast, the equivalent procedure in the U.S. under 28 USC has a much broader scope. Unlike Hague Convention procedures, Section 1782 does not require that an applicant first seek the
The Letter of Request should state the particular documents sought and why the applicant believes they are in the possession of the other person.
A party to U.S. proceedings can make an application to the English court under the Hague Evidence Convention to obtain documents and/ or evidence from a party, non-party or witness resident in the jurisdiction. Evidence can include examination of witnesses (orally or in writing); production of documents; inspection, preservation, custody or sampling of any property; and medical examination of any person, including taking blood samples. The most common types of evidence sought are depositions and disclosure of
