eDiscovery Daily Blog

eDiscovery Trends: Protocol for International eDiscovery Based on 41 Year Old Treaty


Last week, we talked about several challenges of international eDiscovery, including different laws regarding discovery practices, as well as cultural and privacy issues.  This week, we will talk about one of the primary mechanisms for conducting discovery internationally – the Hague Convention.

What is the Hague Convention? The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters – commonly known as the Hague Evidence Convention – is an international treaty created by the Hague Conference on Private International Law. It was negotiated in the late 1960's and signed on March 18, 1970.

There are 54 countries contracted to the Hague Convention, which means they have agreed to permit international attorneys to request evidence across foreign borders without first requiring that they pursue diplomatic approval. U.S. attorneys often rely on the provisions of the Hague Evidence Convention when conducting cross-border eDiscovery requests. As a result, they can save time and paperwork by avoiding consular and diplomatic channels and corresponding directly with legal counsel and individuals in international countries where the Hague Convention has been ratified.

Although it can simplify the process of requesting eDiscovery across borders, the Hague Convention does not guarantee that international discovery requests will be honored, in part or at all. Foreign courts in receipt of discovery requests will often exercise their own judgment in responding, based on the laws of their own nation states. As a result, eDiscovery requests may be refused or misinterpreted without any penalty under the Hague Convention. What's more, some of the countries that have signed choose to exert limits on the extent to which they agree with the Hague Convention, further complicating matters in cases where international eDiscovery is required from groups or individuals within these nations' borders. Use of the Hague Convention may be slow, inefficient, and does not guarantee results.

The U.S. was instrumental in the creation of the Hague Convention and one of the first countries to adopt it.  However, many international parties requesting information in the U.S. now do so via Section 1782 Discovery. This simpler provision in Section 1782 of Title 28 of the United States Code facilitates discovery cases where a document or electronic information is located in the U.S.  We will talk about this federal statute in more detail in our next post regarding international eDiscovery.

So, what do you think? Does the Hague Convention simplify the discovery process internationally, or is it time for a new, more up-to-date treaty or provision to facilitate international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

Happy Independence Day from all of us at eDiscovery Daily and Trial Solutions!