Gathering Evidence in Aid of Foreign Litigation Guide |
|
Puerto Rico |
|
|
(Latin America/Caribbean)
Firm
McConnell Valdés LLC
Contributors
Juan Marqués-Díaz |
|
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Puerto Rico’s local laws do not expressly regulate the gathering of evidence in aid of foreign litigation. However, by virtue of being a territory of the United States, Puerto Rico is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Moreover, federal law, applicable in Puerto Rico’s federal district courts, expressly permits the gathering of evidence in aid of foreign litigation. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes. Puerto Rico, as a territory of the United States, is a party to the Hague Evidence Convention. A foreign litigant can follow the procedure set forth in the Hague Evidence Convention, as applicable to the United States, or, in the alternative, it may pursue discovery from a witness who resides or is found in Puerto Rico under 28 U.S.C. § 1782. That statute expressly establishes four requirements that must be met to obtain evidence in aid of foreign litigation. These requirements are: (1) that the person from whom discovery is sought “resides or is found” in the district where the court sits; (2) that the request seeks evidence (the “testimony or statement” of a person or the production of a “document or thing”) “for use in a proceeding in a foreign or international tribunal”; (3) that the request is made by a foreign or international tribunal or by “any interested person”; and (4) that the material sought not to be protected by “any legally applicable privilege”. In re Schlich, 893 F.3d 40, 46 (1st Cir. 2018). If these four statutory requirements are met, the district court is authorized, but not required, to provide judicial assistance by permitting discovery. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. If the request is made via a formal request pursuant to the Hague Evidence Convention, then the request must be submitted to, and approved by, the United States’ central authority pursuant to that convention, to wit, the Office of International Judicial Assistance (“OIJA”). In the alternative, an interested party may file a motion pursuant to 28 U.S.C. § 1782(a) to request a U.S. District Court sitting in Puerto Rico to issue an order compelling a witness to provide evidence in aid of a foreign proceeding, subject to the district court’s approval. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Pursuant to both the Hague Evidence Convention as well as 28 U.S.C. § 1782(a), the production of documents, written questions and oral testimony may be sought as a means of aiding foreign litigation. However, if a request is made pursuant to the Hague Evidence Convention, then the method of obtaining witness testimony will be through answers to written interrogatories unless a deposition is specifically sought. |
| Who bears the burden of showing whether any privileges apply? | If the request is made pursuant to the Hague Evidence Convention, then the requesting authority must provide instructions as to whether any privileges are applicable. Similarly, if the request is made pursuant to 28 U.S.C. § 1782(a), then the fourth factor which the requesting party must establish involves whether the material sought is not protected by any legally applicable privilege. However, 28 U.S.C. § 1782(a) states that “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege”. Moreover, if a request is made pursuant to the Hague Evidence Convention, and the witness must be compelled to provide the requested evidence, then the United States Attorney’s Office must initiate judicial proceedings in the United States under 28 U.S.C. § 1782. Consequently, regardless of whether the requesting party resorts first to the Hague Evidence Convention or 28 U.S.C. § 1782(a), the witness will be able to raise any applicable privileges, independently of whether the requesting party alleged them or not. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | If the request is made by virtue of the Hague Evidence Convention, then the person concerned may refuse to give evidence in so far as he or she has a privilege or duty to refuse to give the evidence under the law of the state of execution or under the law of the state of origin. See 28 U.S.C. § 1781. On the other hand, while the second factor of 28 U.S.C. § 1782(a) requires that the requesting party seek evidence “for use” in a proceeding in a foreign or international tribunal, it is well settled that the petitioner is not required to show that the information he or she seeks would be discoverable or admissible in the foreign litigation. See In re Tovmasyan, 2021 WL 3737184 at *4 (D.P.R. August 20, 2021). |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Rule 27.4 of the Puerto Rico Rules of Civil Procedure allows the taking of a deposition via any remote electronic means, such as telephone or videoconference, if the parties stipulate that the deposition will be taken via said means or if the court orders as much. Similarly, by virtue of Rule 30(b)(4) of the Federal Rules of Civil Procedure, parties may stipulate, or the court may on motion order, that a deposition be taken by telephone or other remote means. On the other hand, the United States does not permit the direct taking of evidence by video link under Chapter I of the Hague Evidence Convention. If a witness is to be compelled to provide evidence under Chapter I of the Hague Evidence Convention, a Department of Justice attorney will be the one who obtains the testimony by directly asking the witness the questions provided by the foreign court. The United States does permit the direct taking of evidence by video-link on a voluntary basis under Chapter II of the Hague Evidence Convention, but only if the arrangements are agreed upon privately, in which case the United States’ central authority will not be involved. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No. The United States has not adopted any blocking statute that would be applicable to Puerto Rico. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Yes. Applicable law, 28 U.S.C. § 1782, specifically states that “[t]his chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable him”. Puerto Rico’s local laws do not address this issue. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Although 28 U.S.C. § 1782 specifically requires that the testimony, statement, or document requested be “for use in a proceeding in a foreign or international tribunal,” the concept “tribunal” is to be interpreted broadly, encompassing “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004). Currently, there exists, at the federal appellate court level, a circuit split as to whether 28 U.S.C. § 1782(a) also encompasses private commercial arbitral tribunals. The case ZF Automotive US, Inc. et al. v. Luxshare, LTD, 2021 WL 5858630 (U.S. 2021), which the Supreme Court of the United States agreed to review in the October 2021 term, is likely to resolve this circuit split, but an opinion has yet to be issued in that case. On the other hand, whether discovery in aid of a foreign arbitration would be available pursuant to the Hague Evidence Convention will likely depend on the laws of the state in which the requesting authority is located. See, e.g., ValuePart, Inc. v. Farquhar, 2016 WL 11333443 (N.D. Ill. East. Div. March 29, 2016) (wherein a district court refused to submit a letter rogatory on behalf of a party seeking to obtain oral testimony from two non-party witnesses located in Italy, as the evidence was to be used in a private arbitration proceeding governed by the Federal Arbitration Act). |
Gathering Evidence in Aid of Foreign Litigation Guide
Puerto Rico
(Latin America/Caribbean) Firm McConnell Valdés LLCContributors Juan Marqués-Díaz
Updated 24 Mar 2022Puerto Rico’s local laws do not expressly regulate the gathering of evidence in aid of foreign litigation. However, by virtue of being a territory of the United States, Puerto Rico is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). Moreover, federal law, applicable in Puerto Rico’s federal district courts, expressly permits the gathering of evidence in aid of foreign litigation.
Yes. Puerto Rico, as a territory of the United States, is a party to the Hague Evidence Convention. A foreign litigant can follow the procedure set forth in the Hague Evidence Convention, as applicable to the United States, or, in the alternative, it may pursue discovery from a witness who resides or is found in Puerto Rico under 28 U.S.C. § 1782. That statute expressly establishes four requirements that must be met to obtain evidence in aid of foreign litigation. These requirements are: (1) that the person from whom discovery is sought “resides or is found” in the district where the court sits; (2) that the request seeks evidence (the “testimony or statement” of a person or the production of a “document or thing”) “for use in a proceeding in a foreign or international tribunal”; (3) that the request is made by a foreign or international tribunal or by “any interested person”; and (4) that the material sought not to be protected by “any legally applicable privilege”. In re Schlich, 893 F.3d 40, 46 (1st Cir. 2018). If these four statutory requirements are met, the district court is authorized, but not required, to provide judicial assistance by permitting discovery.
Yes. If the request is made via a formal request pursuant to the Hague Evidence Convention, then the request must be submitted to, and approved by, the United States’ central authority pursuant to that convention, to wit, the Office of International Judicial Assistance (“OIJA”). In the alternative, an interested party may file a motion pursuant to 28 U.S.C. § 1782(a) to request a U.S. District Court sitting in Puerto Rico to issue an order compelling a witness to provide evidence in aid of a foreign proceeding, subject to the district court’s approval.
Pursuant to both the Hague Evidence Convention as well as 28 U.S.C. § 1782(a), the production of documents, written questions and oral testimony may be sought as a means of aiding foreign litigation. However, if a request is made pursuant to the Hague Evidence Convention, then the method of obtaining witness testimony will be through answers to written interrogatories unless a deposition is specifically sought.
If the request is made pursuant to the Hague Evidence Convention, then the requesting authority must provide instructions as to whether any privileges are applicable. Similarly, if the request is made pursuant to 28 U.S.C. § 1782(a), then the fourth factor which the requesting party must establish involves whether the material sought is not protected by any legally applicable privilege. However, 28 U.S.C. § 1782(a) states that “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege”. Moreover, if a request is made pursuant to the Hague Evidence Convention, and the witness must be compelled to provide the requested evidence, then the United States Attorney’s Office must initiate judicial proceedings in the United States under 28 U.S.C. § 1782. Consequently, regardless of whether the requesting party resorts first to the Hague Evidence Convention or 28 U.S.C. § 1782(a), the witness will be able to raise any applicable privileges, independently of whether the requesting party alleged them or not.
If the request is made by virtue of the Hague Evidence Convention, then the person concerned may refuse to give evidence in so far as he or she has a privilege or duty to refuse to give the evidence under the law of the state of execution or under the law of the state of origin. See 28 U.S.C. § 1781.
On the other hand, while the second factor of 28 U.S.C. § 1782(a) requires that the requesting party seek evidence “for use” in a proceeding in a foreign or international tribunal, it is well settled that the petitioner is not required to show that the information he or she seeks would be discoverable or admissible in the foreign litigation. See In re Tovmasyan, 2021 WL 3737184 at *4 (D.P.R. August 20, 2021).
Rule 27.4 of the Puerto Rico Rules of Civil Procedure allows the taking of a deposition via any remote electronic means, such as telephone or videoconference, if the parties stipulate that the deposition will be taken via said means or if the court orders as much. Similarly, by virtue of Rule 30(b)(4) of the Federal Rules of Civil Procedure, parties may stipulate, or the court may on motion order, that a deposition be taken by telephone or other remote means.
On the other hand, the United States does not permit the direct taking of evidence by video link under Chapter I of the Hague Evidence Convention. If a witness is to be compelled to provide evidence under Chapter I of the Hague Evidence Convention, a Department of Justice attorney will be the one who obtains the testimony by directly asking the witness the questions provided by the foreign court. The United States does permit the direct taking of evidence by video-link on a voluntary basis under Chapter II of the Hague Evidence Convention, but only if the arrangements are agreed upon privately, in which case the United States’ central authority will not be involved.
No. The United States has not adopted any blocking statute that would be applicable to Puerto Rico.
Yes. Applicable law, 28 U.S.C. § 1782, specifically states that “[t]his chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable him”. Puerto Rico’s local laws do not address this issue.
Although 28 U.S.C. § 1782 specifically requires that the testimony, statement, or document requested be “for use in a proceeding in a foreign or international tribunal,” the concept “tribunal” is to be interpreted broadly, encompassing “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004). Currently, there exists, at the federal appellate court level, a circuit split as to whether 28 U.S.C. § 1782(a) also encompasses private commercial arbitral tribunals. The case ZF Automotive US, Inc. et al. v. Luxshare, LTD, 2021 WL 5858630 (U.S. 2021), which the Supreme Court of the United States agreed to review in the October 2021 term, is likely to resolve this circuit split, but an opinion has yet to be issued in that case.
On the other hand, whether discovery in aid of a foreign arbitration would be available pursuant to the Hague Evidence Convention will likely depend on the laws of the state in which the requesting authority is located. See, e.g., ValuePart, Inc. v. Farquhar, 2016 WL 11333443 (N.D. Ill. East. Div. March 29, 2016) (wherein a district court refused to submit a letter rogatory on behalf of a party seeking to obtain oral testimony from two non-party witnesses located in Italy, as the evidence was to be used in a private arbitration proceeding governed by the Federal Arbitration Act).