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Overview of International Judicial Assistance to Secure Production of Documents in Possession of Non-Party in Israel

Litigants in United States-based transnational litigation frequently seek the production of documents in the possession of Israeli defendants or Israeli companies affiliated with U.S.-based enterprises. 

In a recent situation we were asked by a United States Plaintiff to company to assist in the production of documents held by a U.S. subsidiary of an Israeli parent.  The documents were either in the possession of the parent company in Israel or the latter was causing the subsidiary to withhold production.  Document production was sought in connection with patent infringement litigation pending in U.S. federal court.  This type of procedural problem frequently occurs in transnational patent litigation.     

This Note lays out briefly the procedures the U.S. party would need to follow both in the United States and in Israel to obtain production of the documents in Israel.  It is necessarily preliminary in nature and scope and is not intended to provide a full substantive discussion of the procedural problem addressed here, but only that which is necessary to give litigants and their counsel an overview of the process.

International Judicial Assistance to Obtain Production of Documents

The process of securing international judicial assistance to obtain the documents has two principal procedural components:  (a)  United States procedure and (b) Israeli procedure.  We review both briefly here.

United States Procedure

As a general rule, a non-party to a federal court proceeding can be compelled to produce documents located abroad if the non-party can be served with a subpoena duces tecum under F.R.C.P. Rule 45; and (b) is subject to the personal jurisdiction of a U.S. court.  If either of these conditions is not satisfied, then U.S. courts will seek to permit discovery by obtaining foreign judicial assistance.  There are at present two ways that foreign judicial assistance may be obtained under federal procedure:  (i)  letters rogatory; or (ii) the Hague Convention on the Taking Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, 847 U.N.T.S. 241 (1970)(the “Hague Evidence Convention”). See generally, Phillip A. Buehler, Transnational Service of Process and Discovery in Federal Court Proceedings:  An Overview, 27 Mar. Law. 1 (2002). 

The issuance of letters rogatory by federal courts is governed by 28 U.S.C. §1781.  A letter rogatory (or a letter of request) is a formal request by the court of one nation to the courts of another country for assistance in performing judicial acts.  Section 1781(a) sets out a procedure whereby the Department of State may transmit a request for foreign judicial assistance to a foreign court.  However, that statute does not prohibit a U.S. court from transmitting a letter rogatory directly to a foreign tribunal.  28 U.S.C. §1781(b)(2).  U.S. courts will generally grant motions for letters rogatory unless there is some good reason to deny just judicial assistance to a party.  E.g., Re Letter of Request from Amtsgericht Ingolstadt v. Morris, 82 F.3d 590 (4^th Cir. 1996)^[1]; DBMS Consultants v. Computer Assoc. Int’l, Inc., 131 F.R.D. 367 (D. Mass. 1990). 

A letter of rogatory or letter of request should include, at a minimum, the following:

1. the identity of the court requesting the letter rogatory and the name of the court or “appropriate judicial authority” of the Israeli court or “appropriate judicial authority” in Israel that is requested to execute it.

2. the names and addresses of the parties to the proceedings and their attorneys;

3. a short description of the nature of the proceedings;

4. a description of the evidence sought

5. a statement that the evidence sought is expected for use at trial [Note if this is not strictly the case, a statement that the evidence is being sought for pre-trial discovery will probably suffice in Israel –see below].

6. if a witness is to be examined (in addition to the mere production of documents), the name and address of the person to be examined;

7. if a witness is to be examined, the questions to be put to the witness or a statement of the general subject matter on which he is to be examined;

8. the identity of any documents that are requested to be produced; and

9. whether any special procedure is to be followed in taking the evidence.

 A similar but distinct alternative procedure is to use the Hague Evidence Convention.  Both Israel and the United States are signatories to the Convention.  In the case of a request by a U.S. court to Israel, the procedures of the Hague Evidence Convention are not technically mandatory, since as a general rule the U.S. courts have held the Hague Convention procedures to be permissive only and not exclusive. See Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct., S. Dist. of Iowa, 482 U.S. 522, 541 (1987) ("It appears clear to us that the optional Convention procedures are available whenever they will facilitate the gathering of evidence by the means authorized in the Convention. Although these procedures are not mandatory, the Hague Convention does 'apply' to the production of evidence in the litigant's possession in the sense that it is one method of seeking evidence that a court may elect to employ.").  Accord, In re Meta Sys., 1997 U.S. App. LEXIS 7683 (Fed. Cir. 1997) [note that in this last patent case a foreign party objected to having to submit its non-management employees to a deposition in the U.S. and insisted that the Hague Evidence Convention procedures were exclusive, a contention rejected by the Federal Circuit]. 

However, as a practical matter, the Hague Evidence Convention may be the only effective route to obtain evidence located overseas in the hands of a non-party, not otherwise subject to the U.S. court’s jurisdiction.  E.g., Jenco v. Martech International, Inc., 1988 U.S. Dist. LEXIS 4727 (E.D. La. 1988); General Electric Co., Med. Sys. Div. v. North Star Int’l, 39 F.R. Serv. 2d 207 (N.D.Ill. 1984);but see In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 303 (3d Cir. 2004);In re Vitamins Antitrust Litig., 2000 U.S. Dist. LEXIS 17412 (D.D.C. 2000).  This is especially so where under Israeli law the procedures set forth in the Convention are mandated by statute.  See below.

The letter of request required under the Hague Evidence Convention is similar in content to that described above for letters rogatory.  See Hague Evidence Convention, Art. 3.  Article 2 of the Convention requires each signatory to appoint a Central Authority to receive requests for international judicial assistance.  Countries, like Israel, that have signed the Convention are bound to honor the appropriate letters of requested submitted to them unless one of the enumerated exceptions applies. 

Article 23 of the Convention provides that a contracting state may declare that at the time of ratification it will not execute Letters of Request “issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.”  Countries that have made such declarations will apply the Convention only to requests for evidence to be introduced at trial.  However, while only a small minority of signatory states have not made the foregoing declaration, significantly Israel and the United States are among them. 

Quite recently, the Israeli Supreme Court in an unpublished decision held  (per Rivlin, J.) that a request to hold an oral deposition in Israel under the Convention will not be denied simply because under U.S. law discovery may be conducted for purposes other than to produce evidence to be introduced at trial.  In denying a petition for permission to appeal, the Court held that it would not interfere with the discretion of the Magistrates Court in granting the assistance and that the damage that would be caused to the requesting party by barring the deposition would be greater than the harm to the respondents in having to attend and testify.  Yarkoni v. Boston Scientific Corp., Req. for Per. App. 9785/02 (Unpublished, 2 Feb. 2003)[Hebrew]. 

Israeli Procedure

In Israel, unlike the United States, the legislature (the Knesset) has enacted a comprehensive legal regime governing international judicial assistance in both civil and criminal matters.  Judicial Assistance Between Countries Law, 5758 – 1998  (“Judicial Assistance Law”).  The Ministry of Justice has issued detailed regulations implementing the Law.  Judicial Assistance Between Countries Regulations, 5759 – 1999 (“Judicial Assistance Regulations”).  The Judicial Assistance Law comprises a wide range of international judicial assistance procedures in addition to the taking of evidence in civil matters.  With respect to requests for international requests for taking evidence in civil matters, the Law appears to be exclusive.

            All requests for international judicial assistance will have to be translated into Hebrew, a task which our office will be able to handle for you, if you so require.   This will presumably include the Court of Federal Claims Protective Order issued in the Principal Litigation.

            To handle the request for international judicial assistance both before the Ministry of Justice and the courts, we will need to have a signed limited power of attorney from the requesting party allowing our firm to act in its name.  We will be pleased to send you an exemplar of the limited power for your review and comment.

            The Central Authority for the purposes of the Hague Evidence Convention is stated by the Judicial Assistance Law to be the Ministry of Justice.  That Ministry has delegated that authority to receive and act upon requests for assistance in taking evidence to the Directorate of Courts within the Ministry of Justice, located in Jerusalem.  Within the Israeli court system, the Magistrates Court (the court of lowest jurisdiction) is given exclusive authority to act upon evidentiary requests from foreign courts.  The Directorate of Courts will assign the foreign request to the Magistrates Court in the locality where the respondent is located.  In our experience the process of bringing the foreign request for judicial assistance to the Directorate of Courts can be expedited by personally carrying the request to the Director or Deputy Director of Courts in Jerusalem and then bringing the assignment order directly to the responsible Magistrates Court.  It may be possible to carry out this procedure in a matter of a few weeks or less. 

In the case in which we were involved, the parent company was located in located in Beersheba, the Magistrates Court in Beersheba would likely be assigned by the Directorate to handle the request.  Judicial Assistance Law, §9.  However, ordinary venue rules do not apply to such requests and the Directorate could transfer the request to any Magistrates Court in Israel.  Judicial Assistance Regulations, §6.  Under the Law and Regulations the only procedure available for implementing the request is for the evidence to be produced before the Magistrates Court.  Thus, in theory and to some extent in practice, the production of documents would not take place at the respondent’s place of business or at the requesting party’s office.  The parties are free to agree to procedures for the production including allowing the production to take place ex camera. 

            It will be seen that while Israeli legislation is comprehensive, it is rather informal and allows for respondents to force foreign requesting parties to accept a discovery process which is less efficient than that allowed by the Federal Rules of Civil Procedure.  If a respondent wants to be obstructive, the Israeli procedures allow it to make difficulties for the requesting party.  On the other hand, because the process is carried out under the close supervision of the Magistrates Court, disputes can often be resolved expeditiously by a competent judge or registrar. 

            Once the matter gets before the Magistrates Court the request is subject to all of the problems generally faced by litigants:  delay tactics by the opposing party; crowded court dockets; inexperienced judges; legal holidays and the court recess (in Israel the courts are in recess from July 15th to September 1st every year).

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