There is always something new to learn about the Evidence Convention! Recently I was consulted by a client for whom I had prepared letters of request. The case had settled, but the client expected a new, related case to be filed soon. Could we “get the ball rolling” by seeking issuance of letters of request for the case that had not yet been filed? No one had ever asked me that before. I have handled cases going the other way, where a foreign litigant seeks evidence in the United States in aid of a prospective foreign lawsuit. But those cases are generally brought in a US court directly under 28 U.S.C. § 1782, without the need for a letter of request. So I really did not know the answer offhand.

It turns out that the Convention does refer to this issue, though in a slightly roundabout way. Article 1 of the Convention says that the Convention applies to “civil or commercial matters.” It does not say, directly, that the Convention applies to pending or prospective proceedings. But it does say that the Convention cannot be used “to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.” So it is clear that, as far as the Convention is concerned, a letter of request can request aid in the taking of evidence for contemplated proceedings.

What is a “contemplated” proceeding for purposes of the Convention? That is a little bit unclear. The Practical Handbook suggests that the intention is to allow requests aimed at the preservation of evidence—for example, the deposition de bene esse of a terminally ill witness. But some courts have looked not to the reason for taking the evidence but to how imminent the new case is. This is similar to the position the US Supreme Court took in Intel, when it held that prospective proceedings, for purposes of § 1782, were proceedings in reasonable contemplation. But Intel involved a US statute, not the Convention itself.

Suppose you’ve satisfied whatever hurdles the Convention creates. How would you go about getting a letter of request in the United States for use in a US prospective proceeding? The problem is that it’s not enough for the Convention to permit the issuance of the letter of request. The law of the forum, i.e., US law, must also authorize the issuance of the letter of request. I don’t know of a case where this has been done. But here are some considerations:

• In federal courts, FRCP 27 permits a deposition to perpetuate testimony where the petitioner expects to be a party to a case in a US court (in this context, a federal court) but he cannot presently “bring it or cause it to be brought.” The petitioner must explain the reasons for seeking to perpetuate the testimony, which presumably means the reasons why the testimony can’t wait for the action to be brought, or in other words, why it might be lost if not taken now. I see no reason why, in a case where FRCP 27 applies, a petitioner might not seek issuance of a letter of request.
• Rule 27 also preserves the right of a litigant to bring an independent action to perpetuate testimony. This is a reference to the old bill of discovery in equity, which later became an action for discovery. It seems to me that if you can meet the requirements for federal subject matter jurisdiction, this is probably still a live option in the federal courts. But that is a big if, especially as in modern times there is (as far as I know) no statutory basis for such an action.
• State courts are probably an easier bet because they avoid the federal jurisdictional problems. Many states have adopted versions of FRCP 27, and many states also have statutes that give a basis for actions to perpetuate testimony. Note, though, that the showing you need to make in order to bring those statutes into play will vary from state to state. I suspect that state law will often require a showing that the testimony might be lost if not taken immediately. But I don’t think this will invariably be the case. While I am not a New York lawyer, I understand the New York statute may apply when the petitioner needs some evidence in order to know enough to sue.
• I would like to give a shout-out to the relevant Massachusetts statute, which allows for the perpetuation of testimony on application to two notaries public or two justice of the peace (or one notary and one justice of the peace), without the need to approach a court. There does not appear to be a requirement to show that the testimony would be lost if not taken immediately, but if anyone objects, then the testimony cannot proceed unless there is such a showing. The Massachusetts statute even provides for taking testimony outside of Massachusetts on commission! (Question: does that imply that testimony cannot be taken outside of Massachusetts by other means, e.g., a letter of request?)
• Suppose someone uses the Massachusetts statute to issue a letter of request, or to issue a commission with the idea of requesting permission from the foreign state as under Chapter 2 of the Convention. Does the Convention even apply? Are the notaries or justices of the peace a “judicial authority?”🤯