Today I am highlighting the conclusions and recommendations of the 2024 Special Commission relating to Article 23 of the Evidence Convention. Article 23 provides that states may, if they wish, declare that they will “not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” Many states have made declarations, including, perhaps surprisingly, the United Kingdom. The declarations range from blanket refusals (e.g., Bulgaria: “The Republic of Bulgaria declares that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries”) to declarations that try to distinguish good from bad requests, e.g., the United Kingdom:

In accordance with Article 23 Her Majesty’s Government declare that the United Kingdom will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents. Her Majesty’s Government further declare that Her Majesty’s Government understand “Letters of Request issued for the purpose of obtaining pre-trial discovery of documents” for the purposes of the foregoing Declaration as including any Letter of Request which requires a person:

1. to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, custody or power; or
2. to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the requested court to be, or to be likely to be, in his possession, custody or power.

While there is variation from country to country,¹Of particular interest in Germany, which has a UK-style declaration when seeking documents from a party but which maintains its traditional opposition to executing any requests for pretrial discovery of documents from a non-party. many countries with UK-style declarations, or “qualified declarations,” mean to say that the requesting authority has to identify the documents with some degree of particularity greater than the particularity generally used in US-style requests for the production of documents or subpoenas for the production of documents.

The Special Commission issued the following conclusion and recommendation on the issue:

The SC noted that the terms of Article 23 continue to be a source of misunderstanding. The SC recalled that Article 23 is intended to ensure that a request for the production of documents must be sufficiently substantiated, so as to avoid requests whereby one party merely seeks to find out what documents may generally be in the possession of the other party to the proceeding.

It went on to approve the UK’s declaration, which it recalled “reflects the purpose of Article 23 more adequately than the wording of the provision itself.”

The hope is that more countries will liberalize their practice. At least when the target of the letter of request is a party to the US case, foreign states have an incentive for liberalization, since US courts make discretionary decisions all the time about whether to require foreign parties to respond to ordinary US discovery requests or whether to require first resort to the Evidence Convention; but if a foreign state has essentially banned document discovery, US courts are more likely to approve ordinary US discovery methods, which leads to more rather than less intrusion. But the C&R also raises another possibility. IS it possible that states that have issued what they consider to be blanket bans on document discovery under the Convention have just misconstrued the Convention? Is there an argument to be made that even when a state has made an unqualified declaration, the state’s central authority ought to construe its own declaration as though it were a UK-style declaration?

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  Of particular interest in Germany, which has a UK-style declaration when seeking documents from a party but which maintains its traditional opposition to executing any requests for pretrial discovery of documents from a non-party.