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Foreign Discovery Through Letters of Request Are Not An Absolute Right

09/05/2021

The Letter of Request Procedure is the main means of evidence gathering under the Hague Convention. This process begins with a request made to the U.S. court where the action is pending to issue a letter of request seeking the production of specified documents or the taking of testimony from a particular witness. The court transmits the letter of request to the Central Authority, a governmental agency responsible for receiving and overseeing execution of letters of request, which then transmits the letter of request to the court in the jurisdiction where the evidence is located.  It is at this point that litigants anticipate that after the foreign court then conducts an evidentiary proceeding, the discovery will be issued and the foreign court will send the results directly back to the U.S. court that issued the letter of request. A recent Ontario Court of Appeals case reveals otherwise and shows the balance between comity for U.S. court orders and deference to foreign court laws.

In Actava TV, Inc. v. Matvil Corp, 2021 ONCA 105, Actava sued in the U.S. various Russian TV channels and Kartina Digital GmbH. Matvil Corp is an Ontario-based global streaming service, a competitor of Actava, but not a party to the lawsuit. The letter of request (“LoR”) sought commercially sensitive proprietary documents from Matvil that Actava’s damage expert required for his opinion. The Ontario Court of Appeal noted that Ontario courts must not recognize foreign orders if they are contrary to public policy or otherwise prejudicial to Canadian citizens. The court then reviewed public policy, emphasizing that U.S. rules are vastly more permissive governing discovery and a comparable request in Ontario would not have been granted. The Ontario Court of Appeal refused to give effect to a LoR from a U.S. court on the grounds of public policy and sovereignty.

The Actava decision points out the importance of public policy to foreign tribunals. The Actava matter suggests that if a foreign order would be impermissible under a foreign tribunal’s statutory regime, then the order is contrary to public policy. Thus, practitioners must be aware of how a foreign court would review the discovery request before proceeding to obtain a letter of request and not assume that all letters of request will be recognized.

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