Letters rogatory

Letters rogatory or letters of request are a formal request from a court to a foreign court for some type of judicial assistance. The most common remedies sought by letters rogatory are service of process and taking of evidence.

A person seeking to take an action against a person located in another country may need to seek assistance from the judicial authorities in the other country. As a hypothetical example, Alice in the United States wishes to sue Roberto in Argentina. Alice issues her summons in a U.S. court, and may then petition a court in Argentina by means of a letter rogatory to serve the process on Roberto.

Another reason why a court may require assistance from a foreign court is to obtain evidence from a witness. This evidence may be to answer questions relevant to the determination of an issue of fact, or for disclosure of documents.

Courts usually only have power to subpoena witnesses from within the jurisdiction of their own legislature, unless aided by foreign legislative authority. So for example Alice in the U.S. could not summon Jean from France to the U.S. courthouse. Instead the U.S. court would issue a letter rogatory to a French court, who would then examine Jean in France, and send a deposition back to the requesting court.

Insofar as requests to United States courts are concerned, the use of letters rogatory for requesting the taking of evidence has been replaced in large part by applications under 28 U.S.C. section 1782, or Section 1782 Discovery.

In many cases, the witness is willing to provide the testimony. However, the target court may compel the testimony of a witness who is unwilling to appear.

Generally, the target court will agree to the request unless it violates a policy of the target jurisdiction. For example, in the United States, it is usually appropriate in a civil case to depose every available witness, while in Canada, you may only depose one witness from each party. However, a Canadian court would most likely agree to the pre-trial deposition of a witness who could be compelled to testify in the United States.

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