- Noam Schreiber
The Hague Evidence Convention and Foreign Expert Testimony
When we think of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the "Hague Evidence Convention" or "Convention") we generally associate it with factual testimony. In other words, the practitioner is usually interested in taking the deposition of a fact witness abroad.
However, the Convention's scope is not limited to factual testimony. Under certain circumstances, foreign expert testimony may also be sought under the Convention. For example, in Leasco Data Processing Equip. Corp. v. Maxwell, 63 F.R.D. 94, 96 (S.D.N.Y. 1973), the United States District Court for the Southern District of New York held that expert testimony abroad (e.g. not in the United States), is accessible via the Convention "only if adequate expert testimony is available in the United States." The court found that the sought-after expert testimony was not available in the United States and allowed for the cross-border discovery.
In American Infra-Red Radiant Co. v. Lambert Industries, Inc., a patent infringement lawsuit, the sought-after witnesses were German nationals and residents who were unwilling to testify in the United States concerning patents to which they were the inventors. The court granted the request to take the witnesses' testimony in Germany after finding that no adequate or alternative expert testimony was available in the U.S. American Infra-Red Radiant Co. v. Lambert Industries, Inc., 32 F.R.D. 372, 374 (D.Minn.1963).
Israel would also allow for the taking of expert testimony vis-à-vis a Hague Evidence Convention proceeding. In Germany v. The Competent Authority, Chikur Din 70675-11-17 (Mag. Ct. Tel-Aviv, Dec. 13, 2017), the Tel-Aviv magistrate (i.e. trial) court executed a letter of request issued by a German court. The underlying case concerned product liability and the allegedly defective product was located in Israel. The German court sought the testimony of an expert in Israel who would purportedly physically examine the product and answer questions posed to him.
To summarize, when the testimony of a foreign-based expert is necessary, it may be sought through the Hague Evidence Convention. The same guidelines in drafting and filing the papers in a U.S.-based court would apply. See, in general, the Hague Evidence Convention: A Guide for the Practitioner. However, in addition to the general pleading guidelines, counsel should explain and demonstrate why the expert testimony is only available in the foreign country. The reasons for this may vary. The cases above, however, provide some guidance as to when such geographical-based expert testimony would be the only alternative.