Letters rogatory are a useful means divorce attorneys use to access offshore information. They can also secure a witness’ testimony in another state or foreign country. This post examines how letters rogatory can be an effective discovery device in a family law attorney’s toolbox. Also, the post discusses how to respond if you are a target of a letters rogatory petition.
LETTERS ROGATORY DEFINED
Letters rogatory are formal communications originating from a court hearing a pending action. The writing sent to a foreign court requests that a witness in the foreign jurisdiction testify under the foreign court’s direction. The testimony is then transmitted to the requesting court.
As part of its plea for assistance, the “home” court submits interrogatories for the witness to answer under oath to the foreign court along with its request. Massachusetts Rule of Domestic Relations Procedure 28(b)(3), like its federal rule counterpart, identifies individuals in a foreign country who can hear a person’s deposition. A party in a divorce action petitions the presiding probate court for a commission or letter rogatory. The goal may be to acquire relevant documents from a foreign jurisdiction. Another reason may be to obtain the sworn testimony of a foreign-based witness. Under Rule 28(b)(3), “[a] commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate.”
WHAT THE MASSACHUSETTS RULE AND STATUTE SAY
The rule does not treat these requests as a last resort. That is, the petitioning party need not show that every other way to depose the foreign party is impractical or inconvenient. Neither can the foreign-obtained evidence be excluded just because the witness was not sworn. Likewise, producing a non-verbatim transcript of the testimony is not reason enough to exclude it. The rule specifies addressing a letter rogatory “To the Appropriate Authority” in the named foreign nation.
The language of Rule 28(b)(3) also appears in a statute, M.G.L. c.223A, §10. The statute concerns taking a deposition outside of the Commonwealth to obtain testimony or documents in a pending matter. See our earlier post about the use of the Massachusetts Long-Arm Statute in divorce actions.
LETTERS ROGATORY AND DIVORCE
Letters rogatory is a sound discovery tool. An experienced family law attorney, for example, can root out assets the soon-to-be ex-spouse tries to conceal in an offshore bank account. A spouse creates a shell company. The spouse then hires a “straw” person to act as the company’s nominee director. The director opens an offshore bank account in the phony entity’s name. This enables the spouse to transfer money into the account.
To overcome this deception and gather the offshore bank account data, the divorce lawyer employs letters rogatory. The foreign court orders the offshore bank under its jurisdiction to supply the deceiving spouse’s account information and supporting documents to the requesting probate court.
GLOBAL PACTS SUPPORT LETTERS ROGATORY
Often, letters rogatory are sought pursuant to The Hague Convention, Taking of Evidence (1970) No. 20. This provision focuses on taking evidence abroad in civil and commercial matters. In a 1996 case, a party in a lawsuit in the U.S. served process by mail on an individual in Russia. The party served challenges the validity of the process. The defendant points to a “Moscow Agreement” executed by Russia and the U.S. in 1935. The Agreement says American judicial documents could only be served on an individual in Russia by means of a letter rogatory. The court in Semtek International Inc. v. Merkurity Ltd agrees with the plaintiff that letters rogatory, while sufficient, are not the only permissible method of service permitted under the Federal Rules of Civil Procedure.
OTHER METHODS OF PROCESS ARE ACCEPTABLE
Likewise, in a 2012 decision, the United States District Court for the District of Massachusetts hears a letters rogatory challenge involving Brazil. In this case, the American plaintiff serves a complaint and summons on a Brazilian entity via Federal Express. The defendant contends that service is improper because of the Inter-American Convention on Letters Rogatory. Brazil and the U.S. are signatories to this Convention.
The plaintiff argues that letters rogatory requests in Brazil could take as long as three years. The court finds letters rogatory are not the exclusive means to satisfy due process. The court rules process used in this case effectively notifies the parties of the pending litigation. Furthermore, the process doesn’t violate any international treaty.
As the Supreme Judicial Court of Massachusetts noted in the 2014 Martinelli decision, the use of letters rogatory in the Commonwealth to obtain evidence from witnesses in foreign states is uncommon. In that Workers Compensation case, the SJC notes that letters rogatory only can be used to help a cause actually pending in the court that issues the letters. Here, there is no pending action in the superior court that issued the letters, but has no jurisdiction over the Industrial Accident Board hearing the worker’s compensation case.
Opposing letters rogatory-induced testimony involves an action to quash the summons to give testimony or produce documents. Arguments are case-specific. They may include the process being costly and cumbersome or invasive of privacy.
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