Estados Unidos de América - Autoridad central (Art. 2) e información práctica

Central Authority(ies):

U.S. Department of Justice

Contact details:

Address: Office of International Judicial Assistance
U.S. Department of Justice
1100 L Street, NW, Room 8102
Washington, D.C. 20005
United States of America
Telephone: +1 (202) 514-6700
Fax:  
E-mail: OIJA@usdoj.gov
General website: https://www.justice.gov/civil/office-international-judicial-assistance-0
Contact person: Ms. Jeanne Davidson, Director
Ms. Katerina V. Ossenova, Senior Trial Counsel
(Katerina.V.Ossenova@usdoj.gov)
Languages spoken by staff: English

 

Practical Information

Blocking statutes: No blocking statute in force.

Chapter I
(Letters of Requests)

Transmission of Letters of Requests: Letters of Request are sent directly from a judicial authority in the United States to the Central Authority of the requested State. The U.S. Central Authority does not process, review, or transmit Letters of Request for the collection of evidence in a foreign State in private U.S. litigation matters, therefore outgoing Letters of Request are not transmitted through the U.S. Central Authority.
Authority responsible for informing of the time and place of the execution of Letter of Request
(Art. 7):

Generally, witness testimony is obtained through written interrogatories and therefore the U.S. Central Authority will be unable to notify the requesting authority of the date and time of the hearing as there will not be such a date. In the United States, evidence requested pursuant to the Convention is typically obtained by attorneys and formal hearings before a judge are not conducted to obtain testimony from witnesses.

If the requesting authority requires a deposition, the Letter of Request must: (1) clearly state that an official transcript of the testimony is needed; (2) provide assurances that the cost of the court reporter will be paid; and (3) provide contact information (preferably email) for the party responsible for paying the court reporter. In those situations, when asked by the requesting authority, the Central Authority can notify the requesting authority, parties to the proceedings, or their representatives of the time and place of the execution of the Letter of Request.

Presence of judicial personnel at the execution of the Letter of Request (Art. 8): Declaration of applicability. See declaration and Competent Authority.
Privileges and duties existing under the law of States other than the State of origin and the State of execution
(Art. 11):
No declaration of applicability.
Translation requirements
Arts 4(2) and 33):

See declaration

The United States accepts Letters of Request written in or translated into English. The United States has agreed to accept Letters of Request in or translated into French. The United States wishes to point out that owing to the necessity of translating such documents into English, it will take the Central Authority longer to comply with a Letter of Request in or translated into French than with a similar request received in English.

The United States declares that it will also accept Letters of Request in Spanish for execution in the Commonwealth of Puerto Rico, however, the United States wishes to point out that owing to the necessity of translating such documents into English it will take the Central Authority longer to comply with a Letter of Request in or translated into Spanish than with a similar request received in English. 

The U.S. Central Authority may not be able to compel evidence for Letters of Request submitted in a language other than English, so such evidence may be obtained only on a voluntary basis.

Costs relating to execution of the Letters of Request
(Arts 14(2)(3) and 26):

Generally, the United States is able to execute requests without reimbursement. However, the United States may seek reimbursement for any third-party costs associated with obtaining the requested evidence. Most commonly, this involves fees for service of a subpoena, court reporter fees for a deposition, or laboratory fees for collection of a DNA sample. 

Where permissible and possible, our office will provide information on where to make the payment, so the foreign court or parties to the litigation can make the payment directly. We will endeavor to notify the foreign court of any expenses we anticipate will need to be paid ahead of time.

Time for execution: On average, approximately 2-3 months for evidence obtained on a voluntary basis. For evidence that needs to be compelled, the average time for execution is 3-6 months.
Pre-trial discovery of documents
Art. 23):
Letter of Request may be executed (no declaration).
Information about domestic rules on the taking of evidence: 

Please review our OIJA Evidence and Service Guidance available online at https://www.justice.gov/civil/evidence-requests (available in English, Spanish, Turkish, German, Portuguese, Polish, Arabic, and Hebrew). 

The Code of Federal Regulations names the Civil Division of the U.S. Department of Justice as the U.S. Central Authority for the Hague Evidence Convention. 28 C.F.R. § 0.49.

Under U.S. law, evidence may be obtained without submission of a formal request pursuant to the Hague Evidence Convention. 28 U.S.C. § 1782. It is permissible for a voluntary witness located in the United States to directly provide evidence to a foreign court. See 28 U.S.C. § 1782(b). Additionally, U.S. procedure allows an interested party to file a 28 U.S.C. § 1782(a) motion to request that a U.S. district court issue an order to compel a witness to provide evidence in aid of a foreign proceeding. See 28 U.S.C. § 1782(a). Neither of these options involve the U.S. Central Authority.

Witness examination under Chapter I

Should Letters of Request include specific questions to be used during witness examination or only a list of matters to be addressed?

The U.S. Central Authority strongly encourages the requesting authority to include a specific list of questions to ensure that the witness provides all relevant information that is sought. While the U.S. Central Authority will attempt to execute Letters of Request that do not include a specific list of questions, there is no guarantee that the responses elicited will satisfy the requesting authority. 

If specific questions are not included in the Letter of Request, a witness will be provided a copy of the Letter of Request and will be allowed to respond as they deem appropriate. The U.S. Central Authority will not provide any further guidance as to the type of response the witness should provide.

Is it a public or private hearing?

In the United States, evidence obtained pursuant to the Convention is generally not obtained in a courtroom or through a formal hearing before a judge. Requests are generally executed by obtaining written responses to interrogatories or collecting documents.

To the extent that a Letter of Request explicitly asks for a deposition, it is not typically private in the sense that it is not closed as a matter of law to non-parties. However, the deposition will be arranged privately by the Department of Justice attorney and the witness, or if appropriate, the witness's counsel, and the testimony is taken at a location selected by the Department of Justice, usually at the local U.S. Attorney’s Office. As a practical matter, there is seldom an opportunity for unrelated parties or individuals to be aware of such depositions or to otherwise attend. 

Do the judicial authorities "blue-pencil" Letters of Requests (i.e. rephrase, restructure and / or strike out objectionable questions or offensive wording so that a Letter of Request may be executed under the laws of the requested State)?

Yes. As a general rule, the United States will execute Letters of Request using the English translation without making any changes or adjustments. However, in some circumstances, questions may be rephrased or restructured to assist the witness in better understanding the request. The United States also “blue pencils” Letters of Request that seek testimony on attachments or exhibits that are not included with the Letter of Request. In such situations, the United States will proceed with executing the Letter of Request, with the exception of any questions relating to the missing documents. 

Additionally, if a portion of the Letter of Request is not executable pursuant to U.S. law, the United States will return that portion to the requesting authority unexecuted and proceed with executing the remainder of the Letter of Request.

Is the witness provided in advance with a copy of the questions / matters to be addressed as contained in the Letter of Request? Witness testimony is usually obtained through written interrogatories, whereby the witness is provided with a cover letter from the U.S. Department of Justice, an affidavit with the questions, the Letter of Request, and is then asked to complete the affidavit and sign the last page before a notary. To the extent that the request affirmatively asks for a deposition and provides all required information, there is no law within the United States that requires or prohibits Department of Justice lawyers from sharing the questions/matters to be addressed with the witness in advance. It is within the discretion of the assigned Department of Justice attorney to provide the witness with a copy of the Letter of Request or the questions in advance, if deemed appropriate.
Are documents produced by the witness authenticated by the court? No.
Is an oath generally administered to the witness? If the testimony is provided through an affidavit, generally the affidavit will be signed by the witness and notarized. If the testimony is provided in a deposition, the court reporter will administer the oath. However, there is no requirement under U.S. law that either approach be used, and responsive testimony can be provided without an oath or notarized affidavit.
Can the witness be made subject to further examination and recall? Yes. Other than as provided by certain time duration limitations set by the Federal Rules of Civil Procedure, there is generally no prohibition under U.S. laws or procedures for a witness to be made subject to subsequent examination, if the testimony has not been completed or all questions identified in the Letter of Request have not been answered by the conclusion of the first examination. However, if the basis for recall is a request by the requesting authority for additional testimony on new matters, a second Letter of Request will need to be submitted.
Are there sanctions for non-appearance of witness? Yes, civil contempt.
Must interpreters who assist with the witness examination be court-certified? No, there is no law or rule requiring certification of court interpreters.
How is the testimony transcribed? Witness testimony is usually obtained through written interrogatories. In limited circumstances, the testimony can be transcribed by a court reporter or by any other appropriate mechanism agreed upon by the parties.

Chapter II
(Taking of evidence by diplomatic officers, consular agents and commissioners)

Article 15 Applicable.
Article 16 Applicable. No prior permission is required.
Article 17 Applicable. No prior permission is required.
Article 18 Applicable. See competent authority.

Taking of evidence by video-links
(under either chapter)

Chapter I

Are there legal obstacles to the use of video links? Yes. The United States does not permit the direct taking of evidence by video-link under Chapter I of the Convention. The United States permits the direct taking of evidence by video-link on a voluntary basis under Chapter II of the Convention, but such arrangements must be agreed upon privately and do not involve the U.S. Central Authority.
Technology used: Not applicable.
Level of interpretation required: Not applicable.
Simultaneous or in sequence interpretation: Not applicable.
Interpretation required in which jurisdiction? Not applicable.
Who pays for the interpretation? Not applicable.
How would a request for evidence be handled if witness not willing?

A request for the direct taking of evidence by video-link under Chapter I of the Convention will not be executed by the U.S. Central Authority as it is not asking the United States to obtain the evidence in conformance with its own domestic laws.

A witness can be compelled to provide evidence under Chapter I, but it will be a Department of Justice attorney who will obtain the testimony by directly asking the witness the questions provided by the foreign court. A witness should be voluntary when providing evidence by video-link directly to a foreign court under Chapter II. Although U.S. procedure allows an interested party to file a 28 U.S.C. § 1782(a) motion to request that a U.S. district court issue an order to compel a witness to provide evidence in aid of a foreign proceeding, it is unlikely that a U.S. court will compel a witness to directly provide evidence by video-link to a foreign court.

Chapter II

Are there legal obstacles to the use of video links? No. The United States permits the direct taking of evidence by video-link on a voluntary basis under Chapter II of the Convention, but such arrangements must be agreed upon privately and do not involve the U.S. Central Authority.
Technology used: No information available.
Level of interpretation required: The type and level of interpretation services used can be stipulated by the parties involved. Generally, professional accredited interpreters are not required in the United States.
Simultaneous or in sequence interpretation: Simultaneous or in sequence interpretation may be used.
Interpretation required in which jurisdiction? No information available.
Who pays for the interpretation? How costs are paid or reimbursed must be arranged for by the parties involved.

Other Information

Bilateral or multilateral agreements U.S. Department of State Bilateral Consular Conventions
Useful links:

Office of International Judicial Assistance Website

Office of International Judicial Assistance – Evidence Requests

OIJA Evidence and Service Guidance available online in English, Spanish, Turkish, German, Portuguese, Polish, Arabic, and Hebrew.

Competent authorities (Art. 8, 18) Art. 8: See here.
Art. 18: See here.
Additional authorities (Art. 24)  

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