Letter Rogatory
(No Treaty) (Federal)

Summary

This letter rogatory is a standard template attorneys can use to have a domestic federal court formally request "a foreign court to perform some judicial act" in the absence of a treaty. See Foreign Relations, 22 C.F.R. § 92.54. This template includes a transmittal letter to the U.S. Department of State, as well as practical guidance, drafting notes, and an optional clause. You may request a letter rogatory in a civil or criminal matter to obtain documents from a foreign nonparty who is not subject to personal jurisdiction in the United States. In the absence of an applicable treaty, a letter rogatory may be the only means by which a party may compel evidence from a foreign non-party who is outside federal court jurisdiction. Federal courts have the power to issue letters rogatory pursuant to 28 U.S.C. §§ 1781 and 1782, and Federal Rule of Civil Procedure 28. Under Rule 28(b)(2), "[a] letter of request, a commission, or both may be issued: (A) on appropriate terms after an application and notice of it; and (B) without a showing that taking the deposition in another manner is impracticable or inconvenient." See Fed. R. Civ. P. 28(b)(2). Rule 28(b)(3) provides that "[w]hen a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed 'To the Appropriate Authority in [name of country].' A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken." To obtain a letter rogatory, you must file a motion for the issuance of a commission or letter rogatory. Once the letter rogatory is in proper form, the requesting court judge will sign the letter. For many countries, the court's seal and the judge's signature are sufficient. Letters rogatory are transmitted to foreign judicial authorities through diplomatic channels for formal communication between governments. In the United States, a requesting party must use the Department of State. Letters rogatory are executed by the foreign authorities and are returned to the Department of State via diplomatic channels. The Office of American Citizen Services will send the executed letter rogatory to the requesting court in the United States via certified mail. The federal court may provide the requesting attorney with the executed letter rogatory, proof of service, and any evidence submitted in response to the letter rogatory. Guidance regarding the requirements and format for a letter rogatory may be found on the U.S. Department of State's website. For more information relating to letters rogatory and international service, see Wagstaffe Practice Guide: Federal Civil Procedure Before Trial § 11-X. For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal).