It happens to family lawyers all the time. A new client comes in to meet with us for an initial consultation and tells us that his or her spouse controlled all of the money and assets. The new client is panicked, because he or she has no idea what the parties own, what the parties’ liabilities are, or even where the majority of the parties’ accounts are held.
In the normal case, most Texas family lawyers know what to do – we ask the opposing party to fill out a sworn inventory and appraisement of all of the parties’ assets and liabilities. We serve written discovery requests and, if necessary, we subpoena financial institutions to obtain account statements.
But Texas is consistently one of the fastest growing states in the nation with approximately 140,000 new domestic migrants and 82,000 international migrants moving here each year.[1] Obtaining financial records is relatively straightforward when you are serving a subpoena on the local bank that holds your client’s accounts, but what happens when you learn that assets are held abroad? From bank and brokerage accounts to business entities, it is increasingly likely that the family law practitioner will need to obtain discovery internationally. So what do we do when we learn there are assets held in Mexico or the United Kingdom and the opposing party says they do not have documents regarding those assets in their possession, custody, or control?
The United States and sixty other nations are signatories to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, more commonly referred to as the Hague Evidence Convention.[2] The Convention’s stated purpose is to “improve mutual judicial cooperation in civil or commercial matters”[3] and to “enlarge the devices for the taking of evidence.”[4] The Convention sets forth a process for obtaining pre-trial discovery from contracting nations – litigants can: 1) request the US Court submit a Letter of Request to obtain evidence located in a contracting state; and 2) use US diplomatic or consular agents located in the contracting state to take depositions (but not obtain documents) in the contracting state.
In the family law context, litigants are most likely to use Letters of Request to secure the production or inspection of documents or to obtain access to real or personal property so the property can be inspected. In short, a litigant will ask the Court in the US to submit a Letter of Request setting forth the nature of the pending proceeding and describing the evidence requested. The Letter of Request will then be transmitted to the designated central authority of the contracting state, who will execute the request in accordance with the laws of the contracting state.
The Hague Evidence Convention is not perfect – many signatories to the Convention signed with reservations that limit the types of pre-trial discovery that may be conducted – practitioners should be sure to determine whether the country where evidence is located entered into the Convention with reservations. Obtaining evidence under the Convention can also be time consuming, and litigants will want to explore all avenues for obtaining the evidence to determine whether it may be secured using the liberal discovery rules of the US judicial system. However, the Convention provides Texas lawyers with an additional and important tool for conducting discovery in an increasingly international and diverse state.
[1] https://www.census.gov/library/stories/2017/08/texas-population-trends.html.
[2] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.
[3] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.
[4] Ph. W. Amram, Explanatory Report on the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, https://assets.hcch.net/upload/expl20e.pdf.
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