In this article, Brian Hill and Mia Haessly address the use of the Hague Evidence Convention as a means for obtaining evidence located overseas -- specifically in Hong Kong -- and provide practical guidance for drafting a Letter of Request under the Convention. While litigators in the United States are accustomed to a broad range of pre-trial discovery for obtaining evidence, this same discovery standard does not apply in most other countries. Hong Kong explicitly declared that it will not execute Letters of Request seeking pre-trial discovery and that all information sought must be for use at a trial.
Beginning with an overview of Hong Kong law, the authors outline the process for initiating a Letter of Request and highlight the importance of being specific in the Request to ensure it does not appear to seek pre-trial discovery. Additionally, Hill and Haessly examine the holdings of two Hong Kong cases to illustrate how to successfully draft a Letter of Request to Hong Kong. "It is entirely possible to obtain evidence located in Hong Kong through the Hague Convention. However, the practitioner must be aware from the beginning that Hong Kong will not execute Letters of Request seeking pre-trial discovery," the authors state. "While the restrictions may appear daunting, a Letter of Request that does not cast too wide of a net and that is respectful of Hong Kong law may succeed in obtaining the evidence sought."