U.S. Department of Justice, Office of International Judicial Assistance — Assistance Available in the United States Pursuant to International Conventions on the Service of Documents and Obtaining Evidence

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1. p.13, secțiunea IV.g, paragraful 1 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   To obtain bank records, the request must include information regarding specific bank accounts. The request must include the name of the bank in which the account is held and sufficient information to identify the relevant accounts, such as the full name of the account holder, the account number, and preferably other personal identifying information (the social security number, address of the individual, birthdate, etc.). Requests that only provide the name of the bank and the name of the individual cannot be executed; additional identifying information about the individual is required. Some financial institutions require at least three pieces of identifying information before they will release records. Thus, requests should preferably include as much identifying information as possible. Requests for bank records require a court order, which the U.S. Central Authority itself, or through a U.S. Attorney’s Office, will apply for the authority to issue a subpoena pursuant to 28 U.S.C. § 1782(a). In addition, every major financial institution has a national subpoena processing office. While a request should identify a particular bank branch or location, these requests will usually be referred to the appropriate nationally designated office. Please note, per U.S. federal law, financial institutions only keep customer and company records for up to 7 years, or at most 10 years.

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2. p.4, secțiunea I, paragraful 1 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   Generally, a request must include the names of the parties in the foreign proceeding and a sufficiently detailed description of the nature of the underlying proceeding. If documentary evidence is sought, the request must include a description of the documents sufficient to allow the competent authority executing the request to identify them. If the request seeks witness testimony, the request must include the name and contact information for the witness and a list of specific questions to be posed, as well as any instructions that the Requesting Authority may have regarding the manner of questioning, i.e., whether sworn or unsworn, and whether any privileges are applicable. All of this information must be provided in English. Unless a deposition is specifically requested, the method of obtaining witness testimony is through written answers to the interrogatories. The witness is allowed to respond in English or the original language of the request.

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3. p.5, secțiunea II.b, paragraful 1 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   While we try to act expeditiously when executing requests for evidence, at times execution is delayed due to circumstances beyond our control. Generally, requests for evidence will be executed within three (3) to six (6) months. However, if the witness is either unwilling or unable to provide the evidence voluntarily, the evidence must then be compelled pursuant to 28 U.S.C. § 1782, which may be a lengthier process.

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4. p.7, secțiunea III.a, paragraful 1 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   In the United States, courts are unable to conduct factual investigations or hire private investigators. In addition, the United States does not maintain a central registry of its residents. Therefore, we are unable to execute requests seeking to obtain an individual’s address or employer, assets and holdings, marital status, social and economic status, or other inheritance-related inquiries requiring investigation. We are also unable to execute requests that seek an investigation of the health and welfare of minors located in the United States. Requesting Authorities and parties to the litigation are free to independently hire investigators to obtain the desired information. Alternatively, the foreign country’s embassy and consulate personnel may conduct “welfare and whereabouts” visits, and under certain circumstances, state child welfare offices may provide assistance if directly contacted by the Requesting Authority or litigants. See Vienna Convention on Consular Relations arts. 5(g)-(h), Apr. 24, 1963, 23 U.S.T. 3227, 500 U.N.T.S. 95. OIJA plays no role in such visits.

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5. p.8–9, secțiunea III.f, paragraful 1 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   The United States occasionally receives requests for a deposition of an individual in the United States to be taken via videoconference and conducted by a judge or an attorney from a foreign country. OIJA is unable to execute this type of request as it does not ask the United States to directly obtain the evidence on behalf of the foreign court. OIJA will only execute requests that ask the United States, as the requested state, to obtain the evidence directly from the witness. Thus, OIJA cannot execute a request that asks us to set up a videoconference so that the foreign court or foreign attorney, rather than an attorney from the U.S. Department of Justice, can directly ask the questions. However, such a videoconference deposition is proper and does not violate U.S. law, so - 9 - long as the witness is voluntary. If that is the case, the deposition may be arranged for privately and OIJA plays no role in this process. No prior permission is needed from the U.S. Government to proceed with voluntary videoconference testimony.

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6. p.9, secțiunea IV.a, paragraful 1 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   Publicly available information, such as copies of U.S. court judgments and orders, laws, company registration information, property records, etc., is considered by the United States to be beyond the scope of assistance that can be provided by our office, as it is not within the function of the U.S. judiciary to provide such documents.

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7. p.10, secțiunea IV.b, paragraful 2 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   If the Court or the litigants to the foreign proceeding are unable to obtain a vital record directly, our office may be able to produce the record by obtaining a court order pursuant to 28 U.S.C. § 1782. A request for vital records must provide the state that maintains the record and all information required by that state to release the record.

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8. p.4, secțiunea I, paragraful 2 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   If the Court requires a deposition,3 the 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 (see Section II.d). If a request for a deposition does not provide all of this information, the testimony will be obtained through written answers. Further, if the witness requires an interpreter for the deposition, the foreign court must provide assurances that the cost of the interpreter will be paid for by the foreign court or the parties to the litigation. If a request does not include the necessary assurances, OIJA will contact the Requesting Authority seeking confirmation that payment for the services will be made by the foreign court or the parties to the litigation. If we do not receive a response by the deadline, the testimony will be obtained through written responses in English or the original language of the request.

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9. p.5, secțiunea II.b, paragraful 2 · forma din 30 noiembrie 2023 · textul original, în limba engleză

   If the request specifies the date by which the Requesting Authority requires receipt of the evidence, we will take that date under consideration. However, in many cases we may be unable to meet the required deadline. Our usual practice is to proceed with execution and to send an acknowledgment letter to the Requesting Authority explaining why we will be unable to meet the required deadline.

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10. p.9, secțiunea III.f, paragraful 2 · forma din 30 noiembrie 2023 · textul original, în limba engleză

    If the witness, however, is unwilling to appear voluntarily for a videoconference deposition, the foreign court is welcome to submit a request to our office. In such a case, the foreign court would provide OIJA with the name and address of the witness and the specific questions that are to be asked of the witness. A Department of Justice Attorney would compel the witness to appear for a deposition by issuing a subpoena. Upon the request of the foreign court, interested lawyers for the parties or a foreign judge may be present at the deposition. At the deposition, the Department of Justice Attorney would ask the witness the questions that were provided in the request. Anyone present from the Requesting Authority at the deposition would only be permitted to ask follow-up or clarifying questions based on the questions submitted in the request. The transcript of the deposition would be returned to the foreign court by OIJA. For more information, please visit the U.S. Central Authority’s Video-Link Profile: https://assets.hcch.net/ docs/b4f23c79-dc6f-41c8-a7f7-23906749750a.pdf.

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11. p.7, secțiunea III.a, paragraful 3 · forma din 30 noiembrie 2023 · textul original, în limba engleză

    For social or economic investigations, one alternative is for the Requesting Authority to issue a request, identifying a witness with knowledge of the person’s social or economic situation and providing a list of questions to be posed to that witness. For example, if the individual is, or has been, employed in the United States and the Requesting Authority can identify the employer(s), information regarding the individual’s income can be solicited directly from the employer. We may also be able to obtain information regarding specific bank accounts (see Section IV.g).

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12. p.15, secțiunea V.a · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Under U.S. law, any “interested party” can file an application pursuant to 28 U.S.C. § 1782(a) with a U.S. District Court and ask the Court to compel production of evidence in the United States in support of foreign litigation. See 28 U.S.C. § 1782(a). OIJA would not be involved in such a proceeding initiated by private parties.

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13. p.15, secțiunea V.b · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Under U.S. law, any person or entity in the United States may voluntarily provide evidence for use in a foreign proceeding without prior approval or involvement from the U.S. Government or OIJA. See 28 U.S.C. § 1782(b). OIJA does not need to be involved in obtaining such evidence.

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14. p.6, secțiunea II.d · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Generally, the United States is able to execute requests without reimbursement. However, the United States may seek direct payment or reimbursement for any third-party costs associated with obtaining the requested evidence. Most commonly, this involves service of process fees, court reporter fees for a deposition, laboratory fees for collection of a DNA sample, expert fees to produce a report, or fees for obtaining documents, such as medical records. 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 to the vendor. We will endeavor to notify the foreign court of any expenses we anticipate will need to be paid ahead of time. If OIJA does not receive a timely response to a request for confirmation to proceed with executing a request that will incur reimbursable costs, the request will be returned unexecuted.

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15. p.6, secțiunea II.e.i · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Requests should include all required information and any documentation necessary for the witnesses to respond. To the extent that a request seeks commentary or documentation relating to referenced exhibits or attachments to the request, those documents must be included with the request. If the exhibits are not included, OIJA will proceed with executing the request with instructions to the witness to forego answering any impacted questions. If a witness is unable to respond to a request in its entirety without the referenced documents, OIJA will return the request unexecuted to the Requesting Authority with instructions to resubmit with the necessary documents.

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16. p.6, secțiunea II.e.ii · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Requests comprised of hundreds of pages of documents should not be submitted to our office if those documents are not necessary for execution. Documents that are not essential for execution of the evidence request are unnecessary, may delay execution of the request, and may result in important information being overlooked. Valuable resources are also used to copy/scan all the documents, and to return the unnecessary documentation to the Requesting Authority.

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17. p.6, secțiunea II.e.iii · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Requesting Authorities should avoid transmitting duplicate requests to OIJA. Duplicate requests result in OIJA spending unnecessary time and resources reviewing and responding to requests that have already been processed. Requesting Authorities may seek a status update from OIJA at any time by emailing OIJA@usdoj.gov in lieu of submitting a duplicate request. - 7 -

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18. p.7, secțiunea III.b · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Requests must be reasonable in breadth and scope. Requests that appear to be fishing expeditions or overly burdensome will be returned unexecuted. While the Federal Rules of Civil Procedure allow for extensive discovery, limitations on discovery do exist. See Fed. R. Civ. P. 26(b). For example, requests seeking records from numerous financial institutions will be returned unexecuted if the request does not provide information, such as account numbers or copies of records, showing a reasonable belief that the person of interest maintains accounts at those financial institutions. Similarly, requests for testimony with hundreds of questions will be returned unexecuted. A request must include no more than 100 questions per witness. - 8 -

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19. p.8, secțiunea III.c · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Requests for legal opinions are outside the scope of judicial assistance OIJA can provide. U.S. courts cannot issue advisory opinions on legal issues. Chafin v. Chafin, 568 U.S. 165, 166 (2013) (citing Lewis v. Continental Bank Corp., 494 U.S. 472 (1990)). See also Report on the Work of the Special Commission of May 1985 on the Operation of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Part I, § 1(D). Therefore, requests seeking interpretations of law or legal opinions cannot be executed. In order to obtain a legal opinion, the parties may retain a private attorney licensed in the relevant U.S. jurisdiction to conduct legal research.

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20. p.8, secțiunea III.d · forma din 30 noiembrie 2023 · textul original, în limba engleză

    Requests for enforcement of a judgment or court order are outside the scope of judicial assistance OIJA can provide. Additionally, we are unable to execute requests that ask for seizure of assets, garnishment of wages, transfer of property, or any other affirmative action. To enforce a foreign judgment or court order, seize assets, transfer property, or otherwise take any affirmative legal action in the United States, the parties should retain a private attorney who must file a civil action with the U.S. court that has jurisdiction over the person or property in question.

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