Letters Rogatory is an ancient and honorable, but little known and seldom needed, trial procedure. Many attorneys have yet to experience letters rogatory. An attorney may encounter the procedure only once or twice in a forty or fifty year practice. This article is intended to be of help to attorneys who have yet to experience letters rogatory.

Letters Rogatory has been defined as a formal request by a court in which an action is pending to another court in an independent jurisdiction, such as another state or foreign country, asking that an examination of a witness present in the latter jurisdiction be taken and transmitted to the requesting court. The term has also been defined as a formal request from a court in one country to the appropriate judicial authority in another requesting compulsion of testimony or documentary or other evidence or effect service of process. “Rogatory” comes from the Latin word rogare meaning “to ask.” One court “asks” assistance in an action before it from another court.

The procedure for letters rogatory has been a part of the common law from the earliest times. It exists without statutory or constitutional authority as a matter of comity. The word “rogatory” does not appear in either the Miss. Code of 1972 or the 1890 Constitution. Letter Rogatory is mentioned in Rule 28 (b) of the Mississippi Rules of Civil Procedure (MRCP), which became effective January 1, 1982, as one of three methods by which depositions may be taken in a foreign country. The rule assumes the pre-existent validity of letters rogatory.

The authority of a court to issue a letter rogatory (or letters rogatory) is said to be inherent in a court in the reasonable exercise of its discretion. The Mississippi Supreme Court in Electric Reduction Co. of Canada, Ltd v. Crane, 120 So.2d 765 (Miss. 1960) recognized that courts have inherent powers to honor and execute letters rogatory. The court pointed out that “no statute in Mississippi expressly confers jurisdiction (to issue or honor letters rogatory) on the circuit courts, but Section 156, Constitution of Mississippi of 1890, confers on the circuit courts original jurisdiction in all matters... not vested... in some other court.” Both the trial court and the Supreme Court were of the opinion the Circuit Court of Lowndes County could honor the letter rogatory from the Ontario (Canada) Supreme Court requesting the oral examination of a witness. The action occurred before the adoption of the MRCP, when mandatory discovery was not available for litigants in Mississippi. The party sought to be deposed unsuccessfully argued the letter rogatory was in the nature of a compulsory discovery procedure which was then unauthorized under the laws of Mississippi. While the objection was accurate as to Mississippi law at that time, the holding of the court was that the extent of the request as set forth in the letter rogatory generally controls the discovery proceedings.

In Barnes v. a Confidential Party, 628 So.2d 283 (Miss. 1993), letters rogatory were issued in a divorce proceeding by a Georgia trial court to a Mississippi court requesting that the deposition be taken of a male Mississippi resident who had a relationship with the wife in the divorce proceedings while they were students at Ole Miss (before the marriage). The deposition taken pursuant to the letters rogatory sought information concerning their relationship at Ole Miss and a chance meeting in Aspen (during the marriage), which the wife in the Georgia litigation was not required to disclose because Georgia law contained a privilege against testifying as to matters which shall tend to bring infamy, disgrace, or public contempt upon herself or any member of her family. The party seeking the letters rogatory deposition of the Mississippi resident argued Mississippi had no such privilege so that the MRCP required the deponent answer all questions. The trial court disagreed. The Supreme Court affirmed the trial court because Georgia law applied.

The rule to be deduced from Electric Reduction and Barnes is that the law of the jurisdiction issuing the letters rogatory will generally control. Attorneys defending against letters rogatory issued for discovery in Mississippi should be aware of the law of the issuing jurisdiction as well as Mississippi law. Electric Reduction and Barnes both contain additional holdings concerning letters rogatory which for brevity are not discussed in this article.

The ancient common law procedure for letters rogatory has been supplemental by rules, statutes, and treaties. MRCP, Rule 28(a) provides depositions may be initiated by an oath or affirmation administered...by an officer authorized to administer oaths. Rule 28(b) authorizes depositions in foreign countries (i) before a person authorized to administer oaths in the place where the examination is held, (ii) by a person commissioned by the court, or (iii) pursuant to a letter rogatory. The rule also provides that evidence obtained in response to a letter rogatory shall not be excluded because it is not a verbatim transcript or was not taken under oath or “any similar departure from the requirements for depositions taken within the United States under these rules.” It is the apparent intention of the drafters of the MRCR that the common law procedure with respect to letters rogatory shall remain in effect and not limited by the more formal modern civil practice rules.

Attorneys needing discovery in a foreign jurisdiction (including another state) should take into consideration the three options under MRCP, Rule 28. As the standard for obtaining evidence under a letter rogatory is less formal, but just as admissible, a letter rogatory may be preferable in some instances. Should there be defects in the taking of the deposition, Rule 28 seems to allow irregularities which would not be allowed under the other two options. Letters rogatory under MRCP, Rule 28 may, however, include a formal deposition.

Miss. Code Ann. §7-1-17, which has been Mississippi law since the 1880 Code, authorizes the governor to appoint commissioners in each state and in foreign countries to, among other things, “take and certify depositions and affidavits to be used in this state.” The statutory need for this statute has been superceded by MRCP, Rule 28, which authorizes Mississippi trial judges to appoint commissioners in foreign countries for the same purpose.

The difference between letters rogatory and commissioners should be noted. Letters rogatory procedure involves two independent courts. Discovery through a commissioner involves the trial court and the commissioner.

USCA, Title 28, §1782 authorizes U.S. district court judges to order a person in their district to give testimony or produce documents pursuant to a letter rogatory or request from a “foreign or international tribunal.” Brevity prevents a discussion on what constitutes a “tribunal.”

Federal Rules of Civil Procedure, Rule 28 provides for who may take depositions. The rule contains separate provision concerning the taking of depositions within the United States and in foreign countries. Rule 28(b), when providing for the taking depositions in foreign countries, refers to “any applicable treaty or convention.” The Hague Evidence Convention is the currently applicable convention. Under FRCP Rule 28(b) letters rogatory are treated as separate from discovery under “treaty” or “commission.” The federal procedure also retains traditional letters rogatory. For further discussion of obtaining evidence at the federal court level from foreign jurisdictions, see 6 Moore’s Federal Practice, Chapter 28, Persons Before Whom Deposition May Be Taken.

The U.S. State Department has produced an article entitled “Preparation of Letters Rogatory,” which is a fourteen page comprehensive treatment of the use of letters rogatory in foreign countries. (Google search: state dept letters rogatory)
Comments, a checklist, and forms for letters rogatory may be found at 8A Am Jur Pleading and Practice Forms, Letters Rogatory, §150 et. seq.

Readers who do not have a letter rogatory on their professional resume might want to toss this article in that desk drawer where you keep things for future reference and wait for the mail person to arrive with your letters rogatory.