The Letter of Request was couched in strikingly wide terms. Mr Hunter cites the judgment of Peter Gibson LJ in the State of Minnesota case at para 64:
"As was held in Re Norway's Application No 1, [at  QB 433] where the matters on which examination is requested by the Letter of Request to proceed, are too widely drawn, it will lead to the inference that the Letter of Request was designed to elicit information which might lead to the obtaining of evidence rather than to establish allegations of fact, and that wouldamount to an impermissible fishing expedition."
Of course sometimes, as Sir Richard Scott V-C said in the First American Corporation case at p 1166, "the width of a request may be an inevitable consequence of the complexities of the issues and of the witnesses involvement in them", but I cannot accept that in this case the very wide ambit of the Letter of Request can be so explained.
 Moreover,the evidence of Mr Owens about the relevance of Mr Dunt'stestimony confirms my view that the Letter of Request was directed to questioning mainly of an investigatory nature. The request ranges far wider than Mr Owens' explanation about the significance of Mr Dunt's testimony could possibly justify.
 I conclude that the Letter of Request seeks an impermissible investigation and for that reason this court should not accede to it.
 Before I consider whether the request should be allowed in a modified and limited form (either as proposed by Mr Owens in his witness statement or as Ms Cockerill suggested in her submissions or otherwise), I shall consider Mr Dunt's further argument thatin any event the order made by Master Turner is oppressive. As Lord Woolf MRsaid in the State ofMinnesota case (loc cit) at para 18, there is a need to hold a balance the English court's general wish to assist the court making the request and the proper interests of the potential witness. The witness is entitled to know within reasonable limits the matters about which he is to beexamined, and there comes a point at which a Letter of Request may be so vague that it will not be permitted. The wide-ranging list of topics attached to the Letter of Request, and the fact that many of them were unrestricted in terms of subject-matter or date lead me to conclude that for this reason too the examination sought in the Letter of Request is not one to which the court should order and that the order made by Master Turner should be set aside.”
We should be asked toadvise on the form of the document request before the request is submitted to the U.S. Court. This will certainly save time in the long run: if this procedure is not followed there may be contested hearings in England and, as can be seenabove, possibly part or all of the request may be struck out.
8) NO DISCOVERY ORDER AGAINST NON-PARTIES
Section 2(4)(a) of the 1975 Act prohibits the English Court from making an order against a stranger to the proceedings requiring him to make general discovery of documents. Such an order would be in the nature of a "fishing expedition" which is never allowed in the English Court. The request for witnesses to be heard or documents to be produced must specify which evidence witnesses can give or the actual documents which are to be produced.
Section 2(4) of the 1975 Act states:
"An Order under this Section shall not require a person
(b) to produce any documents other than particular documents specified in the Order as being documents appearing to the Court making the Order to be, or likely to be, in his possession custody or power."
The Court must be satisfied that the documents in question are in the possession, custody or power ofthe person against whom the Order is made. The burden of proving this fact is on the applicant.
9) ORDERS AVAILABLE FROM THE ENGLISH COURT
The English Court has power to make orders for:-
(i) oral or written examinations of witnesses;
(ii) the production of documents;
(iii) inspecting, photographing or preserving property;
(iv) taking samples of property;
(v) conducting experiments on property;
(vi) medical examination of persons;
(vii) taking blood samples.
Once an Order has been made by the English Court depositions are taken in "the English manner" (Order 39 RSC) before an Examiner appointed by the Court. The Examiner will beanEnglish barrister. In order to facilitate the takingof depositions at a time convenient to the party requesting the Orderit is normally better to have an Examiner of the party's choice appointed rather than one of the Court Examiners who may not be available at the required time. This can only be done if the application for the Order is made by solicitors who will also make the appropriatearrangements for the examination - including providing a Court reporter if required.
Examinations may also be videotaped. An application to set aside an Order forvideotaping the taking of evidence was unsuccessful - (J. Barber & Sons v. Lloyd's Underwriters  2 AllER 845.
In that case Evans J. said,
"Two things are clear. (i) A video recording of evidence given in English Courts is not permitted. There is statutory recognition of tape recordings: photographs in Court are banned. In my judgment videotaping is not allowed.(ii) At the other extreme, evidence in the form of tape recordings and video recordings is capable of admission in English Courts, just as photographs are commonly admitted.
Here we have an intermediate situation. What is sought is videotaping outside the Court, and it is proposed that the videotaping should be available to the Court itself.That is parallel to the taking of tape recordings outside Court of a shorthand transcript outside Court. It is clearly something different from recording proceedings in the Court itself.... Proceedings involving examination of witnesses outside Court are not necessarily limited to the permitted methods of recording proceedings in Court. It seems to me that the request by the Californian Court is not inconsistent with the English mode".
It is noteworthy that many of the leading cases on extraterritoriality are concerned with whether or not evidence should be produced for foreign proceedings.
In R. v. Grossman  Cr. App. R. 302 the Court of Appeal declined to make an order for disclosure of information held by a branch of Barclays Bank in the Isle of Man under Section 7 of the Bankers' Books Evidence Act 1879. Lord Denning M.R. said,
"I think that the branch of Barclays Bank in Douglas,Isle of Man, should be considered in the same way as a branch of the Bank of Ireland or an American Bank or any other Bank in the Isle of Man which is not subject to our jurisdiction.... It is subject to the laws and regulations of the Isle of Man. It is licensed by the Isle of Man Government. It has customers there who are subject to Manx law. It seems to me that the Court here ought not in its discretionto make an Order against the Head Office here in request of the books ofthe branch in the Isle of Man in regards to the customers of that branch. Itwould not be right to compel the branch - or its customers - to open their books or to reveal their confidences in support of legal proceedings inWales".
The case of MacKinnon(above) concerned an Order made against an American bank, which was not a party to the main action, requiring it to produce books and papers held at its Head Office in New York. These related to an account of one of the Defendants, a Bahamian company which had, since the issue of the Writ, been struck off the Register of Companies, and a subsequent subpoena duces tecum which was served on an Officer of the Bank at its London Office. Hoffman J. held that the Order and subpoena, taking effect in New York, were an infringement of the sovereigntyof the United States and therefore the English Courts should not requirea foreign bank which owed a dutyofconfidence to its customers to produce documents outside the jurisdiction of the English Courts. The fact that the bank was regulated by the law of the country where the customer's account was kept (in this case the United States) and concernedbusiness transactions outside the jurisdiction was material.
"the need to exercise the Court's jurisdiction with due regard to the sovereignty of others is particularly important in the case of banks.... If every country where a bank happened to carry on business asserted a right to require that bank to produce documents relating to accounts kept in any other such country, banks would be in an unhappy position of being forced to submit to whichever sovereign was able to apply the greatest pressure".
He also referred to the decision of the New York Federal District Court in LakerAirways v. Pan American World Airways 607 F.Supp.324 where subpoenas served onEnglish banks attheir New York offices requiring them to produce documents relating to transactions in England were quashed and stated that,
".... this decision shows a welcome revival in a United States Court of sensitivity to foreign sovereign interests".
Perhaps thebest known case on the subject of such requests is RioTinto Zinc Corporation v. Westinghouse Electric Corporation  AC 547. In this case the House of Lords reverseda decision of the Court of Appeal which had upheld the implementation of Letters of Request issued by a Court in Virginia.
Viscount Dilhorne said,
".... for many years now, the United States has sought to exercise jurisdiction over foreigners in respect of acts done outside the jurisdiction of that Country. This is not in accordance with international law and has led to legislation on the part of other States designed to protect their nationalsfromcriminal proceedings in foreign courts where the claims to jurisdiction by those courts are excessive and constitute an invasion of sovereignty".
12) PRIVILEGE AND DUTY OF CONFIDENTIALITY
The Westinghouse casealso comments in detail on claims to privilege against production of documents sought under Letters of Request and differentiates between documents required for the purposes of civil proceedings and documents sought for the purpose of a Grand Jury investigation which might lead to criminal proceedings. Lord Wilberforce said,"Now Section 5 of the 1975 Act providesfor the obtaining of evidence for criminalproceedings but expressly the section only applies to proceedings which have been instituted (none have been instituted) and, impliedly, to a request by the Court in which the proceedings have been instituted. The case is therefore not within Section 5, and the procedure isanattempt to get the evidence in spite of that fact".
A party wishing to obtain evidence for use in foreignproceedings should institute proceedings, or at least produce some evidence that proceedings are about tobecommenced, before any application is made to the Court for an order.
There is also the question of attorney-client privilege which in England is either legal advice privilege or litigation privilege.
In United States of America v. Philip Morris and Others the government was suing a number of tobacco companies for $280 billion, alleging that they misled the public aboutthe risks of smoking.
Steven Loble acted for the United States of America in that case.
In December 2003, after a 3-day hearing, the Commercial Court in London made an order that Andrew Foyle, a partner in City solicitors firmLovells, be examined about the document destruction policies of a company called BATCo, despite protestations that such evidence could not be obtained as a result of legal professional privilege.
The decision was appealed to the Court of Appeal. The appeal was unsuccessful.
In England there are two types of privilege – legal advice privilege and litigation privilege.
The judge set out the test for legal adviceprivilege in paragraph 39 of his judgment ( EWHC 3028 (Comm)),
“In my view it follows from these decisions that before legal advice privilege can be claimed inrespect of any communication three conditions must be satisfied: (i) the communication must pass between the lawyer and his client; (ii) it must be confidential; and (iii) it must be for the dominant purpose of obtaining or giving legal advice, that is,adviceabout the client’s rights and obligations. Moreover, the Court of Appeal has made it clear that the solicitor’s own assertion that the dominant purpose of a particular communication was the obtaining of legal advice is not conclusive; it is a matter for the court to determine on the basis of the whole of the evidence before it...”
The judge went on in paragraph 40 to set out the test for litigation privilege,
“In this case two requirements must be satisfied: (i) the communication must be confidential; and (ii) it must have been made for the dominant purpose of conducting or giving advice in relation to litigation, either pending or in contemplation.”
The judge went on to find that no privilege, neither litigation privilege nor legal advice privilege, attached to communications between the intended witness and BAT, and ordered Mr Foyle, a partner in a large London law firm to give evidence for use at trial in the US proceedings.
Both BAT and Mr Foyle appealed the decision. The appeals were unsuccessful.
The Court of Appeal found that the judge was correct in his analysis of whether litigation privilege attached to communications between BAT and Mr Foyle,
“68. In the present case it is quite clear that the judge correctly considered that a "mere possibility" of litigation did not suffice. He was also correct to conclude that the fact that there was "a distinct possibility that sooner or later someone might make a claim" was insufficient. So was "a general apprehension of future litigation". He repeated three times that the appropriate test was that litigation must have been reasonably in prospect. The expression "real likelihood" seems to have been used as a counterpoise to "a mere possibility", and I do not consider that any more can properly be read into this phrase. The judge was certainly not saying that there must have been a greater than 50% chance of litigation.
69. In any event, I consider that it would be impossible to conclude that litigationagainst BATCo itself was reasonably in prospect when that company engaged Mr Foyle’s services to advise it. The last time anyone had sued that company had been as long ago as 1969, and there had been no letters before action or other precursorsofcontentious litigation when Mr Foyle was advising it between 1986 and 1994. In his third witness statement the most that Mr Gilbey could say was that "it would be reasonable for BATCo to have anticipated that it might be made a defendant to litigation in the United States or elsewhere".”
Moving on to deal with legal advice privilege, Brook LJ said,
“74. It is convenient to begin with an extract from the speechof Lord Nicholls in R v. Derby Magistrates Court ex parte B  AC 487, 510:
"The Courts of this Country will, in the natural course, pay great respect and attention to the Superior Court of the United States of America, but I conceive that it is nonetheless the proper province of English Courts, when their jurisdiction is invoked, not to refrain from exercising that jurisdiction if they think that it is their duty so to do for the protection of rights which are peculiarly subject to their protection. In so saying, I do not conceive that I am offending in any way against the principles of comity .....".
The Judge also referred to the comment of Denning L.J.,
"The writ of the United States does not run in this country, and, if due regard is had to the comity of nations, it will not seek to run here."
X A.G. v. A Bank was a case involving injunctions preventing a Bank from complying with subpoenas issued by an American Court in three actions. Although the proceedings were in chambers, judgment was given in open court. Leggatt J. summarised as follows:-
“On the one hand, there isinvolved in the continuation of the injunction impeding the exercise by the United States Court in London of powers which, by English standards, would be regarded as excessive, without in so doing causing detriment to the Bank; on the other hand, therefusal of injunctions, or the non-continuation of them, would cause potentially very considerable commercial harm to the plaintiffs, which cannot be disputed, by suffering the Bank to act for its own purposes in breach of theduty of confidentiality admittedly owed to its customers...
Any sanction imposed now on the Bank would look like pressure on this Court, whereas as it seems to me, it is for the New York Court to relieve against the dilemma, in which it turns out to have placed its own national, by refraining from holding it in contempt proceedings are issued".
Accordingly, it was ordered that the injunctions should continue.
In In Re the State of Norway (No. 1 and No. 2) - Judgment 9th February 1989 (see paragraph 13 below for further details) Lord Goff upheld the decision of the Judge of the first instance that "witnesses should not be required to reveal the identity ofa settlor in breach of a banker's duty of confidentiality unless thewitness should have evidence that the settlor was acting as the nominee or agent of the tax payer".
13) CIVIL OR COMMERCIAL MATTER
There was also much discussion of the practice relating to Letters of Request, possible infringement of UK sovereignty and extra-territoriality in the case of In Re. the State of Norway (No.1), In Re. the State of Norway (No. 2) House of Lords (Judgment 9th February 1989).
There had previously been two cases in the Court of Appeal which to some extent resulted in conflicting decisions. The main issue was whether an action in the Sandefjord City Court in Norwayto set aside an assessment of tax was a "civil or commercial matter". The Court of Appeal in Norway (No. 1) had decided that this should be decided pursuant to the laws of the requesting Court and not the recipient Court of the Letters Rogatory. In Norway (No. 2) the Court decided that it should be resolved pursuant to the law of the Court receiving the request.
The main speech in The House of Lords was given by Lord Goff who said:-
"The words (civil or commercial matter) should be given their ordinary meaning, so that proceedings in any civil matter should include all proceedings other than criminal proceedings, and proceedings inany commercial matter should be treated as fallingwithin proceedings in civil matters. On this simple approach, I do not see why the expression should be read as excluding proceedings in a fiscal matter ....".
It will be seen from the above cases that the English Courts are keen, in accordance with the principle of comity of nations, to give effect to requests for evidence fromforeign courts. The English Courts are, however, jealous in protecting the sovereignty of the U.K. and the border separating the willingness to assist foreign courts and the protection of sovereignty is not always clearly defined.
15) PRACTICAL GUIDANCEFROM REPORTED CASES
Another recent case, Janice Windh and Another v. Land Rover North America Inc., and Others  EWHC 432 (QB), involved an application to set aside an order for two witnesses to give evidence for proceedings in California. Steven Loble acted for the successfulapplicant in that case. The applicationtoset aside the order was made by the defendant and not the witnesses. This is only the second reported case in whichan application has not been made by the proposed witness.
The Senior Master rejected the application to set aside the Order. By consent, the application for permission to appeal was heard with the application to appeal. Treacy J said,
“11. The Defendants’ initial contention before me is that Master Turner’s rulingis fatally flawed because he did not ask himself the right questions in coming to a decision. I have been referred to First American Corporation and Others v Zayed and Others  1 WLR 1154 at p1 165D where Sir Richard Scott Vice Chancellor said:
“In summary, in considering theletters ofrequest in this case the court should, in my opinion, ask first whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics mentioned in the amended schedule of requested testimony, and second whether the intention underlying theformulation of thosetopics is an intention to obtain evidence for use at the trial or is some other investigatory, and therefore impermissible intention.”
It was contended by Mr Onions QC that in his judgment Master Turner addressed himself only to the first of these two questions.
1. Both questions need to be asked because of the terms of s.2(3) and 2(4) of the 1975 Act which in effect provide that the Court’s discretionary power under s2 of the Act to make provision for the obtaining of evidence for use in proceedings in another jurisdiction is subject to jurisdictional limitations directed against “fishing” applications both in relation to oral testimony as well as documents.
2. I cannot accept Mr Onions’ submission that Master Turner did not address himself to both questions. His judgment is brief but it reveals that Master Turner was
i) Alive to the tendency for US-based applications to seek impermissiblywide disclosure,
ii) Had in mind the Defendants’ case that these requests were in the nature of pre- trial discovery orientated requests which have on occasions been designated “fishing” requests in the reported cases,
iii) Appreciatedthat the intention behind the seekingof evidence has to be the obtaining of material to be used at the trial of the proceedings, as opposed to obtaining material for the impermissible purpose of a “fishing” or investigatory exercise.
Further, he had struck out parts of the requests which he viewed as “directed towards obtaining general discovery”.
14. Having approached the matter in that way, he stated:
“Having read the request, the pleadings and the witness statements of Mr Loble [The Plaintiffs’ solicitor], I have no doubt that this evidence is needed at trial. There isnothing in the papers before me to suggest thatthis isnot the case.”
I am satisfied that taken in the context of his judgment as a whole, and having regard to the strenuous representations before the Master both on the papers and orally through Mr Onions QC, there can be no question of Master Turner having failed to apply his mind to both questions as indicated by Sir Richard Scott V-C.
“20. In his witness statement Mr Loble has set out at Paragraphs 24 and33illustrations of specific questions said to be covered by the topics set out in the letters of request. Their content has been criticised by Mr Onions as demonstrating that in reality this is a process of impermissible discovery rather than the acquisition of evidence to be given at trial. The Master plainly did not accept those criticisms although he had them in mind as page 3 of his judgment shows. I am not persuaded to take a different view or to hold that the Master was wrong. It seems to me that Mr Rubin QC’s submission that the criticised proposed questions are illustrative of the Claimants assertion to obtain evidence for use at trial is well founded. Mr Rubin was with some force able to point out that in relation toeach of those witnesses, (although, of course, the Claimantscould not know what answer they would give to specific questions on specific topics), the evidence filed on their behalf showed that Claimants had carried out sufficient preliminary investigations in relation to each of the two proposed witnesses to be able to identify them as persons having relevant evidence to give on the issues identified. Sir Richard Scottcommented in First American in passages between p1 163G and p1 164F:
“If oral evidence is being sought for the purpose of use at trial and if there is good reason to believe that the intended witness has knowledge of matters in issue at the trial so as to be likely to be able to giveevidence relevant to those issues, I do not understand how an application to have the intended witness orally examined can be described as “fishing”. It cannot be necessary that it be known in evidence what answers to the questions the witness can give”
“In the case of a witness who there is reason to believe has relevant evidence to give, a subpoena served on the witness in order to obtain his evidence fortrial could not be set aside onthe ground that it was “fishing”. In a comparable case, a court wouldnot be deprived by s.2(2) of power to accede to a letter of request. The question of whether, as a matter of discretion, the court would be prepared to make an order pursuant to the letter of request ....would be another matter”
“Moreover, it is not always possible todraw a sharp distinction between, on the one hand, questions “designed to establish ... allegations of fact” and, on the other hand questions designed to extract “information whichmay lead to obtaining evidence in support of a party’s case”
“In framing questions to ask a witness from whom no proof has been taken,the questionscan be expected to ask a number of preliminary questions to feel his way in. This is not fishing. It is a normal technique of examination. A topic for legitimate questioning may have merely background significance. I repeat that, in my opinion, if there is sufficient ground for believing that an intended witness may have relevant evidence to give on topics which are relevantto the issues in the action, a letter of request seeking an order for the oral examinationofthe witness on those topics cannot be denied on grounds of fishing.”
After almost twofull days of argument, the judge reserved judgment and then refused permission to appeal.
In Honda Motor Co Ltd and another vNeesam and Others  EWHC 581 (Ch), the English Court had to decide whether an order for the issue of a letter of request to an Australian court should be granted. The judge decided that,
“ In the light of the parties' respective arguments, I have reached the following conclusions. Firstly, I see no answer to Mr Mellor's point on the request for disclosure ofdocuments by Mr Beckert. The three categories of document listed in the draft letter of request, which I have read out, plainly do not identify particular documents, even in a compendious way. Intruth thethree categories amount to no more than a wish list of documents which the Fourth Defendant hopes may exist. Secondly, I accept Mr Mellor's submission that the request in respect of the oral testimony of Mr Beckert and Mr Justerfalls within the description of "fishing" in the State of Norway and Minnesota cases.
 I have been referred to the Fourth Defendant's statement of case in the Lime Exports claim. It contains no particularised allegation that Mr Beckert or Mr Juster were parties to any relevant conversation or communication regarding Honda (Australia)'s consent to the parallel imports. That entails no criticism whatsoever of the Fourth Defendant's legal team. It simply reflects the reality that they do not know what Mr Beckert or Mr Juster can say. Accordingly, itseems to me that examination of those witnesses would not be designed to establish allegations of fact which have been raised bona fide with adequate particulars, but would constitute a roving enquiry. Thirdly, I am satisfied that the issueofa letterof request as asked would bevery likely to derail the trial due to commence on 26 March and may also result in the incurring of disproportionate extra expense. Given the speculative nature of the Fourth Defendant's application it would, in my judgment, be wrong to jeopardise the trial date which has been fixed for the best part of a year in order to accommodate what the Fourth Defendant is trying to achieve.”
16) PRACTICAL MATTERS
Before embarking on any exercise to obtain evidence (take depositions) in England, please call us to discuss the matter.
Similarly, if you or yourclientsarethe recipient of an Order, we can advise on whether there are realistic prospects of challenging the Order or modifying it to deal with concerns raised by the Order. There is a 7 day time limit from date of service for applying to set aside such an Order, so it is important that you contact us immediately if you wish to consider applying to set aside or modify the Order.
Wewill work with US attorneys to ensure that the Letter of Request, or Letters Rogatory, will comply with the requirements of English law and procedure (see Spies and FX dealers - they can be made to talk), to ensure that the substance of the request is acceptable to the English Court and that the request as a whole, and particularly document requests, is in a form, that does not infringe any of the requirements set out above.
We willwork within whatever time constraints there are, but it is advisable, when seeking to take depositions or obtain documentsfromwitnesses in England, to allow a reasonable amount of time to draft the request, ensure tha tit comports with the English requirements, obtain an Order from the English Court, serve the Order personally on the witnesses (and, if necessary, deal with any request to set aside the Order).
With the right preparation and advice, the whole process should be smoother than rushingat the last minute to beat a deadline and ensuring that the request is made in a manner which is acceptable to the requesting court (in the United States) and the English Court, which will endeavour to assist the US Court if itpossibly can.
"It must be remembered that it is the duty and pleasure of the EnglishCourt to respond positively to a letter of request if it can. It is also in the public interest that a court (on either side of the Atlantic) should have all relevant material available to it when it decides a case." United States of America v. Philip Morris and Others.
Please also see Obtaining Evidence for Use in EU Countries.