A litigant demonstrating that an adversary has hidden assets offshore, bears the burden of proof in court under Federal Rule of Evidence 301 or other evidentiary rules. Such a litigant may be able to satisfy this burden with admissible evidence like authenticated copies of an adversary’s offshore bank account records. Evidence like admissible copies of offshore bank account records is however, often located out of the U.S. or otherwise difficult to obtain.
My post “Money Laundering, Marital Assets & Divorce” for example, explained how one divorcing spouse used cross-border elements and a sham loan to conceal his assets. In this kind of situation, a letter rogatory, (a.k.a “a request for legal assistance” or “letter of request”), can play a vital role in a litigant’s offshore asset search. This is true because a letter rogatory may possibly be used to elicit legally sufficient evidence from an offshore bank or other foreign witness.
A letter rogatory can sometimes be filed as mentioned by the Hague Evidence Convention (20: Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters Hague Convention). Examples of some letters rogatory can be found at my posts “An Asset Search In Israel” & “An Asset Search In Switzerland.”
A variety of factors ordinarily determine how effective a letter rogatory will be in eliciting evidence from a foreign bank or other foreign witness. Some of these factors may include:
- Whether the letter rogatory is filed pursuant to any foreign law exceptions to bank secrecy / professional secrecy laws;
- Whether competent foreign counsel has been retained to help draft and then further prosecute the letter rogatory;
- And whether the Court perceives a letter rogatory to be a fishing expedition because it is overly broad.
(Edited February 25, 2015)
Copyright 2008-2018 Fred L. Abrams