Taking Evidence from Russia for English and International Proceedings

Obtaining evidence located in Russia requires a distinction between control and coercion.

An English court may order a party before it to disclose documents within that party’s control, even if the documents are physically stored in Russia. Under CPR 31.8, control includes possession, a right to possession, or a right to inspect or copy the documents.

An English order does not, however, directly compel a Russian non-party, witness, bank or public authority. Coercive measures in Russia generally require the involvement of a Russian court acting under Russian law and an applicable international treaty.

The main routes are:

1. voluntary collection through Russian counsel;
2. a Letter of Request under the Hague Evidence Convention;
3. preservation of evidence by a Russian notary; and
4. limited Russian court assistance in arbitration.

Where witnesses and custodians cooperate, voluntary collection is usually the fastest option.

A Russian licensed legal "advocate", called advokat, may interview consenting witnesses, collect documents and engage specialists. An advocate may also issue a statutory request for information, although disclosure may be refused where the requested information is legally protected or the formal requirements are not met.

For sensitive matters, counsel should distinguish between a Russian advokat, whose professional secrecy is protected by federal law, and other legal consultants who may not have the same statutory status.

The collection process should record:

• who contacted and interviewed the witness;
• the language used and the identity of any interpreter;
• how the statement was drafted and amended;
• the source and custodian of each document;
• the location of originals and native electronic files; and
• any privilege, secrecy or data-protection issue.

A witness statement for English proceedings should be drafted in the witness’s own language and, as far as possible, in the witness’s own words. Any use of an interpreter should be disclosed. A Russian-language statement must be translated for use in England and Wales in accordance with Practice Direction 32.

Certification of a signature by a Russian notary confirms the identity of the signatory. It does not prove that the contents of the statement are true.

A notarised signature also does not automatically turn a witness statement into an affidavit. Where sworn evidence is required, the oath or affirmation procedure must comply with CPR 32.17 or the law of the place where the affidavit is made.

An informal interview should not be described as a deposition unless it was conducted under a formal court-authorised procedure.

The United Kingdom and Russia are parties to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The Convention has applied between them since 19 January 2002.

Where another requesting State is involved, its bilateral treaty relationship with Russia should be checked. Russia joined the Convention by accession, so the Convention operates only between Russia and States that accepted that accession.

Under Article 1, a judicial authority may request a Russian court to obtain evidence for civil or commercial proceedings that have commenced or are contemplated.

The Convention does not provide a general mechanism for enforcing judgments, serving proceedings or obtaining asset-freezing measures.

Under CPR 34.13, the High Court may issue a Letter of Request asking a foreign judicial authority to take evidence.

The application is made under Part 23 and normally includes:

• a draft Letter of Request;
• an explanation of the relevant issues;
• proposed questions or their subject matter;
• details of documents sought;
• a Russian translation;
• an undertaking concerning official expenses; and
• a draft order.

The application is handled through the Foreign Process Section of the Royal Courts of Justice.

Because the HCCH’s online materials do not currently identify a Russian Central Authority specifically for the Evidence Convention, the transmission route should be confirmed with the Foreign Process Section before the application is finalised. Practitioners should not assume that the Russian authority designated for service of documents also receives evidence requests.

A Letter of Request should not reproduce broad English or US-style discovery language.

Russian procedure generally requires the requesting party to identify:

• the specific evidence sought;
• the facts it is intended to prove or disprove;
• why the evidence cannot be obtained voluntarily; and
• where the evidence is located.

That is, the request should specify the witness or custodian, relevant transactions, dates, accounts, communications and document categories. Requests for “all documents relating to the dispute” or an entire email account are likely to face difficulty.

The Letter should also state:

• why the evidence is material;
• whether voluntary cooperation was refused;
• any requested oath or affirmation;
• whether a transcript or recording is required;
• how exhibits should be identified;
• any special examination procedure; and
• any relevant privilege or right to refuse evidence.

Under Article 9 of the Convention, the Russian court applies Russian procedural law. It may follow a special method requested by the foreign court unless that method is incompatible with Russian law or impracticable.

The Russian judge will retain control of the examination. Foreign counsel should not assume that an unrestricted common-law cross-examination will be permitted.

Article 11 of the Convention allows a person to rely on a privilege or duty to refuse evidence under Russian law or the law of the requesting State. Any English privilege should be clearly described in the Letter.

Russian law also recognises testimonial protections, including the right not to give evidence against oneself, a spouse or certain close relatives. Advocates and arbitrators are protected in relation to information learned through their professional functions.

Execution may be refused where it falls outside the functions of the Russian judiciary or would prejudice Russian sovereignty or security. Russian procedural law also permits refusal on certain public-policy, jurisdictional and authenticity grounds.

The Letter and supporting documents should be translated into Russian. The translation should be certified as accurate.

Legal terminology requires particular care. For example, a Russian state arbitrazh court is a commercial court, not an arbitral tribunal. “Disclosure”, “production”, “deposition”, “affidavit” and “privilege” also require context-sensitive translation.

Russia has made no declaration under Article 23 of the Convention refusing pre-trial discovery requests.

That does not create a right to broad common-law discovery. Russian courts will still apply Russian procedural standards and expect the evidence to be specific, relevant and capable of judicial execution.

The Convention’s procedures involving diplomatic officers, consular agents or commissioners are essentially voluntary in Russia. Russia has not made Article 18 applicable, so those persons cannot obtain Russian coercive assistance. Where a witness refuses to cooperate, a judicial Letter of Request is normally required.

A witness giving evidence from Russia remains subject to Russian territorial jurisdiction, even where the court or tribunal is located abroad.

Practice Direction 32 requires parties to investigate whether the foreign State permits evidence to be given by video link. English court permission is also required.

Current UK government guidance states that the UK authorities are not able to secure Russian governmental agreement for persons in Russia voluntarily to give evidence by video link in UK civil, commercial or administrative proceedings.

Practitioners should therefore not arrange an informal video appearance without first considering:

• English procedural permission;
• current Foreign, Commonwealth and Development Office guidance;
• Russian legal advice;
• whether a Hague Letter is required; and
• an alternative if live evidence is unavailable.

A private recorded interview may still be challenged because it lacks an oath, judicial supervision or cross-examination.

Russian notaries may preserve evidence where there is a risk that it will later disappear or become difficult to present.

A notary may question witnesses, inspect documents and physical objects, appoint experts and record information available online. Russian law expressly allows notarial preservation for proceedings before foreign authorities.

This procedure is particularly useful for:

• websites and social-media pages;
• online advertisements;
• electronic messages;
• database content;
• file metadata;
• the condition of goods or premises; and
• evidence from a cooperative witness who may later become unavailable.

For online evidence, the notarial protocol should record the address, access route, date and time, account used, sequence of navigation, visible content, attachments and relevant metadata.

A notarial record proves what the notary observed and how the inspection was conducted. It does not automatically prove that every statement displayed online is true or that an electronic communication was authored by the person named in it.

Russian civil procedure recognises electronic documents, internet communications and electronically signed materials as potential written evidence.

Whenever possible, collection should preserve:

• native files;
• complete email headers;
• attachments;
• metadata;
• system exports;
• audit logs;
• hash values;
• device and account information;
• time-zone information; and
• chain-of-custody records.

Screenshots and printed PDFs may be insufficient where authenticity or manipulation is disputed.

A notary may record what was visible at a particular time. A forensic expert may address origin, integrity, deletion, recovery and system architecture. These functions are complementary.

Foreign proceedings do not override Russian personal-data, banking-secrecy, commercial-secrecy or advocate-secrecy rules.

Before transferring personal data from Russia, counsel should determine:

• who is the relevant data operator;
• the legal basis for disclosure;
• whether the transfer is necessary and proportionate;
• whether data can be minimised or redacted;
• whether regulatory notification is required;
• the identity and location of foreign recipients;
• applicable security measures; and
• whether onward transfer is contemplated.

Russian personal-data law regulates cross-border transfers and requires operators to notify the Russian data-protection authority before commencing such transfers. Transfer conditions may depend on the destination country and the regulator’s review powers.

Russian localisation rules also restrict the use of foreign databases for the initial collection and storage of personal data of Russian citizens. Localisation and cross-border transfer are related but separate issues.

Bank records, advocate-client communications and properly protected commercial secrets require particular caution. Relevance to foreign proceedings does not, by itself, authorise voluntary disclosure.

Russian courts may assist certain arbitral tribunals in obtaining evidence, but the procedure is narrow.

The special assistance mechanism generally applies where:

• the arbitral seat is in Russia; and
• the arbitration is administered by a qualifying permanent arbitral institution.

It may be used for specified written, physical or other evidence.

Russian courts must refuse this form of assistance where the request comes from an ad hoc tribunal or a tribunal seated outside Russia. Additional restrictions apply to protected secrets, third-party rights and non-arbitrable disputes.

In other words, Russian court assistance is not a general evidence-gathering route for London-, Paris-, Singapore- or other foreign-seated arbitrations.

A foreign-seated tribunal should first consider voluntary collection and Russian notarial preservation. Where coercion is required, counsel should examine whether a court at the arbitral seat can issue a judicial Letter of Request. The tribunal itself should not assume that it is a “judicial authority” entitled to use the Hague Convention.

Authentication requirements depend on the receiving forum and the document concerned.

A Hague Letter of Request cannot be subjected to law. Separate Russian public or notarial documents may nevertheless require an apostille or another form of authentication.

An apostille authenticates the official signature, capacity and seal. It does not prove the substantive truth of the document.

For every item of evidence, three questions should be kept separate:

1. Is the document authentic?
2. Is it admissible?
3. What does it prove?

Notarisation, an apostille or a certified translation may assist with authenticity. They do not automatically determine admissibility or evidential weight.

For advice on obtaining, preserving and using evidence located in Russia, Vasiliy Tarasenko, a Russian advocate experienced in cross-border disputes, can assist foreign law firms, companies and private clients at every stage of the process. The work may include interviewing witnesses, collecting and reviewing documents, arranging Russian notarial evidence-preservation procedures, coordinating Letters of Request, addressing data-protection, privilege and confidentiality issues, and preparing evidence for use in English and international court or arbitration proceedings. Assistance can be provided directly in English and in coordination with counsel in the relevant foreign jurisdiction.