Letters rogatory in Massachusetts are formal court-to-court requests for judicial assistance, and state courts can both issue them to foreign tribunals and execute incoming requests under Chapter 223A, Section 11 of the Massachusetts General Laws. That statute lets a Massachusetts court order anyone domiciled in or found within the commonwealth to give testimony or produce documents for a proceeding outside Massachusetts, whether that proceeding sits in another country, a federal court, or another state. The process typically runs through diplomatic channels and can take a year or more, so before you commit to it, check whether a faster alternative applies.
What a Letter Rogatory Is
A letter rogatory is a formal request from a court in one jurisdiction asking a court in another to help gather evidence or perform a judicial act. The requesting court drafts the letter, explains what it needs and why, and sends it to the receiving court through official channels. If the receiving court agrees, it carries out the request under its own procedures and sends the results back.
The system rests on comity, meaning the mutual courtesy legal systems extend to one another. No court is legally obligated to honor a letter rogatory. A foreign court can decline a request that conflicts with its own law or public policy, and you have no appeal if it simply sits on the request. That uncertainty is the reason to look hard at alternatives first.
The Massachusetts Statute: Chapter 223A, Section 11
Section 11 gives Massachusetts courts broad authority to compel discovery for use elsewhere. On a letter rogatory from a foreign tribunal or on the application of any interested person, a Massachusetts court can order someone in the state to give testimony, provide a statement, or produce documents for a proceeding before any tribunal outside the commonwealth.1General Court of Massachusetts. Massachusetts Code Chapter 223A Section 11 – Discovery Within Commonwealth for Proceedings Outside Commonwealth
The court has flexibility in how the order is structured. It can adopt the practice and procedure of the foreign tribunal, use Massachusetts procedure, or combine the two. If the order is silent, Massachusetts rules of procedure apply by default.1General Court of Massachusetts. Massachusetts Code Chapter 223A Section 11 – Discovery Within Commonwealth for Proceedings Outside Commonwealth The court can also appoint a person to oversee the testimony or document production, and that appointee can administer oaths, which matters when the foreign tribunal requires sworn testimony in a specific form.
The Healthcare Activity Exception
Section 11 contains a carve-out that matters to anyone served with an incoming request. A Massachusetts court cannot order testimony or documents for an out-of-state proceeding that concerns “legally-protected health care activity,” unless federal law requires it.1General Court of Massachusetts. Massachusetts Code Chapter 223A Section 11 – Discovery Within Commonwealth for Proceedings Outside Commonwealth Under Massachusetts law, that term covers reproductive health care services and gender-affirming health care services that are legal in the state, along with acts undertaken to aid or encourage someone in accessing them. If the provider is licensed in Massachusetts and physically present here, the services are protected regardless of where the patient is located.2Mass.gov. Massachusetts General Laws c.12 Section 11I 1/2 A Massachusetts court will refuse to execute a letter rogatory from another state or country that seeks evidence tied to those services.
Check the Faster Alternatives First
Letters rogatory are the default tool, not the only one, and they are usually the slowest. Two alternatives are worth checking before you draft one.
The Hague Evidence Convention
The Hague Evidence Convention replaces diplomatic channels with a direct channel between judicial authorities through each country’s designated Central Authority. The United States has been a party since 1972, and 69 countries are currently members.3HCCH. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters – Status Table When the target country is a signatory, a Hague “letter of request” is almost always faster and simpler than a letter rogatory. Under State Department guidance, Hague requests need no authentication and can be submitted directly to the foreign Central Authority.4U.S. Department of State Foreign Affairs Manual. 7 FAM 930 Compulsion of Evidence Using letters rogatory when a Hague request would work is one of the most common and most avoidable sources of delay in cross-border discovery.
28 U.S.C. § 1782
Section 1782 lets any federal district court order a person residing or found in the district to give testimony or produce documents for use in a proceeding before a foreign or international tribunal. The order can be made on a letter rogatory or on the application of any interested person, so the party seeking evidence does not necessarily need the foreign court to issue a formal request first. Discovery under § 1782 follows the Federal Rules of Civil Procedure unless the court orders otherwise, which opens up the full range of U.S. discovery tools. Privileged material is still protected.5Office of the Law Revision Counsel. 28 U.S. Code 1782 – Assistance to Foreign and International Tribunals and to Litigants Before Such Tribunals
One boundary. After the Supreme Court’s 2022 decision in ZF Automotive US, Inc. v. Luxshare, Ltd., § 1782 does not reach private commercial arbitration. The Court held that a “foreign or international tribunal” under the statute must be a governmental or intergovernmental adjudicative body, and private arbitration panels created by contract do not qualify.6Supreme Court of the United States. ZF Automotive US, Inc. v. Luxshare, Ltd. If your proceeding is a private commercial arbitration abroad, § 1782 will not help you.
Sending a Letter Rogatory From Massachusetts
If your Massachusetts case needs evidence located abroad and the Hague Convention is not available, you’ll start with a motion asking the court to issue a letter rogatory. The letter has to identify the specific testimony, documents, or other evidence you need, explain its relevance to the Massachusetts proceeding, and describe the judicial assistance you are requesting from the foreign court.
For countries that are not parties to the Hague Convention, the letter rogatory and all accompanying documents must be translated into the language of the foreign country and submitted in duplicate (an original and one copy of both the English and translated versions) to the State Department or the relevant U.S. Embassy.4U.S. Department of State Foreign Affairs Manual. 7 FAM 930 Compulsion of Evidence The State Department then transmits the request to the foreign jurisdiction through diplomatic channels. 28 U.S.C. § 1781 is the federal statute that authorizes that transmittal and also permits direct transmission between tribunals when appropriate.7Office of the Law Revision Counsel. 28 U.S. Code 1781 – Transmittal of Letter Rogatory or Request
Responding to a Letter Rogatory Received in Massachusetts
Incoming requests reach Massachusetts in one of three ways: through the State Department, by direct transmission from the foreign tribunal, or through the Hague Convention Central Authority mechanism.7Office of the Law Revision Counsel. 28 U.S. Code 1781 – Transmittal of Letter Rogatory or Request A Massachusetts court receiving the request evaluates whether to issue an order under Section 11, considering whether the request is properly made, whether it conflicts with Massachusetts law or public policy, and whether the healthcare activity exception applies.
If the court grants the request, it issues an order specifying what the witness must provide and the procedures that will govern. The witness can object on the usual grounds, including privilege. Once the testimony is taken or documents produced, the results are transmitted back to the requesting jurisdiction.
Timeline and Costs
The State Department warns that execution of letters rogatory may take a year or more.8U.S. Department of State. Preparation of Letters Rogatory That estimate is realistic, and longer delays are common. Translation, transmission through diplomatic channels, scheduling by the foreign court, execution, and the return trip all take time. Hague Convention requests move faster, but even those are not quick by domestic litigation standards.
Costs come from several directions. The State Department charges consular fees for transmitting letters rogatory, with the current schedule at 22 CFR 22.1. Foreign authorities may charge their own fees, and multiple witnesses in different jurisdictions within the foreign country can mean multiple court fees.8U.S. Department of State. Preparation of Letters Rogatory Translation, authentication, and attorney time add to that. One administrative detail worth getting right the first time: the State Department requires a certified check payable to the U.S. Embassy in the relevant foreign capital, and corporate or personal checks are not accepted.
Where the Process Goes Wrong
The most persistent challenge is the gap between U.S.-style discovery and what foreign legal systems will provide. American discovery is broad. Many foreign countries, particularly civil law jurisdictions, consider U.S.-style document requests overly intrusive. A foreign court may narrow the scope of a letter rogatory, return only partial results, or decline the request entirely if it reads as a fishing expedition under local standards.
Language barriers go beyond translation. Legal terminology does not always have clean equivalents across languages, and a poorly translated request can be ambiguous or unintelligible to the receiving court. A translator with legal expertise in both systems is worth the premium over a general-purpose translator.
Bureaucratic bottlenecks are another reality. Diplomatic channels involve multiple government agencies on both sides, each with its own processing times. A request stuck at any point in the chain can sit for months unless someone is actively tracking it. Filing the paperwork and assuming it is moving forward is how practitioners discover, late, that it isn’t.
Finally, comity is not enforcement. You cannot appeal a foreign court’s decision to ignore or delay a letter rogatory. When evidence is time-sensitive, that is the strongest argument for using the Hague Convention or § 1782 whenever either is available.