Brazil: Hague Evidence Convention

The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (known as “The Hague Evidence Convention”) has been in force in Brazil since 27 April 2017 (via Decree 9,039/2017).

Among other advantages, the Convention expressly eliminates the need for requests for the obtaining of evidence to be sent to Brazil via diplomatic channels.

What did Brazil exclude and declare?

Brazil chose to:

• exclude the application of the second paragraph of Article 4, which provides that a contracting state must accept a letter of request in either English or French, or a translation into one of these languages;
• exclude Chapter II in its entirety, which provides the rules for taking evidence by diplomatic officers, consular agents and commissioners; and
• declare that it will not execute Letters of Request issued for the purposes of pre-trial discovery or disclosure of documents.

Soon after the Convention came into force, my firm was retained to act on some of the first requests sent to Brazil under the Convention. Our clients were seeking various documents relating to a class action filed in the U.S. District Court for the Southern District of New York against one of the largest Brazilian banks.

We successfully obtained the orders sought by the client. Brazil’s Superior Court of Justice was fairly quick in handing down its decisions and did not interpret the restrictions on pre-trial discovery and disclosure strictly.

Is pre-trial discovery or disclosure available in Brazil?

Not as widely as in common law jurisdictions, especially in the United States.

Foreign litigants should be careful when assessing the prospects of their cases if the evidence required to prove their claims is located in Brazil, especially when the evidence is held by third parties.

However, the good news is that the Superior Court of Justice found that Brazil’s declaration under Article 23 regarding pre-trial discovery and disclosure of documents merely prevented “the abusive collection of evidence” held by companies or individuals. In practice, this means that pre-trial discovery for non-parties will be much more limited in scope than US or UK style discovery.

Can evidence be obtained from government bodies?

In the matter handled by my firm, the specific request sought evidence held by the Brazilian Federal Prosecutor (the Public Ministry or “Ministério Público”). The Superior Court of Justice decided that there was “no objection to complying with the request sought by the foreign Court in sharing specified evidence that may be held by the Federal Prosecutor” where the evidence “would be relevant for the trial of an action in course before foreign courts”.

Good drafting is key

Given the Superior Court of Justice’s flexible approach to interpreting the limitations of pre-trial discovery, a carefully drafted Letter of Request can bear fruit, with important documents being discovered or disclosed. If the request is too wide it will be rejected; if it is too narrow, the documents sought may not be obtained in full.

Practical guide: Letters of Request and expected timing

The following is a practical overview of the process for foreign parties seeking evidence in Brazil under the Convention.

Central Authority. Brazil’s designated Central Authority under the Convention is the Superior Court of Justice (STJ). All Letters of Request must be addressed to the STJ, which will then coordinate execution through the competent first-instance federal court in the judicial district where the evidence is located or where the person to be examined resides.

Language. As noted above, Brazil has excluded the obligation to accept Letters of Request in English or French. All requests must therefore be in Portuguese, or accompanied by a certified translation (tradução juramentada) into Portuguese. Failure to comply with this requirement will result in the request being returned without execution.

What the Letter of Request must contain. To be accepted for execution, a Letter of Request should include:

• the identity and address of the requesting judicial authority;
• the names and addresses of the parties to the proceedings and their representatives;
• the nature of the proceedings and a summary of the facts;
• the evidence to be obtained or the judicial act to be performed, described with sufficient precision to allow execution;
• the names and addresses of any persons to be examined; and
• the questions to be put to persons to be examined, or a statement of the subject matter about which they are to be examined.

Pre-trial discovery requests. Given Brazil’s Article 23 declaration, any Letter of Request that is framed as a broad discovery request in the US style is likely to be refused. Requests should be targeted, specifying particular documents or categories of documents with sufficient particularity to demonstrate that the request is not abusive within the meaning given to that term by the STJ.

Expected timing. Processing times at the STJ have been more efficient than under the former diplomatic channels route. That said, execution of a Letter of Request in Brazil typically involves three stages: review and acceptance by the STJ, transmission to the competent first-instance federal court, and actual execution by that court (which may involve serving notice on the party holding the evidence and allowing time for objections). In straightforward matters, the entire process can take between six and twelve months. Complex requests, or those involving parties who contest the order, may take considerably longer.

Note that the Hague Service Convention is also in force in Brazil.

Questions?

Contact me if you would like further information. My firm is ready to assist you.

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Last modified: 4 April 2026