Assisting Parties
in U.S. Disputes
Brazilian evidence, service of process, and cross-border litigation support for U.S. counsel.
When a U.S. case has a Brazilian connection, the procedural steps that follow are governed by treaty mechanisms that reward careful preparation. D&Q Lawyers has acted on some of the first requests sent to Brazil under the Hague Evidence Convention, including matters before the U.S. District Court for the Southern District of New York.
Contact UsTwo treaties now apply: Brazil is party to both the Hague Evidence Convention (in force since April 2017) and the Hague Service Convention (in force since June 2019). Both replaced the slower letters rogatory route for most procedural steps.
Brazilian discovery is limited, but not closed: Brazil’s Article 23 declaration under the Hague Evidence Convention restricts U.S.-style broad discovery. However, the Superior Court of Justice (STJ) has interpreted this narrowly: targeted, specific requests for documents or testimony can succeed.
Everything must be in Portuguese: Brazil has excluded the obligation to accept Letters of Request in English. All Letters of Request and service documents must be in Portuguese or accompanied by a certified translation. This is a hard requirement; failure to comply results in the request being returned unexecuted.
The STJ is Brazil’s Central Authority: Under both Conventions, all requests addressed to Brazil must go through the STJ, which coordinates execution through the competent federal court. There is no direct service by mail from abroad.
Government-held evidence can be reached: D&Q has obtained orders requiring production of evidence held by Brazil’s Federal Prosecutor’s Office (Ministério Público Federal). Brazilian courts have approved disclosure of government-held evidence where it is relevant to foreign proceedings.
U.S. judgments require STJ recognition: A U.S. judgment cannot be enforced directly in Brazil. It must first be recognized by the STJ through a homologação proceeding before execution in Brazilian courts can begin.
When your U.S. case touches Brazil, you need someone who understands both systems.
U.S. litigation increasingly intersects with Brazilian parties, witnesses, documents and assets. Securities class actions, antitrust matters, international fraud, trade disputes and enforcement proceedings all generate procedural needs in Brazil that U.S. counsel cannot address through domestic process alone. Serving a Brazilian defendant, obtaining documentary evidence from a Brazilian company or government body, deposing a Brazilian witness, or enforcing a U.S. judgment in Brazil each requires navigating a distinct legal framework with specific formal requirements.
The treaty framework has improved significantly in recent years. Brazil joined the Hague Evidence Convention in 2017 and the Hague Service Convention in 2019. Both replaced the former diplomatic channels route, which could take several years to yield results. Under the Conventions, targeted requests processed through the Superior Court of Justice (STJ) now move considerably faster, though “faster” in the Brazilian context still means months, not weeks.
D&Q Lawyers is uniquely positioned to assist U.S. counsel with these needs. Fabiano Deffenti, the firm’s Senior Partner, is licensed as an attorney-at-law in New York in addition to his Brazilian and Australasian admissions. He has acted for U.S. clients in class actions with a Brazilian nexus, including on some of the first Letters of Request sent to Brazil under the Hague Evidence Convention following the Convention’s entry into force. That experience informs every aspect of how D&Q approaches cross-border requests: the drafting of the request, the translation strategy, the management of the STJ process and the execution at first-instance federal court level.
This guide addresses the specific procedural mechanisms available to U.S. counsel when a dispute has a Brazilian connection: evidence gathering under the Hague Evidence Convention, service of process under the Hague Service Convention, enforcement of U.S. judgments and awards, and the practical realities of each. For background on Brazilian litigation and arbitration more generally, see our guides on litigating in Brazil and arbitrating in Brazil.
Why U.S. counsel retains D&Q Lawyers for Brazilian litigation support
Three qualifications that matter when the procedural steps cross jurisdictions.
Licensed attorney-at-law in New York
Fabiano Deffenti is licensed as an attorney-at-law in New York. He understands U.S. federal civil procedure, the demands of district court practice and what U.S. counsel needs from a Brazilian correspondent. That cross-system fluency eliminates the miscommunications that slow down most cross-border legal requests. When D&Q drafts a Letter of Request or manages service, it does so with a clear understanding of the U.S. proceeding on the other end.
Admitted to practice in Brazil; STJ experience
Fabiano is admitted to practice in Brazil. D&Q has direct experience before the Superior Court of Justice in Hague Convention proceedings, including matters involving requests for evidence held by Brazilian government agencies. The firm understands how the STJ interprets the Convention’s limitations and what it takes to get a request accepted, processed and executed rather than returned on procedural grounds.
First-generation Hague Evidence Convention experience in Brazil
When the Hague Evidence Convention entered into force in Brazil in April 2017, D&Q was retained to act on some of the first requests sent to Brazil under the Convention. The matter involved a securities class action filed in the U.S. District Court for the Southern District of New York (S.D.N.Y.) against one of the largest Brazilian banks. The firm successfully obtained the orders sought, including evidence held by the Brazilian Federal Prosecutor’s Office.
U.S. class actions with a Brazilian party or Brazilian-held evidence
Shortly after the Hague Evidence Convention entered into force in Brazil in April 2017, D&Q was retained to act as Brazilian counsel for the U.S. requesting party, aiding the lead plaintiff in In re Bradesco Securities Litigation before the U.S. District Court for the Southern District of New York against one of Brazil’s largest banks. The requests sought specific documents relevant to the class’s claims. D&Q successfully obtained the orders sought. The STJ moved relatively quickly in handling the requests and did not apply Brazil’s Article 23 pre-trial discovery limitation broadly, instead reading it as a restriction on abusive or overly broad collection of evidence rather than a bar on targeted, specific requests.
The STJ’s decision in this matter is the leading Brazilian precedent on the scope of discovery under the Hague Evidence Convention. D&Q attorneys Fabiano Deffenti, Luciana Queiroz and Vanessa Borges appeared for the U.S. requesting party in the Brazilian proceedings.
In the Bradesco matter, specific requests targeted evidence held by the Ministério Público Federal (Federal Prosecutor’s Office). The STJ ruled that there was no objection to sharing specified evidence held by the Federal Prosecutor where that evidence would be relevant to the trial of an action in a foreign court. This was significant: it confirmed that Hague Convention requests in Brazil are not limited to private parties and can reach government-held materials.
U.S. securities class actions, antitrust cases, FCPA matters and fraud litigation increasingly involve Brazilian entities as defendants, witnesses or document custodians. Brazilian companies listed on U.S. exchanges, Brazilian subsidiaries of U.S. corporations, and Brazilian individuals named in U.S. proceedings all create procedural demands that must be managed through Brazilian channels. D&Q assists U.S. lead counsel from the initial assessment of what is obtainable through Brazilian process to the execution and delivery of results.
- Securities litigation: Class actions involving Brazilian companies listed on U.S. exchanges, including ADR programs, often require evidence of corporate decisions, financial records and communications held entirely in Brazil.
- FCPA and anti-corruption matters: Enforcement actions under the Foreign Corrupt Practices Act frequently involve Brazilian counterparties. Evidence of improper payments, approval chains and internal communications may be located in Brazil and held by Brazilian entities or government agencies.
- Antitrust and competition: Cartel investigations and follow-on civil litigation involving Brazilian market participants may require evidence of commercial communications, pricing discussions and distribution arrangements maintained in Brazil.
- Fraud and asset recovery: Tracing fraudulently transferred assets to Brazilian accounts or entities requires both evidentiary process under the Hague Evidence Convention and, ultimately, enforcement proceedings in Brazilian courts.
- Product liability: Class actions against manufacturers with Brazilian production operations may require factory records, quality control documentation and communications with Brazilian regulatory authorities.
- Environmental and human rights litigation: Matters arising from operations in Brazil, including mining, energy and agriculture, often involve Brazilian government agency records, environmental assessments and regulatory correspondence.
Obtaining evidence in Brazil for U.S. proceedings
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters has been in force in Brazil since April 27, 2017 (via Decree 9,039/2017). It provides the principal mechanism for U.S. counsel to obtain evidence located in Brazil for use in U.S. proceedings.
Central Authority: the STJ
Brazil’s designated Central Authority under the Convention is the Superior Court of Justice (STJ). All Letters of Request must be addressed to and processed through the STJ. The STJ reviews the request for compliance, then transmits it to the competent first-instance federal court in the judicial district where the evidence is located or where the person to be examined resides. That court handles actual execution, which may involve notifying the holding party and allowing time for objections.
Language requirement: Portuguese only
Brazil excluded the second paragraph of Article 4 of the Convention, which would have required it to accept Letters of Request in English or French. All Letters of Request submitted to Brazil must therefore be in Portuguese, or accompanied by a certified translation (tradução juramentada) into Portuguese. This is a hard procedural requirement. A request submitted in English without a certified Portuguese translation will be returned unexecuted. D&Q manages the translation process and ensures that technical legal content is rendered accurately in both languages.
Brazil’s Article 23 declaration: pre-trial discovery
Brazil declared under Article 23 that it will not execute Letters of Request “issued for the purposes of obtaining pre-trial discovery of documents.” This is the most significant procedural limitation for U.S. counsel accustomed to broad document discovery. However, the STJ has interpreted this declaration narrowly: it prevents “abusive collection of evidence,” not targeted, specific requests. A carefully drafted request that identifies particular documents or categories of documents with sufficient precision is substantially more likely to succeed than a broad U.S.-style discovery demand.
Chapter II excluded: no foreign depositions on Brazilian soil
Brazil also excluded Chapter II of the Convention, which governs the taking of evidence by diplomatic officers, consular agents and commissioners. This means that U.S. diplomatic or consular personnel cannot conduct depositions of Brazilian witnesses on Brazilian territory under the Convention framework. Evidence from Brazilian witnesses must be obtained through the STJ process under Chapter I, not through U.S. consular channels. This is a meaningful difference from practice with some other Convention countries.
Government-held evidence
The STJ has confirmed that Letters of Request are not limited to private party custodians. In D&Q’s S.D.N.Y. class action matter, the STJ approved a request for specified evidence held by the Ministério Público Federal (Federal Prosecutor’s Office), ruling that there was no objection to sharing government-held evidence where it would be relevant to the trial of an action before a foreign court. This opens an important channel in FCPA investigations, anti-corruption matters and cases where Brazilian regulatory or prosecution materials are relevant to U.S. proceedings.
Expected timing
Processing a Letter of Request in Brazil involves three stages: review and acceptance by the STJ, transmission to the competent first-instance federal court, and execution by that court (including service of notice on the custodian and any objection period). In straightforward matters, the entire process takes approximately six to twelve months. Contested requests, or those involving parties who challenge the order, can take considerably longer. U.S. counsel should build this timeline into case management planning, particularly for pre-trial deadlines.
What a Letter of Request to Brazil must contain
Required contents
To be accepted for execution by the STJ, a Letter of Request addressed to Brazil must include: the identity and address of the requesting judicial authority; the names and addresses of the parties and their representatives; the nature of the proceedings and a summary of the facts; a description of the evidence to be obtained or judicial act to be performed, with sufficient precision to allow execution; the names and addresses of any persons to be examined; and the questions to be put to those persons, or a statement of the subject matter of the examination.
The Letter must also attach the issuing court’s authorization for the request. U.S. district courts typically issue the authorization by endorsing the Letter of Request with the judge’s signature and the court’s seal. D&Q advises on the precise form required by the STJ based on current practice.
Scope: the difference between approval and rejection
The STJ’s interpretation of Brazil’s Article 23 declaration turns on whether the request is a targeted, specific request or an abusive collection of evidence. In practice, this distinction mirrors the difference between a 28 U.S.C. §1782 application that identifies specific documents and a broad discovery demand that asks for “all documents relating to” a subject matter.
Requests that specify documents by type, date range, author or subject with particularity are far more likely to be approved. Requests framed in terms of relevance to issues in the U.S. proceeding, without identifying the specific evidence sought, are likely to be treated as impermissible pre-trial discovery and rejected. D&Q reviews draft requests before submission to assess their likelihood of execution under current STJ practice.
Certified translation requirements
All materials submitted to the STJ under the Hague Evidence Convention must be in Portuguese or accompanied by a certified translation. Brazil requires tradução juramentada: a sworn translation prepared by a translator registered with the Commercial Registry (Junta Comercial) in the relevant Brazilian state. Standard commercial translations, notarized translations, or translations certified by a U.S. notary public do not satisfy this requirement.
D&Q coordinates certified translation for all Letters of Request and supporting materials. The cost and time for translation must be factored into case planning. For complex matters with substantial supporting materials, the translation process alone can take two to four weeks.
Interaction with Section 1782 applications
28 U.S.C. §1782 authorizes U.S. district courts to order persons residing or found in the United States to produce discovery for use in foreign or international proceedings. Where the target of evidence is a U.S. person or entity with custody of Brazilian-source documents, a §1782 application may be an alternative or complement to a Letter of Request under the Hague Evidence Convention. However, where the custodian is located in Brazil and not subject to U.S. jurisdiction, the Hague Evidence Convention route is typically the only available mechanism.
D&Q advises on the appropriate channel depending on where the evidence and custodian are located, the nature of the U.S. proceeding and the time available. In some cases, parallel requests under both mechanisms offer the best coverage.
Serving process on Brazilian defendants and witnesses
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters has been in force in Brazil since June 1, 2019 (Decree 9,734/2019). It replaced the letters rogatory route for service on Brazilian defendants in most civil and commercial matters.
Central Authority: the STJ
As with the Hague Evidence Convention, Brazil’s Central Authority under the Hague Service Convention is the STJ. All service requests must be addressed to the STJ, which coordinates forwarding to the appropriate first-instance federal court in the defendant’s jurisdiction for actual service. The STJ has been consistent in processing service requests and courts have generally been willing to grant the exequatur (the STJ’s authorization order) and attempt service.
Portuguese translation required
Brazil declared under Article 5 that all judicial documents to be served must be accompanied by a Portuguese translation. The standard request form annexed to the Convention (in English or French) does not require translation, but all substantive documents (summons, complaints, court orders) must be rendered into Portuguese. Again, the translation must be a certified tradução juramentada. U.S. counsel serving a Brazilian defendant should budget for certified translation of the complaint and summons as a required step before the process package can be submitted.
No postal service or consular service
Brazil made two further declarations that significantly affect the service options available to U.S. counsel. First, Brazil excluded Article 10, which would have permitted service by postal channels directly from abroad and direct requests to judicial officers. All service must go through the STJ as Central Authority. Second, Brazil excluded Article 8, which would have permitted foreign diplomatic or consular agents to serve process. U.S. Embassy or consular personnel cannot effect service on Brazilian parties on Brazilian soil under the Convention.
Arbitration: Convention does not apply
The Hague Service Convention applies to judicial proceedings only, not to arbitration. For service of process in arbitration proceedings, the applicable rules are those of the arbitral institution or the arbitration agreement. An arbitral award issued in any proceeding satisfying the requirements of the New York Convention is separately enforceable in Brazil through the STJ recognition process regardless of how service was effected.
Expected timing
Service under the Hague Service Convention is faster than the former letters rogatory route, but U.S. counsel should not expect rapid results. The process involves: submission of the request package to the STJ; the STJ’s review and issuance of the exequatur; forwarding to the local federal court; and actual service by a court officer (oficial de justiça). In straightforward cases, the entire process can take three to nine months. Defendants who contest service or who are difficult to locate may extend that timeline considerably. D&Q has acted for many foreign clients effecting service in Brazil over the past two decades and can advise on realistic timelines for specific situations.
Default judgments and proof of service
For default judgment purposes in U.S. proceedings, counsel will need a certificate of service from the Brazilian court confirming that service was actually effected and the date. The Convention provides a standard certificate form for this purpose. The Brazilian court’s certificate of service constitutes sufficient proof for U.S. default judgment purposes under the Convention. D&Q can assist in obtaining and authenticating the Brazilian service certificate for use in the U.S. proceeding.
Enforcing U.S. judgments and arbitral awards in Brazil
U.S. court judgments: recognition before enforcement
A U.S. court judgment cannot be enforced directly in Brazil. It must first be recognized through a homologação de sentença estrangeira proceeding before the STJ. The STJ reviews only procedural validity, not the merits: whether the issuing court had jurisdiction, whether service of process was properly made, whether the judgment is final, and whether recognition would violate Brazilian public policy (ordem pública) or national sovereignty.
The STJ does not retry the case or re-examine the evidence. Once the procedural requirements are satisfied, recognition is typically granted. After recognition, the recognized judgment is executed by the competent federal court, and the full range of Brazilian enforcement tools becomes available, including the penhora online electronic seizure of bank accounts and other assets through the SISBAJUD system.
U.S. arbitral awards: New York Convention route
A U.S. arbitral award is enforceable in Brazil under the New York Convention through the same STJ recognition process. Brazil ratified the New York Convention in 2002 and applies it without the reciprocity reservation, meaning awards from any country (not only Convention states) are eligible for recognition.
The grounds for refusing recognition of a foreign arbitral award are those of Article V of the Convention: invalidity of the arbitration agreement, improper notice, excess of jurisdiction, procedural irregularity, non-finality, non-arbitrability and public policy. Brazilian courts have applied these grounds consistently and in line with international practice. The recognition of foreign arbitral awards is generally faster and more predictable than the recognition of foreign court judgments.
What to prepare for STJ recognition
For both court judgments and arbitral awards, the STJ requires the following: a certified copy of the judgment or award; proof that the judgment or award is final and no longer subject to appeal in the originating jurisdiction; proof that service of process on the Brazilian defendant was properly made (which is why the Hague Service Convention certificate matters); a certified Portuguese translation of all documents; and a power of attorney authorizing Brazilian counsel to appear before the STJ.
For U.S. court judgments specifically, a Certificate of Finality from the issuing court and, where relevant, a certified copy of the service record from the Hague Convention proceedings are the critical supporting documents. D&Q prepares and files these applications before the STJ and manages the proceeding through to execution.
Locating and attaching Brazilian assets
Once a U.S. judgment or award is recognized, the enforcement tools available in Brazil are among the most effective in the region. The penhora online mechanism allows the executing court to issue an electronic order that simultaneously identifies and freezes funds held by the judgment debtor across all Brazilian financial institutions through the SISBAJUD system, which is operated by the Central Bank of Brazil. The freeze takes effect within minutes of the court order. Other attachable assets include real estate (searchable through state property registries), vehicles (searchable through the DETRAN system) and shares in Brazilian companies.
Six mistakes U.S. counsel make when dealing with Brazil
Submitting requests without certified Portuguese translations
This is the single most common procedural failure. Requests submitted to the STJ in English only, or with commercial (non-certified) translations, will be returned without execution. The certified translation requirement is absolute under Brazil’s Convention declarations. The cost of certified translation must be budgeted as a line item, not treated as an optional step. D&Q coordinates certified translations by sworn translators registered with the Brazilian Commercial Registry as a standard part of every request.
Drafting a Letter of Request as a broad U.S.-style discovery demand
A request for “all documents relating to” a subject matter, or “all communications between” identified parties, will be rejected under Brazil’s Article 23 declaration as an abusive collection of evidence. The STJ requires specificity. Requests must identify documents by type, date range, author or subject matter with sufficient particularity to demonstrate that the request is targeted and not a fishing expedition. U.S. counsel should work with D&Q to calibrate the scope before the request is drafted.
Attempting consular service or postal service
Brazil excluded both Article 8 (consular service) and Article 10 (postal service and direct requests) of the Hague Service Convention. Neither mechanism is available for serving Brazilian parties under the Convention. All service must go through the STJ as Central Authority. U.S. counsel who attempt consular service or send process packages directly to Brazilian addresses will not obtain valid service and will have wasted the time built into their case schedule for that step.
Underestimating the timeline
Service under the Hague Service Convention takes three to nine months in straightforward cases. Letters of Request under the Hague Evidence Convention take six to twelve months. STJ recognition of a U.S. judgment takes twelve to eighteen months in uncontested cases. These timelines must be built into case management from the moment a Brazilian nexus is identified, not discovered when a U.S. court deadline is approaching. Parallel processing of requests at different stages of the litigation is often the most effective approach.
Assuming discovery from a Brazilian company is the same as discovery from a U.S. subsidiary
A Brazilian subsidiary of a U.S. corporation is a Brazilian legal entity subject to Brazilian law, not a branch office of its U.S. parent. Documents held by the Brazilian entity are not automatically subject to a U.S. discovery order directed at the U.S. parent. The Brazilian entity’s production obligations must be assessed under Brazilian law, including Brazil’s data protection rules under the General Data Protection Law (LGPD) and bank secrecy provisions, and addressed through the appropriate Brazilian legal channel.
Waiting until after U.S. proceedings to begin Brazilian enforcement
A U.S. judgment creditor who waits until all U.S. appeal routes are exhausted before beginning the Brazilian recognition process loses 12 to 18 months that could have been used to prepare and file in Brazil. The STJ recognition proceeding can be commenced as soon as the judgment is final in the United States. During the Brazilian proceeding, the judgment debtor’s Brazilian assets remain unattached. Early action preserves the creditor’s position; delay gives the debtor time to restructure or dissipate Brazilian assets.
Admitted in New York, Brazil, Australia and New Zealand
Fabiano Deffenti is Senior Partner at D&Q Lawyers. He is licensed as an attorney-at-law in New York, admitted to practice in Brazil and Australia, and enrolled as a barrister and solicitor in New Zealand. He is co-editor of Introduction to Brazilian Law (Wolters Kluwer) and editor of LawsofBrazil.com.
Fabiano has acted for U.S. clients in cross-border matters before Brazilian courts for over two decades, including on some of the first Letters of Request submitted to Brazil under the Hague Evidence Convention. His New York admission means he understands U.S. federal civil procedure and can work directly with U.S. lead counsel without the translation layer that characterizes most cross-border correspondent relationships.
D&Q advises on Letters of Request under the Hague Evidence Convention, service of process under the Hague Service Convention, STJ recognition of U.S. judgments and arbitral awards, asset location and attachment, and the broader Brazilian legal context that affects U.S. litigation with a Brazilian connection.
Meet the Full TeamWorking on a case with a Brazilian connection?
Whether you need to serve a Brazilian defendant, obtain evidence in Brazil, or enforce a U.S. judgment, D&Q can assist from the first assessment through to execution.
What we can help with
- Drafting and submitting Letters of Request under the Hague Evidence Convention
- Certified Portuguese translation of court documents and requests
- Service of process on Brazilian defendants under the Hague Service Convention
- Obtaining the STJ’s exequatur for service requests
- STJ recognition of U.S. court judgments and arbitral awards
- Asset location and penhora online enforcement in Brazil
- Assessment of what Brazilian evidence is obtainable and through which channel
- Advising on LGPD and Brazilian data protection constraints on document production
Initial inquiries from U.S. counsel are always welcome.
This page is a summary only and does not constitute legal advice.
