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Questions Depo Organizers Often Ask
We’re here to help, from getting you started, to long after the deposition has taken place.
How can we swear in a witness outside of the United States?
This is the number-one question we receive, and the answer is simple: stipulate. When attorneys need to swear in witnesses abroad, the time-honored solution is for both sides to stipulate on the record that the court reporter can swear in the witness. This is very important and should be done whenever possible. Using a U.S. certified court reporter is not enough, because notary powers held by U.S. reporters or notaries do not apply when they venture outside of U.S. territory. Stipulating on the record is an excellent solution because it works in all cases, with both U.S. certified and foreign certified reporters (such as British BIVR reporters, for example). Stipulating on the record is the easiest and most expedient way to assure the admissibility of your witness’s testimony. Please see our article on Swearing in a Witness Abroad for more details.
Certain matters may be particularly adversarial, and your opposing your counsel may refuse to stipulate. There are a few solutions we can recommend to get around this issue. The first would be to hold your deposition on the grounds of a U.S. consulate in the foreign country. There, for a rather hefty fee, a U.S. consular officer can swear in the witness on the record. Because the U.S. consulate is technically a small patch of American territory abroad, consular officers have the power to swear in witnesses and perform other notary functions in foreign countries. Not all U.S. consulates provide deposition support services, but a lot of them do. In a small handful of countries, such as Germany and Japan, you are technically required to hold your deposition at the U.S. consulate. Please keep in mind that consulates do charge fees for their services, and they are often booked up for months ahead of time, so advance planning is necessary. Email or call the American Citizen Services department of the U.S. consulate in your country of interest for more details.
If taking the deposition at a U.S. consulate is not an option and opposing counsel continues to impede your efforts, another approach is to take the matter straight to the judge in order to seek official approval for the admissibility of your desired testimony. This should be done in advance of your deposition, so that you can be confident that your plan has received the full sanction of the court. Deposing foreign witnesses is still a relatively rare occurrence (although it’s becoming more and more common), and there is not always a lot of precedent at hand. Your judge may not be familiar with how foreign depositions are typically arranged, or even if it is possible to do them. To help convince judges, our global deposition agency is often asked to provide signed affidavits explaining that depositions are commonly arranged abroad (after all, arranging depos abroad is all we do!), and recommending specific, foreign-based court reporters and legal videographers with strong credentials and experience working on U.S. depos. More often than not, such affidavits prove to be effective in convincing judges that getting testimony abroad is doable and should be done in your case.