Is it legal to hold a deposition in country X?
The answer to this question is almost always YES. By far the majority of countries allow you to take testimony from willing witnesses for use in U.S. courts. We recommend reading our article on Hague Evidence Commission signatories for further information. Even in non-Hague signatory countries, it’s almost always possible to get testimony from willing witnesses. We’re happy to provide advice based on our experience in specific countries.
In most foreign countries, deposing a willing witness is as simple as noticing them, setting up a suitable conference room, and hiring a good court reporter, legal videographer, and interpreter (if needed) familiar with conducting U.S. depositions. You just have to show up and take the deposition as if you were in the U.S. (with a few small exceptions; please see the comments about swearing in witnesses abroad, above).
If a witness is uncooperative and needs to be compelled to appear, you will probably have to enlist the assistance of the appropriate authority in your country of interest. This is typically done by means of letters rogatory.
Please note that there are a small handful of countries which require special permissions and procedures for obtaining testimony from their nationals for use in foreign courts. The use of letters rogatory, addressed to the appropriate authorities in the country of interest, can be one way to ensure that you are abiding by their rules. China, for example, officially requires this approach (please click here for further details). In Japan, special visas are required for attorneys and support staff entering the country to take depositions, and U.S. depositions must take place at the American consulate there. Germany also has specific rules.
A common workaround for difficult countries is to fly the witness to a nearby country or jurisdiction that does not have restrictions, and take your deposition there. A lot of Chinese witnesses, for example, end up being deposed in Hong Kong or Taiwan, which are places they can travel to relatively easily. There can also be exceptions and ways to get around obstructive foreign rules by operating “under the radar.” In Germany, for example, despite the official restrictions in place, there are a number of U.S. depositions which discretely take place each year in private venues outside of the American consulate. We’re not condoning such workarounds, but they do exist. We can help by giving you specific advice based on the requirements of your specific deposition.
Please remember that BY FAR the majority of countries do not pose any impediments to the taking of depositions, and doing so can be quite simple. I recommend that you contact us if you’re not sure about the rules for your particular country of interest.