Depending on the country in which the foreign witness is located, setting up a deposition abroad in a civil or commercial matter may be easier than you think. This article provides some general guidelines for U.S. attorneys who wish to organize the depositions of foreign-based witnesses.
Step 1: Review the Relevant Code of Civil Procedure for Your State
Most U.S. states authorize the taking of depositions in foreign countries. Relevant state statutes are for the most part modeled after Fed. R. Civ. P. 28(b).1 In California, for example, section 2027.010 of the Code of Civil Procedure permits California litigants to take oral depositions in foreign countries.2 Similar codes apply in other states.
In general, depositions can be taken abroad by following one of these procedures: 3
- In countries without speciﬁc prohibitions and where witnesses are voluntary, depositions can be organized by noticing the witness or his or her counsel, with counsel for both sides stipulating on the record that the local court reporter can swear in the witness;
- On notice before a U.S. consular officer or foreign official (with the consular officer swearing in the witness);
- Pursuant to a Hague Evidence Convention letter of request, either before a U.S. consular officer or before a foreign judge or court-‐appointed commissioner (depending on the country);
- Pursuant to a letter rogatory, either before a U.S. consular officer or before a foreign judge or court-‐ appointed commissioner (depending on the country)
Be sure to research the relevant code of civil procedure for your state to ensure that you are in compliance. In our experience, nearly all states permit oral depositions abroad.
Step 2: Determine Whether the Witness Is Willing or Unwilling
One key factor in determining the appropriate procedure to follow in setting up your deposition abroad hinges on whether or not your witness is willing to be deposed voluntarily. In our agency’s experience, nine out of ten depositions abroad involve willing witnesses, or witnesses who have voluntarily agreed to appear upon recommendation of their counsel. Willing witnesses can be deposed in many foreign countries without any special permission from the foreign country’s government or legal system. Depositions of this kind are the easiest, fastest, and least expensive to organize.
The Simplest Approach: Organize by Stipulation of Counsel
If your witness is willing to appear voluntarily at his or her deposition, the way forward is relatively simple.
In the majority of foreign countries you can simply conduct the deposition by 1) noticing the deponent in advance, and then 2) allowing the court reporter to administer the oath by stipulation of counsel for all parties. In such cases, opposing counsel will have to be in agreement in order to stipulate, and it’s a good idea to ensure that the judge is on board with your international deposition plans as well.
Depositions of foreign deponents may be obtained by means of stipulation and without foreign government involvement, provided that the following two conditions are met: 4
1) The witness is willing to testify voluntarily
2) The law of the foreign country does not preclude such voluntary testimony or evidence
In such cases, you can simply notice the witness and/or relevant counsel, organize a private space for the deposition such as a conference room or law office in the foreign country, reserve a local court reporter, videographer, and/or interpreter as needed, and then show up to take your deposition as you would in the United States. Deposition notices for foreign deponents are authorized under Fed. R. Civ. P. 28(b)(1).
This simple approach, according to our agency’s practical experience, has been successfully applied in such varied countries as England, Canada, Hong Kong, Singapore, Mexico, and much of Europe. It also works in many parts of Africa, Asia-Pacific, the Middle East, and Latin America.
If Stipulation Is Not Possible, Organize Your Deposition Before a U.S. Consular Officer
Should your witness be willing but opposing counsel refuses to stipulate, you can still administer the oath in an admissible way by taking the deposition before a U.S. consular officer on American embassy or consular grounds.5 The consular officer, who is the sole bearer of U.S. notary powers outside of U.S. territory, can swear in your witness, court reporter, interpreter, etc. Please note that there is often a hefty fee for this service (in the vicinity of $1,000 to $2,000), and many embassies and consulates require that reservations be made several weeks or months in advance in order to book their limited conference facilities. In some countries, such as France, it’s possible to have the consular officer travel off of embassy grounds to administer the oath, which makes things easier because you won’t have to contend with the severe timing and security restrictions in force at U.S. embassies and consulates.
In Japan, where depositions are required to take place at the U.S. consulate according to 17(1)(e)(ii) of the U.S.- Japan Consular Convention, conference room space is limited and the waiting period for reservations can sometimes reach up to a year. To see what’s possible in the country of your choice, we advise that you contact that country’s U.S. embassy or consulate directly.6
In countries where the right to take depositions is not secured by treaty, U.S. consular officers may take depositions only if the laws and authorities of the foreign country do not prohibit them from doing so. For example, consular officers may not participate in depositions in Russia, even if the witness is willing to be deposed.7
By way of practical advice, if you can avoid holding your deposition on U.S. consular grounds, it is highly preferable to do so. Security restrictions mean that cell phones and laptop computers must often be left outside of the consulate, and strict consular hours mean that there is little possibility of working past four or ﬁve p.m. It is often necessary to submit to lengthy security procedures and checks while entering consular grounds, which can take upwards of half an hour each time, and deposition participants must then be escorted to the appropriate conference room by consular personnel. For meal and coffee breaks, you may have to rely on the consulate’s cafeteria in order to avoid the security hassle of leaving and re-‐entering the consular grounds for lunch. Finally, as mentioned above, holding depositions at U.S. consulates is costly and requires reservations to be made well in advance.
So if the law of the foreign country permits, and if you can avoid consular involvement by means of stipulation, it’s always better to arrange your deposition on your own, without involving the consulate.
Should your desired witness be unwilling and must be compelled to appear, there are mechanisms in place to facilitate this under international law, which we will discuss in Planning an International Deposition – Guidelines for Attorneys Part 2.
Find out more useful tips and advice about international depositions at our info center: http://www.optimajuris.com/info-center/. Optima Juris is always here to help with any questions you may have about deposing witnesses in a foreign country. Please contact us if we can be of any assistance.
1 Victoria E. Brieant, “Depositions at Home and Abroad (with Forms),” Practical Litigator, September 2003
2 Ako S. Williams, “Taking Depositions Abroad,” Los Angeles Lawyer, December 2005
3 Brieant, Ibid.
4 Pursuant to Fed. R. Civ. P. 29. Brieant, Ibid.
5 Federal authority for consular officers to take depositions is established in: 22 U.S.C. 4215 and 22 U.S.C. 4221; Rules 28-‐31, Federal Rules of Civil Procedure; Rules 15 and 17, Federal Rules of Criminal Procedure.
6 Please refer to the U.S. Embassy Website list at: http://www.usembassy.gov/
7 U.S. Department of State Foreign Affairs Manual Volume 7, Consular Affairs, 7 GAM 912.9. With respect to Russia, it should be noted that U.S. depositions of willing witnesses have been known to take place there, but without U.S. consular involvement.