Originally published on June 28, 2011. This article was updated on February 17, 2021.
Our rapidly globalizing world means that big cases (and small) are no longer restricted to the U.S. when it comes to discovery and the taking of evidence. With increasing regularity, litigation attorneys of all stripes and specialties find themselves involved in cases featuring important witnesses who reside abroad. The testimony such witnesses provide can be crucial.
Rule Number One: You Got This!
If you’re an attorney, a paralegal, or a legal secretary needing to set up a depo abroad, always remember the cardinal rule: You Got This! Global depositions are extremely common, and there are specialized agencies that can help provide everything you’ll need. The good news is that you can usually depose a witness in almost any country in the world, provided you’ve laid the right groundwork.
The main challenges are procedural and logistical. I’ll cover both here briefly, which we will expand upon in future articles.
Lay the Legal Groundwork
Although I’m not an attorney and cannot provide legal advice, it goes without saying that the way international depositions get set up always depends on the legal requirements at play in each specific instance. The simplest and most common kind of international depositions we see at my agency, Optima Juris, tend to satisfy the following conditions:
- A willing witness who resides or is located abroad
- Counsel for both sides are willing to attend (in person, remotely, or by videoconference)
- Counsel for both sides are willing to stipulate on the record that the reporter can swear in the witness (this is very important and should not be overlooked!).
- The matter at hand is exclusively in U.S. courts – ie., it is not pending in any foreign courts which may otherwise need to be involved in the process
If you can satisfy the above four requirements, then your way ahead is relatively easy: you just need to get the logistics in place.
If you don’t happen to satisfy all of the above conditions, no need to be worried – there are still a lot of solutions available! Please feel free to contact me directly, or keep an eye open for future articles where I’ll go further into the various options available in each case.
Set in Place Your Logistics: Avoid Potential Problems BEFORE They Happen
When it finally comes time to move forward and schedule a deposition abroad, all attorneys are looking for the same thing: a cost-effective solution that guarantees against any unforeseen problems.
In other words, as my clients are constantly saying when they meet with us for the first time, “I just want it to work!”. The reason for this is, of course, simple: because international depos involve a large amount of traveling, billable hours, and other costly arrangements, and cannot easily be rescheduled like depositions in the States. There is not another court reporter who can drive in from ten minutes away should you run into problems with your current reporter and need to find a replacement.
If something goes wrong when you’re deposing abroad, you’re often stuck. Therefore, a key consideration for everyone involved should be anticipating and avoiding problems before they happen.
The main points to follow in Part II:
- Go local wherever possible
- Plan ahead
- Be prepared for a cost differences abroad
Ian Hardy is the President and lead Global Deposition Expert at Optima Juris, the world’s first and only court reporting agency that exclusively handles depositions abroad.