Optima Juris has over 18 years of experience organizing depositions in foreign countries for U.S. attorneys and law firms. As the only American agency exclusively dedicated to providing deposition services abroad, we have compiled a list of the most frequently asked questions we receive from our clients.
So, please read on, enjoy, and should you have any further questions don’t hesitate to contact us directly!
1. How can we swear in a witness outside of the U.S.?
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 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.
2. 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 my 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 see our article on Planning an International Deposition – Guidelines for Attorneys Part 2 for more details regarding 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 one way to ensure that you are abiding by their rules. China, for example, officially requires this approach (please see U.S. Department of State Judicial Assistance 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 (http://jp.usembassy.gov). Germany also has specific rules. Please view current restrictions and workarounds for Germany.
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.
3. How soon ahead of time do we need to schedule our deposition abroad?
As far ahead as possible! Qualified court reporters, legal videographers, and interpreters are in short supply in most regions outside of the U.S. For this reason, we recommend scheduling your deposition several weeks in advance in order to guarantee the availability of local personnel. Some countries also require visas for entry, which can take upwards of a month to process. Although we are happy to provide our clients with creative solutions to make their last-minute, international depositions happen, to be on the safe side we recommend organizing your foreign deposition at least a month (or more!) in advance.
4. Do you provide notaries in country X?
We do provide foreign notaries in some countries, but we usually recommend avoiding their use because their presence at U.S. depositions is, more often than not, unnecessary. Foreign notaries do not have any influence on the admissibility of testimony in U.S. courts (unless the judge for some reason decides otherwise). In our opinion, it’s much better for attorneys to stipulate that the court reporter can swear in the witness (see above), or to employ a U.S. consular officer instead of bringing in a foreign notary.
5. Can a foreign-certified court reporter take down testimony for a U.S. case?
Yes, definitely. If properly stipulated, any qualified court reporter, regardless of the country of his or her certification, can take down an admissible record. It’s often better, in fact, to use a foreign-certified reporter if that means avoiding the expense of having to fly someone in from the U.S. It’s very common for U.S. depositions to be recorded by British-certified (BIVR) reporters due to their prevalence in Europe and Asia.
We do have several U.S. certified court reporters based in different countries around the world, so that’s also a great option, depending on your deposition location. Please remember that availability can be tight for foreign-based reporters regardless of their certification, so it’s always recommended to book them as far ahead in advance as possible.
We hope Part I of our Foreign Deposition FAQ has been helpful! Should you have any other questions, or if would like to follow up on any of the answers given in this article, please contact us at any time. We’re more than happy to help!
* Please note that these questions and answers are based on our practical experience, and do not constitute legal advice. We at Optima Juris are not attorneys, although we love working with them. We always recommend that attorneys seek buy-in for their foreign deposition plans from opposing counsel and the judge before proceeding. What is allowed ultimately depends on your local jurisdiction and your judge’s discretion.
Ian Hardy is the President and lead Global Deposition Expert at Optima Juris, the world’s first and only reporting agency that exclusively handles depositions abroad
About Optima Juris
Optima Juris is the only U.S. agency exclusively dedicated to international depositions. We have been helping law offices across the globe find the highest-quality certified court reporters, legal videographers, and interpreters for over 18 years. If you should have any questions about international depositions, please do not hesitate to contact us or fill out a free quote to see how we can make your international deposition a complete success.
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