The Lowdown on Depositions in Europe: Part 2 of 3

In Part 1 of 3 in this article series we presented you with an overview of subject of organizing and conduction U.S. depositions in Europe. Click here to read The Lowdown on Depositions: Part 1 of 3
In this article we go into detail about the legal steps that are required to complete the international deposition process smoothly. Please read ahead.
Visas and Formalities
Almost all countries in Europe allow American visitors to enter without a special visa or any particular formalities. U.S. citizens may enter EU member countries for up to 90 days for tourist or business purposes without a visa. For country-specific details, we recommend visiting the U.S. Department of State Website at https://travel.state.gov/content/travel/en/international-travel/International-Travel-Country-Information-Pages.html, type in your country, and go to the heading for Entry, Exit and Visa Requirements. Most countries on the European continent are party to the Schengen Agreement, which allows for visa-free travel and open borders between member countries. The bottom line is that, if you’re an American citizen with a valid passport, you should be able to get into Europe without any difficulty.
Talking to Border Officials
Because border officials in Europe often do not understand what a deposition is (the concept of depositions does not really apply in most European legal systems), we have found it’s often best to tell the person stamping your passport, if they ask, that you’re entering their country for business meetings. That’s essentially the truth, and it can help explain your boxes and boxes of exhibits, while at the same time avoiding unnecessary confusion.
Lodging and Transport
Europe boasts some of the finest hotels, restaurants, and train and air transport systems in the world. Hotels and conference rooms can be easily booked online, and local workers in tourism and travel almost always speak English (English is the language spoken by Europeans from different countries when they meet one another).  Be sure to take at least one evening to enjoy a great local restaurant, and remember to set aside a little time before or after the deposition to take advantage of being in one of the world’s most pleasant regions (please see my guide to Enjoying of Global Depositions for more info on how best to do so).
Because Europe tends to be more expensive than the U.S., be sure to budget for higher costs when traveling in Europe than you may be used to while in the States. Please read my section below on costs in Europe for more details.
A Few Challenging Countries: Switzerland, Germany, and Russia
Despite the general ease of organizing depositions in Europe, there do exist a few countries which present special challenges – each one for its own reason. Please find some of the more popular of these, Switzerland, Germany, and Russia, referenced below.
Switzerland: Formal Letters of Request Required
Switzerland has long valued its independence and special status in Europe as a diplomatically-neutral country. Switzerland does not use the euro (their currency remains the Swiss Franc), nor is it a party to the Schengen Agreement, meaning that its borders are not freely open for interstate travel from other European countries (although in practice it’s very easy to get in and out).
Up until 1995, Switzerland was not a member of the Hague Evidence Convention. They have now signed on, but they have chosen to apply a very strict interpretation of the rules which require that all requests to depose Swiss nationals flow through the appropriate channels via formal letters of request, which can mean delays and additional expense. Failure to follow the rules can result in criminal charges and arrests (although I’ve never personally heard of such a thing happening). Still, it’s best to stay on the safe side.
Here is what the U.S. State Department has to say:
Evidence may be obtained in Switzerland in two ways: under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters or by the letters rogatory process. In addition, the Swiss penal code 271 provides that attorneys attempting to take a deposition or serve process in Switzerland outside of these authorized methods are subject to arrest on criminal charges.
As of January 1, 1995, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters entered into effect for Switzerland. The convention codifies the taking of evidence on notice and commission and the compulsion of evidence pursuant to a letter of request. Under the convention, a judicial authority in the United States sends a letter of request to the appropriate Swiss Central Authority in accordance with the convention. (See Martindale-Hubbell Law Directory for a model letter of request.)
Source: https://ch.usembassy.gov
Getting Around the Swiss Requirements
Now, in my lengthy experience organizing depos in Europe, I have come across the occasional deposition taking place in Switzerland which has been arranged “on the sly,” outside of the formal letter of request process. Attorneys can simply set up the deposition at a hotel conference center, a court reporter and legal videographer can be flown in, and the testimony that is taken remains perfectly acceptable in a U.S. court of law. While these exceptions do happen, I cannot recommend taking that route.
Never fear: there is a simple workaround. If you have a willing witness and do not feel like involving the Swiss Central Authority (a process which can take months and can result in a complicated hearing in which a Swiss judge asks the witness questions, and not the U.S. attorneys), simply move your witness out of Switzerland. It’s very easy for a Swiss national to drive or take the train to a nearby country where rules are less strict – it usually only takes an hour or two. Popular destinations are border towns of France, Italy, or Austria, all of which are easy to get to from Switzerland. There you can simply arrange for a conference room, a court reporter, legal videographer, etc. and conduct your deposition without special permission just as if you were in the States.
Need more help? Just contact us and we’ll be glad to guide you.
Germany: Depositions Must Happen at the U.S. Consulate
Germany is a signatory to the Hague Evidence Convention, but they have made specific reservation and declarations which makes it a more difficult country than most. First off, there are specific rules with respect to how Letters of Request are to be sent. Second, there is a requirement  that U.S. depositions in Germany take place on U.S. Consulate grounds – in practice, at the U.S. Consulate in Frankfurt.
Here is an excerpt of a State Department document on conducting depositions in Germany:
Bilateral agreements between Germany and the United States require that the German Ministry of Justice pre-approve all requests for depositions. Depositions taken without the prior approval of the German Ministry of Justice and/or without the involvement of the United States Mission to Germany are unauthorized and may lead to criminal penalties against the participants. In addition, the German Ministry of Justice requires that all depositions take place on U.S. Consulate grounds and that the oaths be administered by a U.S. Consul.
Source: http://de.usembassy.gov/
We also recommend reading this article for further details : https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/Germany.html
The bottom line? Deposing a German witness is possible, and you can even compel an unwilling witness to give testimony. However, you must follow the very specific protocols in place for Germany as discussed in the articles above. And you must schedule your deposition with the U.S. Consulate in Frankfurt. You have to make your arrangements at least six weeks in advance, and you will pay about $1,300 per day for the use of a very Spartan conference room at the consulate. Requests should be sent to the following address:
American Consulate General
Special Consular Services
Gießener Str. 30
60435 Frankfurt am Main
Germany
Tel: 069-7535-2518, 2514 or 2519
011-49-69-7535-2518, 2514 or 2519 (from the United States)
Fax: 069-7535-2252 (within Germany)
011-49-69-7535-2252 (from the United States).
E-mail: [email protected]
The consular employees at Frankfurt are wonderful people to work with and I know many of them personally. However, the security requirements they must enforce are strict, and the working environment at the consulate leaves much to be desired. You can expect to spend at least 30 minutes each morning lining up and passing through strict security, all deposition participants will need to be escorted personally to the conference room across the massive consulate grounds (Frankfurt is the largest U.S. consular presence in all of Europe), the deposition must end well before the 5PM closing hour, there are no facilities for Internet or speaker phones in the conference room, and computers and cell phones are not permitted).
Getting Around the German Requirements
For the reasons outlined above, attorneys with willing witnesses occasionally choose to organize their depositions on the sly outside of the embassy (again, we do not recommend going this route, although it does happen). A better option: if your witness is amenable, you can ask him or her to take a quick trip outside of Germany to an adjoining country. Travel between European countries is quick and easy, and in the case of Germany it’s probably less expensive to fly your witness out of the country compared to the cost, paperwork, and time requirements related to conducting the deposition in Germany.
If you have a deposition coming up in Germany and would like additional help, please don’t hesitate to contact us at any time with your questions.
Russia: Arbitrary Legal System and Tough Visa Formalities
Russia has long been recognized as a difficult country in which to do business and their legal framework can be labyrinthine and arbitrary. Despite high hopes for increased transparency and openness after the fall of the Soviet Union, much of Russia’s legal and border control framework remains mired in the past, and can present significant challenges for outside attorneys seeking to depose witnesses there.
It can be near impossible to depose unwilling witnesses in Russia, as the country commonly returns letters rogatory and Hague Convention letters of request unexecuted (please see https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/RussianFederation.html for additional details).
U.S. depositions of willing witnesses in civil matters, however, do occur in Russia with relative frequency. Such depositions are typically arranged directly with the witness in private locales and are conducted without the participation of the Russian authorities.
One major hurdle for Russia-based depositions, particularly if time is of an issue and the depositions need to be organized quickly, can be the visa process. Russia requires entry visas for U.S. citizens, and their visa process can take a minimum of one week’s time. We strongly recommend the use of a professional visa processing service that specialized in visas for the Russian Federation. Because there are no qualified court reporters or legal videographer within Russia, they will need to be flown in and obtain visas as well.
Optima Juris has reporters and videographers who can fly in from countries with special visa accords with Russia, meaning that in many cases visas are not even required for them. Please feel free to contact us for additional details.
In Part 3 of 3 we will conclude this series with our final thoughts and tips on conducting a successful international deposition.
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.