| by Heather Duncan, Esq.
As business has become globalized, more attorneys are finding themselves faced with the challenges of witnesses and physical evidence located abroad. Obtaining testimony from a foreign non-party witness is often extremely difficult, but with careful planning it can be accomplished.
The California and Federal Rules of Civil Procedure generally allow depositions of non-party witnesses to be taken outside of the United States; however, the laws of the foreign country in which the witness resides must also be consulted.
Unfortunately, there is no uniformity or consistency to foreign deposition laws which may limit the scope of the deposition, restrict the manner in which the deposition may be taken, require the administration of an oath, or in some cases outlaw outright the taking of a deposition.
The Hague Convention provides some specific and detailed deposition procedures for signatory countries. However, in many signatory countries including France, Germany, and Japan, depositions, even of a willing witness, generally may be taken only at a U.S. consulate. It may actually be illegal to take voluntary depositions at a hotel or a law firm’s borrowed conference room. Taking a deposition in China is particularly troublesome. Although China is a party to the Hague Convention, Chinese Law prohibits American attorneys from taking a deposition for use in foreign courts.
Many countries that are not signatories to the Hague Convention have bilateral treaties with the United States that delineate the conditions and procedures for the taking of depositions.
Keeping in mind that there is no substitution for a willing witness and a friendly forum, below are a few helpful hints for taking the deposition of a non-party witness located in a foreign country.
- Research thoroughly all applicable laws, including any travel restrictions or visas required for deposition-taking.
- Give careful consideration to making arrangements for the witness to travel to the United States for the deposition.
- If the deposition is to take place in a foreign country, make an effort to obtain a written stipulation of all parties regarding procedure. Many of the difficulties in foreign procedure can be resolved through stipulation.
- Consider a stipulation to conduct the deposition by telephone or other remote electronic means.
- If an interpreter is needed, give consideration to retaining a competent interpreter from the United States and flying him or her to the foreign jurisdiction.
- Make certain that you have arranged for a competent court reporter. Consider making arrangements to bring your own court reporter with you, keeping in mind that an overseas court reporter may not be able to swear in the witness.
- Arrange for a suitable and legally permissible location for the deposition.
- Factor in potential delays that may arise.
Prior to traveling abroad, make painstaking efforts to ensure that all necessary documents, supplies and participants are set to arrive on time.