chevron-down Created with Sketch Beta.
July 03, 2019 Articles

A Practical Guide to Depositions in Japan: Make a Plan and Be Flexible

Taking or defending a deposition in Japan is not impossible, but it can sometimes feel that way. Here are five tips to surviving the process.

By Lauren Randell

You need to take or defend the deposition of a witness in Japan. Perhaps the witness is a corporate custodian or a key executive of a party. For whatever reason—the witness’s inability to travel, discovery rules, or simple agreement of the parties—the deposition is taking place in Japan. Now what? We offer the following practical observations and suggestions to make your own experience smoother, whether you are taking or defending a deposition in Japan. We recently lived through this, in the course of presenting witnesses for four days of depositions in Japan.

  1. Try to Avoid Depositions in Japan in the First Place
    Only voluntary depositions can take place in Japan. Unlike, for example, in China, where depositions generally are prohibited, it is at least possible to take a voluntary deposition in Japan for later use in U.S. litigation. But the process is far more complicated than the process of holding a deposition in the U.S., or even in many foreign locations. Which brings us to our first suggestion—if you can, secure agreement of the parties and witness to have the deposition in Hong Kong. This is not to say that depositions cannot be taken in Japan with successful results, and there are situations, including our own, where Japan really was the only option. But the savings in effort, time, and money, and potentially additional deposition time on the record warrant at least a closer look at an alternative venue.

    The primary reason that depositions in Japan can be more complicated than elsewhere is that depositions for use in U.S. litigation can be taken only in three conference rooms in the entire country. That’s it. The depositions must occur in either the U.S. embassy in Tokyo or the U.S. consulate in Osaka. Tokyo’s lone conference room can hold 8 people. Osaka has one larger conference room—although even that will hold only 15 people—and another 8-person room. Depositions cannot be moved, even with agreement of the parties, to a hotel or law firm, or anywhere other than these three rooms. Our depositions took place in the U.S. consulate in Osaka, in the 15-person conference room. There are no telephonic depositions, and while we did not try this, videoconference depositions are reported to be available only via special request to the Japanese government and rarely granted.
  2. Plan Months Ahead of Time and Build That into Your Discovery Schedule
    In part because of the scarcity of the most basic resource, a room to hold the deposition in, our second suggestion is to plan well ahead. Depositions in Japan cannot be scheduled and taken in a month or two. The following are among the many items that need to be arranged well ahead of time, even putting aside hotels and flights:
    1. Booking the embassy’s single conference room in Tokyo or one of the two conference rooms in the Osaka consulate. The available dates, which are shown on the embassy’s website, can book up months in advance. Don’t agree with a witness on dates before verifying that those dates are available, and then immediately reserve them. Be flexible, both on location and timing. You will need to build in time to get a formal court order or commission from the originating court of your jurisdiction, and submit it to the embassy at least six weeks before the deposition date. Fairly substantial fees have to be paid at the same time.
    2. Getting a deposition visa. While U.S. passport holders usually can travel to Japan for short-term business without a visa, one of the few exceptions is for depositions. Any U.S. participant in a deposition in Japan must apply for and receive a deposition visa from the Japanese government. The visa application can take weeks to process, and it requires set dates and travel plans, as well as the court order or commission approving the Japanese deposition. Consider using a visa expediter service to ensure you get the visa in time; you won’t be traveling to Japan without it.
    3. Providing attendee and electronics information. The embassy and consulate are secure locations. That means you have to inform the embassy or consulate weeks ahead of time about all attendees at the deposition, including any interpreters, court reporters, or videographers. You also must provide identifying information about electronics that are going to be carried into the building, including laptop serial numbers and information about stenographic, videography, and interpretation equipment.
  3. Be Realistic about What You Can Accomplish
    As part of the planning process, keep in mind our third suggestion—be prepared to get less done than in a domestic deposition. A deposition day in a domestic deposition may be seven hours on the record, going as late into the evening as you need to, or perhaps starting early instead. Not so in Japan. The embassy and consulate have very strict hours in which the deposition rooms can be used—start times, end times, and mandatory lunch periods where everyone has to leave the building. The deposition room in Tokyo, for example, is open for only 6 hours and 15 minutes a day, and depositions cannot start until a U.S. consular officer begins the proceedings (although the officer does not need to stay throughout). The Osaka hours are slightly longer but still would not permit a full seven-hour deposition day unless no breaks are taken. So either plan to get what you need done in those limited hours on the record or get everyone’s agreement (and possibly court approval, depending on your jurisdiction) to book a second day.
  4. Go Back to Basics
    Our fourth suggestion is to pare down what you need—don’t expect to do your deposition with every bell and whistle. The embassy and consulate prohibit using any electronic device to connect to a network, and wireless functionality must be turned off, so don’t expect to connect to any document or testimony databases, do quick Google research, or stream the live transcript to anyone not attending. Phones are left with security personnel and can be retrieved on lunch breaks and at the end of the day. Overall, what you bring into the room is what you’ll be using. On the same note, though, the rooms themselves are tiny, so bringing many boxes of exhibits each day is not practical. You also cannot compel a witness to bring documents with him or her. And, most importantly, don’t plan on having lots of attorney backup support. The 8- or 15-person rooms need to accommodate your court reporter and videographer, as well as any neutral interpreters and the parties’ check interpreters. That’s four to five people, minimum, before counting the witness and any lawyers. In a multiparty case, space runs out quickly and needs to be negotiated among the parties.
  5. You Will Make It Work If You Have To
    The logistics and planning are, thankfully, the biggest hurdles. Our final suggestion is, once you’re actually there, to treat it like a deposition in any other government building: Give yourself extra time to get through security (but flash your passport and say “deposition” when you approach the line, and you’ll be waved to the front); make sure everyone brings identification each day; and plan to bring your own water (if allowed) or buy drinks from the ever-present vending machines. Explore the nearby areas during the mandatory lunch hour. And try to ignore the noise. These conference rooms, at least in Osaka, are in the middle of a very busy consulate, right off a crowded waiting room.

Lauren Randell is a partner at Buckley LLP in Washington, D.C.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).