Your Witness Is Willing to Travel to the United States

A willing witness and friendly forum are perhaps unsurprisingly the sine qua non of successful (not to mention headache-free) foreign depositions. Indeed, unless you have these essential ingredients, you probably will not be able to take the deposition successfully, at least not in any recognizable form or within any reasonable time frame or before any reasonable discovery cutoff.

If you have a willing witness but are unsure about the forum, in most cases the better practice is to simply ask the witness to travel voluntarily to the United States for the deposition. Not only will this likely be the most convenient and cost-effective for the U.S.-based lawyers in most circumstances, but it will also guarantee a friendly forum and avoid many, if not all, of the obstacles described below, that many countries place in the way of American-style discovery, especially depositions.

But even assuming the skids are so greased, last-minute border issues can certainly still upset things. Depending on the witness’s nationality, for example, U.S. visa requirements can present significant obstacles, particularly if time is of the essence. In our experience, however, assuming the witness is otherwise eligible for a U.S. visa, U.S. embassies and consulates abroad are accommodating and can expedite the visa application process, provided a court order requesting the testimony is in hand.

A Cooperative Witness and an Overseas Location

Now let us assume that the witness, while perfectly willing to testify, is for whatever reason unable to travel to the United States. It is time to discover just how (un)friendly the witness’s home forum actually is.

Begin at the beginning. Arranging the logistics for a deposition to be taken abroad may be as simple as traveling to the deposition site, just as you would in the United States, and conducting the deposition before a person authorized by Federal Rule of Civil Procedure 28, which has a section that specifically relates to depositions in foreign countries. That said, as we shall see, there are plenty of treacherous traps for the unwary.

Ensure smooth sailing for court reporters, interpreters, and other team members. If you bring your own court reporter, check Rule 28(b) of the Federal Rules of Civil Procedure and verify well in advance that the court reporter has the necessary work permit for the destination country. Customs officials have, in fact, been known to confiscate court reporters’ stenography equipment at the border. Depending on the country, you may also need special deposition visas or work permits for yourself and other participants, such as a videographer, interpreters, and, as applicable, your client representatives.

Advance permission required? An obvious, but oft-ignored, preliminary step is to ensure that your plan complies with all local laws and international conventions. Specifically, knowing your destination country’s laws and practice with respect to the taking of depositions is indispensable. For example, while Canada and the United Kingdom generally permit private litigants to arrange the deposition of a willing witness without prior permission from the authorities, many other countries require advance permission from the government, regardless of whether the witness is willing. France and Germany, for example, require strict adherence to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and in all cases demand that foreign attorneys provide advance notice to, and gain approval from, the government. Japanese law even requires foreign attorneys to obtain a “special deposition visa” at the Japanese embassy or a Japanese consulate in the United States before traveling to Japan to take a deposition.

Location, Location, Location. Some countries also tightly restrict where the deposition may be taken. In many countries, including France, Germany, and Japan, depositions, even of willing witnesses, generally may be taken only at a U.S. consulate. It may, therefore, be illegal to take voluntary depositions at a hotel or a law firm’s borrowed conference room. Moreover, because U.S. embassies and consulates often do not have extensive facilities available—and, when available, they can be used only during normal working hours—space may be very limited and reservations may be required. (Do you think I am exaggerating? Consider that, as of June 1, 2011, there were no available dates for depositions at the U.S. embassy in Japan for the rest of 2011!)

More than mere “technicalities.” Other countries, while on paper permitting depositions, in practice so severely restrict them that, for all practical purposes, American-style, free-ranging depositions in these jurisdictions are simply not going to happen. China, for example, while a party to the Hague Convention, prohibits American attorneys from taking depositions for use in foreign courts. According to U.S. officials, in more than 30 years under the Consular Convention and 13 years under the Hague Convention, China has granted permission for a deposition on only one occasion.

And beyond being merely frowned upon, participation in unauthorized depositions can result in serious sanctions, from deportation to the arrest and detention of the attorneys involved and other participants. (Just hope that you didn’t also bring your judge along to supervise the foreign deposition and rule instantly on your opponent’s groundless objections: He or she could also be arrested for performing unauthorized judicial functions.)

Enter the Unwilling Witness

While many litigators have at least a passing familiarity with the rules of the Hague Convention, as well as Societe Nationale Industrielle Aerospatiale v. U.S. District Court, 482 U.S. 522 (1987) and its progeny, neither of these basic sources of law can fully prepare even a seasoned litigator for the gauntlet of procedural, practical, and cultural obstacles that he or she may face when attempting to obtain testimony from unwilling witnesses located outside the United States. Once beyond the reach of the federal rules, one finds that, in the absence of a willing witness, it is essentially impossible to compel a foreign deposition.

The party witness. If the witness is a party or an employee of a party, or otherwise subject to the jurisdiction of the U.S. district courts, the best way to proceed will generally be to reach deep into the federal rules discovery toolbox. The basic holding of the Societe Nationale case, after all, is that resort to the Hague Convention is largely optional in federal court. That is, a party seeking discovery abroad need not first attempt to use the Hague Convention; instead, that party may elect to compel discovery under the federal rules, even if the other party or the other party’s documents or witnesses are located outside the United States. The only limiting requirement is that the evidence sought must be within the party’s “possession, custody or control.” And this provision has teeth—sanctions for failure to produce evidence located outside the United States are available under Federal Rule of Civil Procedure 37(b) and can range from contempt of court to declaring facts in the “withheld” evidence to be established.

The nonparty witness. Societe Nationale is of little help, however, if the witness is a nonparty or otherwise not subject to the court’s jurisdiction. When discovery or depositions are sought of nonparties not subject to the court’s ability to compel discovery, the options diminish. Faced with such circumstances, the litigator can either hope the witness will voluntarily sit for deposition or resort to the Hague Convention or other applicable bilateral agreement.

The Hague Convention establishes procedures to obtain evidence of witnesses abroad and is currently in force in 54 contracting countries. Generally, the party seeking evidence prepares a letter of request and submits it, or has the U.S. court submit it, to the authority designated in the convention to receive notice. This may be a central authority, such as a bureau within the Ministry of Justice (as in France), or a regional authority, such as a “Laender Authority” in Germany. Sounds good so far, but the sad truth is that the Hague Convention is largely ineffective in compelling an American-style deposition, in which you, the American lawyer, ask questions of an unwilling foreign witness. Generally, only letters of request can compel a “deposition,” and these “depositions” usually must be conducted, not by you, but by a person appointed by the foreign judicial authority, who, in most cases, knows nothing about the case and will ask only questions that have been submitted in advance in writing.

Reservations to the Hague Conven-tion’s terms, made by several countries, have also seriously eroded its usefulness. Germany and France not only made reservations restricting pretrial document discovery as conducted in common-law countries (such as the United States), but they also passed domestic legislation that, in sum and substance, prohibits the gathering of business-related information for use in foreign litigation other than via the Hague Convention. Once considered theoretical only, these so-called blocking statutes have taken on new importance since the December 2007 French Supreme Court decision upholding criminal penalties imposed on a French lawyer for violating the terms of the blocking statute. So much for informal discovery. Thus, in France, even contacting a nonparty witness other than through the convention procedures, even only to inquire whether he or she will voluntarily sit for deposition, is probably a criminal act.

The take-away here is that, once you are beyond the reach of the federal rules and left without a willing witness, obtaining an American-style deposition abroad is wishful thinking.

The Secret Weapon: A Competent Interpreter

The final, but equally critical, ingredient for a successful foreign deposition is a competent interpreter. If your witness will not testify in English, you will need a competent interpreter who is familiar with the legal terms you will be using.

Remember, the interpreter will be the one actually asking the witness questions—your questions, but in the interpreter’s words. And the court reporter will be transcribing not the words of the witness, but the words of the interpreter. Your goal and the work-product of the endeavor—to obtain a clean and clear transcript—will only be as good as the interpreter. So if you do not have a good interpreter, you will not have a good deposition.

Preparing for the foreign deposition may also require spending many hours with the witness’s foreign language documents, which may have been translated into English by a translation service. Also, time spent with an interpreter may pay valuable dividends, as you will learn what subjects may be difficult to translate or what jargon may be confusing or could lead to unclear answers. This is invaluable information because you can use it to better elicit the answers that, when translated, will give you what you need.

Last, always allow extra time for any deposition that involves an interpreter. Remember, all of your questions must be asked twice, first by you and then by the interpreter in the target language, and the reverse for the witness’s answers. A good rule of thumb is that it will take at least two to three times longer to conduct an interpreted deposition.

(De)parting Thoughts

Never before have American lawyers been tasked with taking so many foreign depositions, and never before has careful (and, frankly, creative) planning and research concerning the target country’s domestic rules been so critical. Careful preparation: Don’t leave home without it.