Taking Depositions in a Foreign Country
September 22, 2006California Litigation Report
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In today's global business climate, it is increasingly common for litigation pending in the United States to involve witnesses in foreign countries. Depositions outside the United States require significant advance planning, meticulous compliance with applicable immigration and treaty requirements, and an in-depth understanding of local customs and practices. In most cases, for the reasons discussed in this article, counsel should make every effort to arrange for the witness to come to the United States for deposition. Where that approach is not possible or practical, below are some tips to keep in mind when preparing to conduct depositions in a foreign country.
The first thing to do when faced with the prospect of a deposition in a foreign country is to research thoroughly the international law that will govern the scheduling and taking of the deposition. The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention) provides specific and detailed deposition procedures for signatory countries. Countries that are not signatories to the Hague Convention often have bilateral treaties with the United States describing the conditions and procedures for the taking of depositions. If the procedures are unclear or you need additional information, consider contacting the country's embassy or consular office in the United States for additional guidance. The U.S. State Department's website and the host country's website also can provide valuable information.
You also must recognize that, unless you have a willing foreign witness, it will be virtually impossible to go forward with your foreign deposition. Many countries view the pre-trial discovery process of the United States with skepticism and distrust and are loath to require their residents to testify under oath for the benefit of U.S. litigators. If you think that your case may require depositions of foreign witnesses, be sure to raise the issue early in the case and seek a stipulation from opposing counsel that specific overseas witnesses will appear voluntarily. Even with a stipulation from opposing counsel and a U.S. court order, however, an unwilling foreign witness will derail your deposition plans, and the complexities of international relations effectively neuter the power of the U.S. courts to intervene. Therefore, make sure that opposing counsel has secured the attendance and cooperation of all witnesses to be deposed.
Prior to traveling to a foreign country to take a deposition, immigration rules often require that you procure a temporary work/business visa, and in some cases even a special deposition visa. This is true even for many countries that typically do not require U.S. travelers to obtain a visa for normal business or leisure visits. Failure to follow the host country's requirements may not only lead to your being turned away at the border by immigration officials, it might also land you in a local jail if you falsely report the reason for your visit. Further, in some countries, such as Japan, a U.S. consular office may insist that you – and anyone else attending the deposition with you – show your passport and a valid deposition visa before the deposition begins. If you don't have the right credentials, you will be in serious trouble (and, of course, your deposition will not proceed).
Specialized visas, such as Japan's deposition visa, can be extraordinarily difficult and time-consuming to obtain. Before even submitting your application, you likely will have to obtain a U.S. court order specifying the witnesses to be deposed and all personnel (including court reporters, videographers and interpreters, if needed) who will attend. Applications normally must be submitted to the U.S.-based embassy or consulate, which will then forward the paperwork to foreign officials for review and approval. The approval process easily can take months (and much longer if the reviewing country is not particularly friendly with the United States), so plan ahead and keep in regular contact with consular officials about your application's status. If you expect to make multiple visits to the same country for depositions, be sure to tell the consular officials because you may be able to secure a visa valid for multiple entries. Otherwise, your passport may spend more time going back and forth between countries than you will.
You also will need to find a suitable and permissible location to conduct the deposition, which can be a major consideration in some countries. The bilateral treaty governing the taking of depositions for U.S. litigation in Japan, for example, effectively restricts the taking of depositions in Japan to the U.S. embassy in Tokyo or U.S. consulate in Osaka. The embassy has only one room for such depositions, while the consulate has two. With global litigation on the rise, these rooms often are booked many months in advance. Because these are the only three legally permissible rooms in which to conduct U.S. depositions in Japan, a booked schedule will delay your discovery efforts for months or years. You also should consider the myriad additional practical restrictions imposed by conducting depositions in official U.S. buildings overseas, such as limited hours of operation, numerous holiday closures, heightened security procedures for entry and exit, and cramped working space. Even in countries where depositions may be taken anywhere, such as Korea and the U.K., advance planning is critical to make sure that everyone attending the deposition knows where to go and that all necessary equipment, documents and supplies arrive on time.
Taking depositions overseas often also means using the service of interpreters. It is important to research individual interpreters carefully and to obtain references from other U.S. lawyers to evaluate the interpreter's skill, expertise and familiarity with the deposition process – all of which can vary greatly. Of course, the official interpreter should be neutral to the parties, but legitimate translation disputes can and do arise during translated depositions. Because the English transcription is the official record of the deposition, it is a good idea to hire and bring along a check interpreter to make sure the record is accurate. With multiple check interpreters for different parties, the record quickly can become muddied and the deposition process bogged down with disputed translations. To minimize wasted time during the deposition, establish a protocol before the deposition regarding disputed translations and try to keep extended disputes among interpreters to a minimum.
Perhaps the biggest pitfall in the planning of foreign translated depositions is the failure to allocate sufficient time to complete the deposition. A good rule of thumb is that a translated deposition will yield about 80 to 100 transcript pages per day, or about one-third to one-half of a standard deposition. The actual substantive yield can be much less, however, because everything at an interpreted deposition must be translated, including questions, answers, objections, check translator comments and disputes among counsel. Further, due to intricacies of translation and interpretation, it is not unusual for a witness to ask repeatedly for questions to be reread (or retranslated), or for translators and lawyers to get into disputes about the words or phrases used for the official record. Lastly, for all the reasons discussed above, you may not be able to easily continue a foreign deposition to another day or extend the deposition beyond strictly imposed business hours. Therefore, you should plan for (and ask for) at least three days for every "standard" day of testimony you think you will need with a foreign witness.
Research, advance planning, and patience are the key elements to conducting a successful deposition in a foreign country. And don't forget to set aside some extra time to take in the local sights before heading back to the States.
The White & Case California Litigation Report is prepared for the general information of our clients and other interested persons. It should not be acted upon in any specific situation without appropriate legal advice.
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