What Does It Take To Depose A Witness In Another Country?
It all begins with the Hague Convention of Taking of Evidence Abroad in Civil or Commercial Matters. It was signed in 1970 and allows transmission of letters of request from one country (where they want the evidence) to another country (where the evidence is located) without having to go through diplomatic channels.
There are many countries that participate in this convention and yet make it quite challenging to take the deposition of a willing witness.
For instance, Venezuela joined the convention in 1993; but Venezuela objected to the provisions of Chapter II of The Hague Evidence Convention regarding the taking of voluntary depositions of willing witnesses by commissioners, including private attorneys and consular officers. Consequently, depositions of willing witnesses in Venezuela must be undertaken pursuant to a request to the Venezuelan Central Authority and in the context of the Venezuelan court system. Depositions of willing witnesses, regardless of nationality, by U.S. consular officers in Venezuela are not permitted. Likewise, private attorneys from the United States attempting to conduct voluntary depositions of willing witnesses in Venezuela are subject to the penalties of local Venezuelan law.
China is a member as well, since 1997. China does not permit attorneys to take depositions in China for use in foreign courts. China has indicated that taking depositions, whether voluntary or compelled, and obtaining other evidence in China for use in foreign courts may, as a general matter, only be accomplished through requests to its Central Authority under the Hague Evidence Convention. Consular depositions would require permission from the Central Authority on a case-by-case basis, and the Department of State will not authorize the involvement of consular personnel in a deposition without that permission. Participation in such activity could result in the arrest, detention or deportation of the American attorneys and other participants.
So you’d better get creative and fly your witness to Hong Kong. In Hong Kong, most voluntary depositions are taken in hotels and offices and do not involve participation by the U.S. consular officer. Telephone depositions are permitted. Voluntary depositions may be conducted in Hong Kong, regardless of the nationality of the witness, provided no compulsion is used. Oral depositions or depositions on written questions may be taken by U.S. consular officers or by private attorneys from the United States or Hong Kong at the U.S. Consulate General or at another location such as a hotel or office, either on notice or pursuant to a commission. If the services of a U.S. consular officer are required to administer an oath to the witness, interpreter and stenographer, such arrangements must be made in advance with the U.S. Consulate General directly.
Even areas that we find advanced in social and financial stature can still present challenges. Germany, member since 1979, does allow the taking of testimony — in one place only. At the Consular Officer at the U.S. Consulate General in Frankfurt.
Requests must be made a minimum of six weeks in advance, and dates and times are limited. The arranging attorney must deposit $1,283.00 at the time of requesting scheduling, to cover consular time spent scheduling and arranging the deposition. The entire deposit is forfeited if the deposition is canceled or rescheduled for any reason, unless at the request of the pertinent consular section. To reschedule a deposition, the arranging attorney must deposit an additional $1,283.00.
Each country may have their own regulations that are important to know. Here are some examples:
- In Italy, if counsel intends to utilize videotape equipment for the purpose of recording the deposition, please note that special customs clearances must be obtained from appropriate Italian customs authorities before such equipment can be taken into Italy.Without clearances, the equipment may be confiscated.
- Taking voluntary depositions in Switzerland is subject to prior authorization by the Federal Department of Justice and Police.The Swiss penal code 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.
- Prior permission from the Norwegian Central Authority is required to depose. This is obtained by the U.S. Embassy, and be prepared to submit three or four weeks prior to the desired deposition date.
- Telephone depositions and video teleconference testimony are possible in Kuwait if the deponent agrees to do so voluntarily, but this generally requires that U.S. litigants work with a Kuwaiti law firm to make the arrangements. Oral depositions or depositions on written questions may be taken by U.S. consular officers.
- Denmark declared that depositions may notbe taken by diplomatic or consular officers without prior permission from the Danish Ministry of Justice. The Ministry is extremely reluctant to grant such permission. According to the Danish Ministry of Justice, it is a prompt, easy and inexpensive process to take evidence at Danish courts; and, therefore, the Ministry is of the opinion that generally there is no reason to use a method which, pursuant to the Danish conception of law, appears less satisfactory. Voluntary witnesses deposed outside Danish courtrooms cannot be prosecuted under Danish law for perjury. Telephone depositions are not permitted.
- Brazil is not a party to theHague Convention. Brazilian authorities do not permit persons such as American attorneys to take depositions for use in a court in the United States before a U.S. consular officer, with the assistance of a Brazilian attorney or in any other manner.
These facts are not meant to deter anyone from taking a deposition overseas, but to inform. A skilled firm like Orange Legal will research what is necessary and provide you with the best coverage possible. We have a dedicated team that will do all the footwork for you and guide you every step of the way.
Feel free to contact Global@orangelegal.com for your national and international scheduling needs. They can provide you a complete picture on what it will take in order to have your deposition be a successful one.
DISCLAIMER: THE INFORMATION IS PROVIDED BY THE U.S DEPARTMENT OF STATE FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A SPECIFIC CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO THE APPROPRIATE FOREIGN AUTHORITIES OR FOREIGN COUNSEL.