Frequently Asked Questions

This is the number-one question we receive, and the answer is simple: stipulate. When attorneys need to swear in witnesses abroad, the time-honored solution is for both sides to stipulate on the record that the court reporter can swear in the witness. This is very important and should be done whenever possible. Using a U.S. certified court reporter is not enough, because notary powers held by U.S. reporters or notaries do not apply when they venture outside of U.S. territory. Stipulating on the record is an excellent solution because it works in all cases, with both U.S. certified and foreign certified reporters (such as British BIVR reporters, for example). Stipulating on the record is the easiest and most expedient way to assure the admissibility of your witness’s testimony. Please see our article on Swearing in a Witness Abroad for more details.

Certain matters may be particularly adversarial, and your opposing your counsel may refuse to stipulate. There are a few solutions we can recommend to get around this issue. The first would be to hold your deposition on the grounds of a U.S. consulate in the foreign country. There, for a rather hefty fee, a U.S. consular officer can swear in the witness on the record. Because the U.S. consulate is technically a small patch of American territory abroad, consular officers have the power to swear in witnesses and perform other notary functions in foreign countries. Not all U.S. consulates provide deposition support services, but a lot of them do. In a small handful of countries, such as Germany and Japan, you are technically required to hold your deposition at the U.S. consulate. Please keep in mind that consulates do charge fees for their services, and they are often booked up for months ahead of time, so advance planning is necessary. Email or call the American Citizen Services department of the U.S. consulate in your country of interest for more details.

If taking the deposition at a U.S. consulate is not an option and opposing counsel continues to impede your efforts, another approach is to take the matter straight to the judge in order to seek official approval for the admissibility of your desired testimony. This should be done in advance of your deposition, so that you can be confident that your plan has received the full sanction of the court. Deposing foreign witnesses is still a relatively rare occurrence (although it’s becoming more and more common), and there is not always a lot of precedent at hand. Your judge may not be familiar with how foreign depositions are typically arranged, or even if it is possible to do them. To help convince judges, our global deposition agency is often asked to provide signed affidavits explaining that depositions are commonly arranged abroad (after all, arranging depos abroad is all we do!), and recommending specific, foreign-based court reporters and legal videographers with strong credentials and experience working on U.S. depos. More often than not, such affidavits prove to be effective in convincing judges that getting testimony abroad is doable and should be done in your case.

The answer to this question is almost always YES. By far the majority of countries allow you to take testimony from willing witnesses for use in U.S. courts. We recommend reading our article on Hague Evidence Commission signatories for further information. Even in non-Hague signatory countries, it’s almost always possible to get testimony from willing witnesses. We’re happy to provide advice based on our experience in specific countries.

In most foreign countries, deposing a willing witness is as simple as noticing them, setting up a suitable conference room, and hiring a good court reporter, legal videographer, and interpreter (if needed) familiar with conducting U.S. depositions. You just have to show up and take the deposition as if you were in the U.S. (with a few small exceptions; please see the comments about swearing in witnesses abroad, above).

If a witness is uncooperative and needs to be compelled to appear, you will probably have to enlist the assistance of the appropriate authority in your country of interest. This is typically done by means of letters rogatory.

Please note that there are a small handful of countries which require special permissions and procedures for obtaining testimony from their nationals for use in foreign courts. The use of letters rogatory, addressed to the appropriate authorities in the country of interest, can be one way to ensure that you are abiding by their rules. China, for example, officially requires this approach (please click here for further details). In Japan, special visas are required for attorneys and support staff entering the country to take depositions, and U.S. depositions must take place at the American consulate there. Germany also has specific rules.

A common workaround for difficult countries is to fly the witness to a nearby country or jurisdiction that does not have restrictions, and take your deposition there. A lot of Chinese witnesses, for example, end up being deposed in Hong Kong or Taiwan, which are places they can travel to relatively easily. There can also be exceptions and ways to get around obstructive foreign rules by operating “under the radar.” In Germany, for example, despite the official restrictions in place, there are a number of U.S. depositions which discretely take place each year in private venues outside of the American consulate. We’re not condoning such workarounds, but they do exist. We can help by giving you specific advice based on the requirements of your specific deposition.

Please remember that BY FAR the majority of countries do not pose any impediments to the taking of depositions, and doing so can be quite simple. I recommend that you contact us if you’re not sure about the rules for your particular country of interest.

As far ahead as possible! Qualified court reporters, legal videographers, and interpreters are in short supply in most regions outside of the U.S. For this reason, we recommend scheduling your deposition several weeks in advance in order to guarantee the availability of local personnel. Some countries also require visas for entry, which can take upwards of a month to process. Although we are happy to provide our clients with creative solutions to make their last-minute, international depositions happen, to be on the safe side we recommend organizing your foreign deposition at least a month (or more!) in advance.

We do provide foreign notaries in some countries, but we usually recommend avoiding their use because their presence at U.S. depositions is, more often than not, unnecessary. Foreign notaries do not have any influence on the admissibility of testimony in U.S. courts (unless the judge for some reason decides otherwise). In our opinion, it’s much better for attorneys to stipulate that the court reporter can swear in the witness (see above), or to employ a U.S. consular officer instead of bringing in a foreign notary.

Yes, definitely. If properly stipulated, any qualified court reporter, regardless of the country of his or her certification, can take down an admissible record. It’s often better, in fact, to use a foreign-certified reporter if that means avoiding the expense of having to fly someone in from the U.S. It’s very common for U.S. depositions to be recorded by British-certified (BIVR) reporters due to their prevalence in Europe and Asia.

We do have several U.S. certified court reporters based in different countries around the world, so that’s also a great option, depending on your deposition location. Please remember that availability can be tight for foreign-based reporters regardless of their certification, so it’s always recommended to book them as far ahead in advance as possible.

If you hire a professional, trained U.S. legal videographer based abroad, your legal video record will be shot in NTSC (the U.S. video format) and in keeping with the standards of the U.S. Federal Rules of Evidence. So the answer to this question is yes, provided that you hire the right professional.

Definitely avoid using camera operators or video technicians in foreign countries who have never done depositions before – you’ll find that the video record taken by such individuals may be unplayable in the U.S., requiring an expensive format conversion, or worse, it may end up being considered inadmissible in court.

No, you don’t (the one exception to this rule is for Japan – please see below).

But you will definitely need a valid passport – make sure that yours is up to date, with at least six months of validity left on it. When traveling with an American passport, you can get into a lot of countries without applying for a visa beforehand. To check on the requirements for a particular country, simply Google “visa requirements for X,” where X is your country of interest, in order to find out what is needed.

Some countries require that you apply for a formal visa in advance, and it can often take several weeks to process your request. Specific documents, such as letters of invitation from the witness or client in the foreign country, may be required. If you’re not sure about what is needed or if you’re under a tight deadline to depose in a country with strict visa requirements, just let us know and we can recommend the best solution for your particular needs.

The only country we know of that requires a special “deposition visa” is Japan. You can read more about that requirement here.

Yes you can, and this is done quite often. The advantage to conducting a foreign deposition by phone is that it is the least expensive way to get testimony from abroad. In some third world countries lacking dependable Internet service and videoconferencing facilities, the good old fashioned telephone can be the best way to take a deposition without having to physically fly in.

We do recommend that the court reporter be physically present with the witness abroad, and that you have a legal videographer there with the witness as well. Because you can’t see the witness when deposing telephonically, having a good video record will come in real handy should you need to analyze specific responses down the road. A video record can also help to ascertain the identity of a witness should questions or challenges arise in trial.

Yes, you can. This approach is just now coming into vogue, thanks to much better Internet connectivity worldwide and the prevalence of Skype on computers almost anywhere you go. There are a few important caveats to keep in mind, however: Skype is not perfect and can often drop out or garble communications, especially in countries with bad Internet connectivity. Booking a professional videoconference facility instead of using Skype can assure a much better quality of connection, although there is a price to pay. If you choose to conduct your deposition by Skype, we strongly recommend having a speakerphone with the witness and a backup plan in place to proceed telephonically should Skype fail to work correctly. Also, your witness should be technologically capable, or at least have someone present who is, in order to ensure that Skype is installed and that their computer is configured correctly.

As with telephonic depositions, when taking depos via Skype we strongly recommend having the court reporter physically present with the witness abroad, as well as having a qualified legal videographer there to take a clean video and audio record of the proceedings. If your witness needs an interpreter, the interpreter should also be there with the witness.

This may come as a surprise, but most foreign courts do not rely on verbatim transcripts to the extent that we do in the United States. Nor do they employ lengthy discovery and out-of-court depositions as part of their process like we do. Because the majority of foreign jurisdictions don’t use them, or only use them sparingly, qualified court reporters can only be found in a limited number of countries possessing legal systems similar to our own.

And of course, a lot of countries don’t speak English — which means that their reporters won’t be able to take down English-language testimony.

What this all boils down to is that finding a qualified, English-language court reporter abroad is not a simple matter. In fact, in the majority of foreign countries, there aren’t any. Our agency has the largest database of foreign-based reporters available, and we always try to schedule locally-based reporters in order to save our clients money on travel costs. If that’s not possible, we can almost always fly a reporter in from a nearby country in the same region.

There are some U.S. certified, American reporters who live abroad and with whom we work regularly, but they are few and far between. For this reason, it’s important to schedule your deposition abroad as far ahead as possible in order to increase your chances of finding a good reporter and legal videographer with availability. You’ll also find that strict cancelation policies typically apply when scheduling reporters and videographers for depositions abroad, so be sure that your dates are firm before you book.