Ian Hardy - September 22, 2011

Attorneys: get ready! In our globalized world, more and more cases involve testimony from witnesses residing abroad. When this happens, you may find yourself getting geared up to take that flight into a foreign country, with the aim of nailing that crucial testimony for your matter pending in a U.S. jurisdiction.  What are the steps involved in making your foreign deposition a success, and what do you need to know? Well, put on your traveling suit and break out those frequent flyer cards. Here are a few important tips to speed you on your way.
Step 1: Line up your Resources
As Sun Tzu said, “Every battle is won or lost before it is ever fought.” That holds especially true for depositions abroad. The first and most important step is to make sure that you have the resources in place to conduct your deposition, and that you’re aware of the local laws and procedures that apply in certain countries for taking foreign testimony. Please refer to my earlier articles, Setting Up A Deposition Abroad? Top Things Attorneys Must Know, Parts I and Part II. The good news is that there are experts out there who can help you along with the process.
Step 2: Seek buy-in from Opposing Counsel and the Judge
The key issue when conducting depositions outside the U.S. is to ensure in advance that the resulting record will be usable in court when you get home. Because the requirements for your record will vary from jurisdiction to jurisdiction, and from judge to judge, we strongly recommend seeking consensus with opposing counsel and the judge before scheduling your deposition. Line up your resources, get a plan in place, then present your approach to the court. This will ensure that everyone is on-board and that opposing counsel will make the necessary stipulations so that resulting testimony will be iron-clad. Taking the necessary time in the beginning will give you the peace of mind that the testimony you get won’t run into obstacles when you get back home. In cases where opposing counsel decides to be unduly adversarial, try to point out the benefits and cost savings to their side by finding a clear way forward for the deposition now, in order to avoid multiple trips to the foreign country and lost time due to disagreements that may crop up after the deposition happens.
Step 3: Conduct your deposition as you would at home
Depending on the agreement you obtain from the judge and opposing counsel, depositions abroad are typically conducted just as if they were taking place in the U.S. Your Federal and State Rules of Evidence will apply as usual. Objections should be entered on the record, and an experienced court reporter should be present to take down all testimony. Legal video is also popular, especially for depositions where the witness might be using an interpreter: getting their foreign language responses on video along with the interpreter’s translations will allow you to analyze the raw data after the fact in case there is any disagreement. Remember to plan for a sufficient number of days to get all the testimony you require, as depositions abroad can take longer than in the U.S. due to language differences and slower customary attitudes towards work. If you are using an interpreter, you can estimate that your deposition will take roughly twice as long as a depo in which the witness speaks fluent English. Remember that, when you’ve traveled a long distance to take a deposition abroad, time differences and jet lag can wreak havoc on your concentration and performance. Try to give yourself a day or two in the deposition country before the deposition begins to get adjusted. You can be sure that your witness won’t be jet-lagged while you will be, so you should do everything you can to stay sharp.
Step 4: Educate Yourself about the Exceptions
Certain countries, which are not signatories to the Hague Evidence Convention, may require special procedures which can pose restrictions on where the deposition can take place, as well as occasionally requiring the involvement of foreign courts. In Japan, for example, depositions must be taken at the U.S. embassy or consulate, and special deposition visas are required for attending attorneys, court reporters, and other non-Japanese personnel. These exceptions vary from country to country, and they are always changing. The best approach is to ask an experienced global deposition expert what needs to be done for any given country to avoid big regrets after the fact.
Ian Hardy is the President and lead Global Deposition Expert at Optima Juris, the world’s first and only reporting agency that exclusively handles depositions abroad