Ian Hardy - September 23, 2011

In our twelve years of experience organizing depositions abroad, the most common question my agency receives from clients is as follows: We have a foreign witness we need to depose outside the U.S. What should we do to ensure that the oath is administered correctly?
Luckily, the answer to that question is probably less complicated than you thought. This article gives a brief overview of how to get the “swearing done right.”

U.S. Notary Powers

When conducting normal, day-to-day depositions inside the United States, most attorneys rely on their court reporter to swear in the witness. This works fine domestically, because nearly all court reporters are certified notaries.
When you’re taking your deposition in a foreign country, however, things become different. Your court reporter, regardless of certification, will need both sides to stipulate on the record that he or she can swear in the witness. Why is this necessary? Well, U.S. notary powers are only effective within United States territory. If you take a notary outside of the U.S., his or her ability to legally notarize disappears. The only exception to this rule concerns U.S. consular officers and people working on U.S. consulate or embassy grounds abroad, which are technically considered to be extensions of American soil.
Some attorneys choose to take advantage of this and either conduct their depositions on consular grounds, or bring in a consular officer to swear in their witness if the deposition is off consular grounds. This can be a useful approach, especially if opposing counsel is adversarial and refuses to make things easy by stipulating. Some countries, like France, have friendly U.S. consular staffs which are happy to arrange for conference rooms (for a fee) on consulate grounds. Within big cities like Paris, consular officials can even visit your deposition off-site to swear in your witness. Please be aware, they charge a hefty price for this service, and you may need to schedule it far in advance. And in a lot of countries, where consular resources are far more limited, you may not even be able to get through to someone, let alone find a consular officer who knows what a deposition is. This varies from country to country. But don’t fret – there is a much simpler, faster, and cheaper solution at hand!

Just Stipulate It! 90% of U.S. Depositions Abroad use Stipulations

If opposing counsel is in agreement, the simplest work-around for American depositions abroad is for both sides to stipulate on the record that the court reporter can swear in the witness. Once this is done, the reporter (who can be either U.S. certified, or foreign certified – British reporters with BIVR certifications are very common abroad) can simply administer the oath and swear in the witness, exactly as would be done were you taking your deposition in the United States. The key here is to ensure in advance that both sides are willing to stipulate, and that the judge is on board with that arrangement. This is what happens in over 90% of U.S. depositions conducted abroad. By stipulating, you gain the freedom to conduct your deposition anywhere you want (hotel conference rooms and business centers are the most popular spots in foreign countries) without needing to deal with the expense and hassle of involving the U.S. consulate, or foreign “notaries.”

Beware of Foreign Notaries

Some U.S. depositions use foreign notaries to swear in the witness, but this procedure is complicated by the fact that a majority of foreign jurisdictions do not have the equivalent of U.S. notary publics. Sometimes, foreign attorneys can be used as notaries, but this depends on the country and can be expensive. I always advise my clients to be wary of relying on foreign notaries as a solution, and to try to work out an agreement with opposing counsel to stipulate if at all possible. In the end, the admissibility of testimony is decided upon by the judge and can be challenged by opposing counsel, so working out a clear arrangement before the deposition takes place will save you and your client much needless expense and stress.
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
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