Ian Hardy - October 2, 2014

 
In Part 1 of our article “Planning an International Deposition – Guidelines for Attorneys” we discussed how to handle setting up a deposition abroad with a willing witness. But what if you have an unwilling witness that must be compelled to appear?   There are mechanisms in place to facilitate this under international law, which we will discuss. The procedures involved, however, can be complicated and usually take a great deal of time before a response is received from the presiding foreign government agency or court; in many cases, the wait time can span six months to a year should compulsion be required.

Unwilling Foreign Witness – What to Do?

If you must compel your foreign-based witness to appear, there are two tools at your disposal: letters of request under the Hague Evidence Convention, and letters rogatory. Please bear in mind that compelling unwilling witnesses to testify in foreign countries, while not uncommon, can be a significant challenge, and it almost always entails significant added time and cost.

Letters of Request: The Hague Evidence Convention

The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970, commonly referred to as the Hague Evidence Convention, codifies the taking of depositions between citizens of different countries in civil and commercial matters.¹ Intended to replace the older, more cumbersome diplomatic avenue of letters rogatory, the Hague Evidence Convention establishes procedures for the taking of evidence between its member countries, which currently number 56 ratifying members.² Each participating country is allowed to make its own reservations and declarations concerning the applicability of each article of the convention, so in practical terms it is important to research the foreign country’s specific membership to determine which rules apply.³
If the foreign country in which your witness is located happens to be a member of the Hague Evidence Convention, compulsion of unwilling witnesses is greatly facilitated. The Hague Evidence Convention “codifies the taking of depositions on notice and commission before consuls and court-appointed commissioners and streamlines procedures for compulsion of evidence when the witness refuses to appear. If the foreign nation is a signatory, counsel has the option of using one of the methods provided by the Hague Evidence Convention or other permissible methods.” ⁴
Under the Hague Evidence Convention, you can obtain a letter of request from the U.S. court in which your action is pending. The letter requests that a judge or designated official in the foreign jurisdiction conduct the questioning of the witness. This kind of questioning can be very different from a typical U.S. deposition – U.S. attorneys must adhere to the timing and schedule of the foreign court, and often they must submit their questions in advance to be asked by the foreign judge, should the judge be amenable to such arrangements. In short, attorneys have less control over the process, and the foreign judge will be free to ask questions on matters he or she deems to be most relevant. Remember, lengthy discovery and pre-­trial depositions are rare in most countries, including the civil law countries of Western Europe, where judges direct very focused pre-trial discoveries. Many foreign courts are amenable to the presence of U.S. court reporters and/or legal videographers, although such arrangements need to be made in advance.
Another permissible approach under the Hague Evidence Convention involves arranging for the deposition to be held at a local U.S. embassy or consulate administered by a consular officer or by a court-appointed commissioner. Please refer to our discussion of this process above.
Please note that it can take several months to a year for a Hague Evidence Convention letter of request to be processed by the foreign government.

Letters Rogatory: Hague Evidence Convention Non-Member Countries

If your witness is based in a country which is not a member of the Hague Evidence Convention and must be compelled to appear, another option is to issue a letter rogatory from the court in which your action is pending, addressed to the appropriate authority in the foreign country. The rules for letters rogatory can be found in the Code of Civil Procedure for your state.
Letters rogatory may not be as effective as letters of request under the Hague Evidence Convention because enforcement depends on the foreign jurisdiction’s willingness to exercise comity.⁵ Letters rogatory, like letters of request, typically take several months to a year to execute. Also, it is important to bear in mind that, as with letters of request, in most civil law countries it is often necessary to allow a foreign judge to question the witness, with U.S. attorneys submitting their questions in writing beforehand. The exact procedure required depends on the applicable rules of each foreign jurisdiction.
Check out more useful tips and advice about international depositions at our info center: https://www.optimajuris.com/info-center/.  Optima Juris is always here to help with any questions you may have about deposing witnesses in a foreign country.  Please contact us if we can be of any assistance.

1 Victoria E. Brieant, “Depositions at Home and Abroad (with Forms),” Practical Litigator, September 2003
2 Please refer to our blog article on Hague Evidence Convention Member Countries at: https://www.optimajuris.com/international-deposition-blog/hague-evidence-convention-signatory-countries-226/
3 This information is available online at: http://www.hcch.net/index_en.php?act=states.listing
4 Ako S. Williams, “Taking Depositions Abroad,” Los Angeles Lawyer, December 2005
5 Williams, Ibid.