Deposing a witness in a foreign country: if you find yourself among the growing ranks of lawyers who need to conduct extraterritorial depositions, here's how to proceed.
Supreme Court Rule 205(b), (c)
Lawyers may expect liberality and flexibility from Illinois courts when presenting a request to take a witness's deposition in a foreign country, the authors say. They recommend that litigators take particular note of Illinois SCR 205(b), which specifies the persons before whom depositions are to be taken in foreign countries.
In addition to an embassy secretary, consul general, consul, vice-consul, or consular agent of the United States, or any officer authorized to administer oaths under the laws of this state, or the United States, or of the place where the examination is held, the rule permits the Illinois court to appoint a person to carry out this function. Though Illinois does not require a commission, dedimus potestatem, or letter rogatory to take a foreign deposition, if the jurisdiction in which the deponent is located requires one of those documents, SCR 205(c) permits the clerk of the court to issue one without notice.
The law of the jurisdiction where the deponent is located is another matter, the authors warn. "Restrictions by other countries placed on deposition testimony range from minor inconveniences to a complete bar, requiring parties to anticipate and accommodate foreign requirements."
It may surprise U.S. litigators, for example, to learn that most other countries do not even permit depositions in their domestic litigation, the authors say, though many have, through treaty, agreed to permit depositions for litigation pending in other countries. Even where a country has done so, however, the authors caution that "[d]epending on the country, additional documentation may be required, and there may be significant limitations on the mode of taking testimony, where and when the deposition may occur, whether any request to the deponent to bring documents will be honored, and even whether the taking of testimony is permitted at all."
The Hague Convention
The key document with which litigators wishing to take a foreign deposition must familiarize themselves is The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, available online at http://www. hcch.net/index_en.php?act=conventions. text&cid=82. Additional information, including a list of the countries to which the convention is applicable and the addresses of their central authorities who are responsible for all requests for evidence, is available on the State Department's Web site at http://travel.state.gov/ law/info/judicial/judicial_689.html.
The authors note that all requests for evidence must be initiated by the originating court in Illinois, who corresponds with the central authority of the country in which the witness is located. Lawyers here should anticipate that they will need to prepare the letter of request and related materials for the Illinois court to transmit. When doing so, the authors caution, it's essential for lawyers to follow all formatting requirements specified by the convention as well as to continue to maintain good communication with the Illinois court so that it can monitor and follow up to ensure that the materials are received and acted upon by the proper authorities.
Chorvat and Hutchison also note that, though the convention attempts to standardize procedures in the signatory countries, a number of those countries have issued declarations or reservations with special requirements departing from those of the convention. Some, for example, require the letter of request to be in their local language and will not accept documents in French or English as the convention envisions.
Other countries require a local official, not counsel, to question the witness. Most also exempt themselves from the discovery of documents.
What if a witness is in a country that has not signed The Hague Convention? In that case, the authors say, the lawyer must find out whether that country and the U.S. have entered into a bilateral agreement respecting evidence. Japan, for example, is not a signatory to the convention but has entered into a bilateral agreement with the U.S. Lawyers can find that and other such agreements by searching the State Department's website.
The authors conclude by emphasizing taking the time and care to prepare a proper letter of request, which, they note, will serve as the starting point for obtaining the evidence the lawyer is after. Because of the time-consuming nature of the process, the authors advocate beginning well before any significant deadlines are set in the case.
They also suggest retaining local counsel in the country where the witness is located. Patience and a positive relationship with the Illinois court, too, they emphasize, are paramount when a lawyer wishes to obtain evidence from another country.
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|Publication:||Illinois Bar Journal|
|Date:||Sep 1, 2009|
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