Earlier this year, the judge in a US patent infringement lawsuit issued an Order requiring three Japanese witnesses to be deposed in Taiwan, rather than California or Japan, because taking the depositions in California would have been too inconvenient for the witnesses and taking them in Japan would have involved too many legal and procedural hurdles.
The witnesses argued the depositions should be held in Japan, because they lived and worked there (their Japanese employer was a defendant and they were being deposed as agents or officers) and US courts recognize a general right for witnesses to be deposed near their residence or place of business. Opposing counsel argued for California, because the onerous requirements concerning taking depositions in Japan allegedly offset any inconvenience of forcing the witnesses to travel. The judge settled on Taiwan as a compromise, “present[ing] minimal inconvenience to the witnesses and avoid[ing] the procedural and legal impediments to conducting the depositions in Japan.”
When taking depositions of foreign witnesses for use in US litigation, the process can be greatly simplified if the witnesses will agree to be voluntarily deposed in the US. Absent such consent, FRCP Rule 28 authorizes several procedures for initiating depositions in a foreign country. However, as explained below, each of those options has limitations and the process can be challenging.
Depositions may be taken in accordance with the Hague Convention on the Taking of Evidence of Abroad, provided the witness is located in a signatory nation. China, South Korea and Singapore are all signatories to the Convention; Japan, Taiwan, Thailand, India and Malaysia are not. If the Hague Convention applies, it permits depositions to be taken (a) pursuant to letters rogatory, or (b) before a diplomatic officer or consular agent.
If the witness is willing, taking a foreign deposition before a diplomatic officer or consular agent is not a bad option. Usually the deposition will take place in the foreign embassy or consulate (in some countries the consular agent will agree to assist at an outside location for a charge) and reservations should be made well in advance, as facilities tend to be booked solid for many months. Attorneys may question the witness the same as in standard depositions, but the process varies greatly from country to country, depending on local laws.
For example, in Japan, depositions must be taken at an embassy or consulate; all persons who will attend, including attorneys, stenographers, interpreters and parties must obtain special deposition visas, a process that can take half a year or longer; and one must identify in advance all electronic equipment to be used in the deposition, by make, model and serial number. In South Korea, one must obtain consent from the Central Authority before taking depositions. In Thailand, witnesses may refuse to take an oath or answer questions and no compulsory measure is allowed. And in China, despite the nation being a signatory to the Hague Convention, depositions are strictly forbidden and violators may be deported or imprisoned.
Alternatively, if the witness is willing and local law permits, FRCP Rule 29 authorizes depositions to take place before any person, at any place, in any manner. For example, in Hong Kong, Singapore, Taiwan and Thailand, depositions may take place in hotel rooms, business centers or even by telephone conference. However, there are many critical details that should be closely observed concerning interpreters, stenographers, administration of oath and other matters (to be discussed in another post).
If the witness is not willing, one may seek to compel a deposition through letters rogatory, a tedious diplomatic process requiring assistance from the courts and consular offices in both nations and taking 6 to 12 months. Moreover, even if successful, the letters rogatory process generally will not result in a real US-style deposition, but only in the right for an attorney to obtain testimony in the manner permitted in the foreign country, which may mean submitting written questions in advance, which the foreign judge will hopefully relay to the deponent.
Sound difficult? It is.
As mentioned earlier, the best solution is to convince the foreign witnesses to fly to the US to be deposed. However, in the event that’s not possible, rest assured, plenty of attorneys travel to Asia on a regular basis to take depositions for use in US litigation. With sufficient time and planning, one can usually end up with a usable transcript. Our next post will address practical considerations to help make that happen.
If you require assistance with depositions in Asia, from logistics to witness prep to taking or defending the depositions, please feel free to send a query to our Taiwan deposition lawyer.