Due to the costs and difficulties of taking depositions outside the U.S., one should usually search for alternate solutions first. Try to limit the scope of required foreign evidence, obtain the evidence through other means, obtain it from the target’s parent company, subsidiaries, affiliates, employers or officers who are located in the U.S. or, if possible, convince the witnesses to fly to the U.S. to be deposed.
When such tactics won’t suffice, depositions can be taken in Asia, but one should prepare carefully to ensure the process will be successful and testimony will be admissible in court. If the depositions will take place in Japan, several months will be required just to reserve a room in the embassy or consulate and obtain required visas. Even in less rigid countries, it can be daunting lining up qualified interpreters, stenographers and making other critical arrangements, while ensuring compliance with applicable U.S., foreign and possibly international laws.
Consequently, prudent counsel will prepare well in advance, seeking stipulations from opposing counsel, informing the presiding U.S. judge of the plans, obtaining necessary orders, and retaining foreign counsel to assist with foreign laws and logistics.
Location. The first step is reserving a room. Whether making reservations at an embassy or consulate, a hotel or a business center, facilities may be fully-booked months in advance. In addition to reserving early, be sure to reserve for a sufficiently long time-slot. Bear in mind that depositions with translators generally take two to three times as long as those without; facilities are likely to have limited business hours; and it may not be possible to extend the deposition past business hours or continue it to another day. When selecting dates, don’t forget to check whether any foreign holidays may interfere.
Interpreters. Most foreign depositions will require the use of an interpreter. While interpreters are widely available in Asia, most foreign interpreters lack experience translating depositions and may be unaware that their role is to provide an exact translation without embellishing or paraphrasing. They also may lack familiarity with important legal and technical terms that will be used in the deposition. Keep in mind, too, that the witness will respond to the words of the interpreter, not the attorney, so the quality of the transcript is only as good as the interpreter.
For those reasons, many attorneys prefer to fly in an interpreter from the U.S., despite the travel costs. If that’s your preference, try to select an interpreter with experience in the region. In any event, the interpreter should not be hired based on resume alone; if possible, counsel should arrange for candidates to be interviewed by someone fluent in the relevant language.
If one side will retain the official interpreter, particularly in large or complex cases, the other side will usually retain a check interpreter, to ensure that the translation provided by the main interpreter is accurate and complete. The drawback of having multiple interpreters is that disputes commonly arise concerning the translation, particularly with respect to technical terms, resulting in a dragged out process and muddled transcript. Such problems may be reduced if the attorneys will agree in advance upon protocol for handling translation disputes.
Stenographers. Stenographers are also available in Asia, but one must ensure that they have experience handling U.S. depositions. Do they know the required procedures and transcript format? Do they have reliable equipment, including back-up equipment? Use of a foreign-certified court reporter should be fine from a legal perspective, and will save on travel costs, so long as both sides stipulate to that in advance.
Oaths. For a transcript to be admissible in the U.S., the witness must swear an oath before a person authorized to administer oaths in the U.S., but U.S. notaries are only authorized to administer oaths within the U.S. (or at a U.S. embassy or consulate). This causes a potential problem for depositions outside the embassy or consulate. Unless the parties so stipulate, an oath sworn before a foreign notary will not work. However, there’s a simple solution. In most cases, the attorneys will stipulate that the court reporter may administer oaths.
I was involved in one case where the attorney taking a deposition in Taiwan overlooked the above issue and, on the day of deposition, opposing counsel refused to stipulate to allow the witness to be sworn, so the deposition was angrily aborted, the attorneys packed their bags and flew back to the States, the remiss attorney filed a motion requesting the opportunity to fly back to Taiwan to do it again, the judge agreed and the whole roadshow returned to Taiwan, doubling the substantial costs of the deposition. Moral #1: Don’t overlook critical details. Moral #2: Consider the likely end result before refusing to cooperate.
Telephone or Video-Conference. In some countries attorneys may participate in the deposition by telephone or video conference; in other countries they may not. If it is permitted, this may be a cost-saving solution for some parties, but the stenographer should always be present with the witness to ensure a clear record.
Exhibits. When a deposition will involve voluminous exhibits, it may be possible to send them to Asia by courier service or in compressed digital form and have them printed at the deposition location, but the former can be costly and the latter. . . well, good luck. Most attorneys feel more comfortable flying with their exhibits and carrying back-up copies on laptops and USB drives in case of lost luggage.
Finally, if the witnesses are located in Japan, where depositions are difficult, or China, where they’re basically impossible, and they refuse to travel to the U.S., often it may be possible to convince the witnesses to fly to nearby countries such as Taiwan or Hong Kong, where the process is more manageable. Once there, be sure to consider the points discussed in this article; otherwise, for the most part, the deposition should proceed in the same manner as it would in the U.S., subject to the same rules of evidence and standard deposition procedures.
Best of luck to you and don’t forget to allow an extra day or two to see a few sights.
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 lawyers.