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.
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Chris, on the question of oaths, a couple of points:
1. If you’re taking the deposition by notice, the officer does not need to be authorized to administer an oath by US law; the officer can be authorized by the “law in the place of examination.” See FRCP 28(b)(1)(C). So an oath sworn before a foreign notary will work, if the foreign notary is authorized to administer oaths by the law of the place where the deposition is occurring.
2. It’s true that you need an oath if you’re taking a deposition abroad pursuant to a notice, but it’s worth pointing out that if you’re taking a deposition pursuant to a letter of request, an oath is not necessarily required. See FRCP 28(b)(4).
Thanks for the clarification, Ted. However, isn’t it true that (1) deposition by notice requires the foreign party’s consent, and (2) deposition by letter of request is likely to result in not a US-style deposition, but only questions being asked of the witness by the foreign judge, so in either case there’s no guaranteed right to compel a standard deposition? But at least, as you point out, the oath may not be a major hurdle in those compromised deposition procedures.
I think you’re exactly right with point #2. Depending on the law of the state involved, and particularly in civil law states, a letter of request typically does not lead to a US-style deposition.
I’m not sure I get what you’re asking on point #1. Under the FRCP you can notice any other party’s deposition without leave of court or the agreement of the other party. There’s typically a fight about the location of the depositions, with the US party seeking an order to compel the foreign party to bring its witness to the US. The court can order this to happen. But if it doesn’t, and if the foreign party isn’t cooperative, then there’s a question about whether a US-style deposition in the foreign country is permissible under that country’s laws. Does all that seem right to you?
Chris, again, thank you for providing an excellent resource for U.S. lawyers and legal teams. You are right that concerns about costs and other difficulties in taking depositions in Asia can be daunting, but they can also be eliminated or reduced significantly by selecting a company with reporters, videographers and interpreters on the ground in Asia. Your observation that depositions with interpreters generally take two to three times as long as those without interpreters is right on point and, sadly, a fact that is often overlooked when conference rooms, reporters, videographers and interpreters are reserved and result in depositions being adjourned without being completed. Educating attorneys and their teams about this will ensure that an adequate amount of time is allotted for each deposition. Finally, in situations where you are forced to take depositions outside of Japan, Korea may be a better choice over Taiwan or Hong Kong for Japanese witnesses who agree to travel, as it is a much shorter flight. Also, Guam, though a long flight, has a large Japanese and, obviously, American population, eliminating the language barriers for all sides.