Global commerce often leads to litigation and the need to obtain evidence from foreign parties and witnesses. However, in most Asian (and other civil law) countries, discovery is conducted by judges, not attorneys, depositions and other formal discovery procedures do not exist, and attempts by foreign litigants to gather evidence contrary to local laws may be seen as violations of national sovereignty, for which criminal sanctions may be assessed.
Fortunately, lawful methods exist for U.S. litigants to depose parties and non-parties in most countries. Primarily, the Federal Rules of Civil Procedure (“FRCP”) and corresponding state laws authorize the taking of foreign depositions pursuant to (a) treaty or convention, (b) letters of request or letters rogatory, (c) deposition notice, or (d) before a consular officer; and the Hague Convention on Taking of Evidence Abroad authorizes depositions before a consular officer or pursuant to letters rogatory.
However, each of those options has flaws. Singapore and South Korea are parties to the Hague Convention, but Japan, Taiwan, Thailand, Malaysia and the Philippines are not. China is a party to the Convention, but strictly prohibits depositions. The letters rogatory process takes many months and results in not a real deposition, but only the submission of written questions for a judge to convey to the deponent. A deposition notice is useless against a non-party witness who refuses to comply. And taking depositions before a consular officer is troublesome, as reservations must be made long in advance and one cannot bring cell-phones and laptops into embassies or consular offices.
In short, plenty of depositions take place in Asia, but there are myriad legal and practical complications, so it is critical that U.S. counsel plan well in advance, informing the presiding judge of the plans, consulting with foreign counsel, and carefully observing best practices concerning the following matters, to ensure that the process will succeed and testimony will be admissible in court.
Minimize Foreign Depositions. Due to the costs and difficulties of foreign depositions, one should first search for alternatives. Try to limit the scope of required foreign evidence, obtain evidence through the target’s parent company, subsidiaries, affiliates, officers, employees or others who are located in the U.S. or, if possible, convince the foreign witnesses to fly to the U.S. to be deposed.
Choose a Suitable Country. As noted above, depositions are prohibited in China. They are permitted in Japan but must be taken at an embassy or consulate, special deposition visas are required and it can take months to obtain them. In South Korea, one must obtain consent from the Central Authority before taking depositions and in Thailand witnesses may refuse to take an oath or answer questions and no compulsory measures exist. Consequently Taiwan and Hong Kong are popular locations for depositions, even if the witnesses hail from another country.
For example, in 2012, a U.S. court ordered three Japanese witnesses in a patent suit to be deposed in Taiwan. The witnesses argued the depositions should take place in Japan, because they lived and worked there. Opposing counsel argued for California, claiming Japan’s onerous deposition requirements 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.” See Gerber Scientific International v. Roland DGA Corp., et al., No. 3:06CV2024 (D. Conn. 2012).
In another case, the General Counsel for China’s ZTE Corp. was ordered to be deposed in New York, where ZTE had been sued for breach of contract, but the GC begged the court to show mercy and allow the deposition in Hong Kong, instead, because the FBI had launched an investigation into ZTE for purportedly selling computer equipment to Iran, in violation of U.S. law, and the GC feared being arrested if he traveled to the U.S. While that judge has taken a hard stance against ZTE, egged on by ZTE’s aggressive adversary, the proposal for a Hong Kong deposition seems perfectly reasonable and many courts would likely agree. See Vringo, Inc. v. ZTE Corp., No. 14CV4988 (S.D.N.Y. 2014).
Book a Room Early. In Taiwan, Hong Kong and Singapore, depositions take place mainly at hotels and business centers; in Japan at the U.S. Embassy in Tokyo or U.S. Consulate in Osaka. In any event, one should reserve early, as facilities may be fully-booked months in advance. When making reservations, check for local holidays that might interfere and reserve a sufficiently long time-slot, bearing in mind that depositions with translators generally take two to three times longer than those without, facilities may have limited business hours, and it may not be possible to extend the deposition past business hours or continue it to another day.
Hire a Skilled Interpreter. Most foreign depositions will require an interpreter. While interpreters are widely available in Asia, most Asian interpreters lack experience translating depositions and may be unaware that their role is to provide an exact translation, not paraphrasing. They may also lack familiarity with important legal and technical terms and, because the witness will respond to the words of the interpreter, not the attorney, the quality of the transcript is only as good as the interpreter. Consequently, some attorneys prefer to fly an interpreter in from the U.S., despite the additional costs. However, by consulting with local counsel, it should be possible to locate a good, experienced interpreter already present in Asia.
Consider a Check-Interpreter. If one side will retain the official interpreter, particularly in large or complex cases, the other side often retains a check interpreter, to ensure that the official translation is accurate and complete. The drawback of using multiple interpreters is that disputes commonly arise concerning the translation, particularly with respect to technical terms, prolonging the process and muddling the transcript. Such problems may be reduced if the attorneys will agree in advance upon protocol for handling translation disputes.
Hire a Skilled Stenographer. Stenographers are also available in Asia, but one must ensure that they have experience handling U.S. depositions, have reliable equipment, including back-up equipment, and understand the required procedures and transcript format. Use of a foreign stenographer should be fine from a legal perspective, and will save on travel costs, so long as both sides stipulate to that in advance.
Don’t Overlook Oaths. For a transcript to be admissible in U.S. litigation, the witness must be sworn in by someone authorized to administer oaths in the U.S., but foreign notaries lack that authority and U.S. notaries may administer oaths only within the U.S. (or at a U.S. embassy or consulate). The conundrum is easily surmounted if counsel stipulate before leaving the U.S. that the stenographer may swear in the witness. I once attended a deposition where counsel forgot to do so. In Taiwan, at the start of the deposition, deposing counsel asked the stenographer swear in the witness, opposing counsel objected and the event was angrily aborted, so the attorneys (and their interpreters) could fly back to the U.S., argue before a judge and return to Taiwan to give it a second shot. Both attorneys were wrong, but all the wasted time and costs could have been avoided if a stipulation had been reached in the beginning.
Consider Telephone or Video-Conference. Some countries permit depositions to be conducted by telephone or video conference; others do not. If permitted, this option should save substantial costs. For example, as a U.S. attorney resident in Taiwan, I was retained to defend four Taiwanese witnesses being deposed in a U.S. class-action antitrust suit. The depositions took place in Taiwan and the only persons present were the witnesses, stenographer, interpreter, videographer and myself, as all of the other attorneys – more than a dozen firms – were back in the States, participating by speaker phone. In the event that you select this option, always test the equipment beforehand to make sure it works and arrange for the stenographer and interpreter to be present with the witness to ensure a clear record.
Don’t Forget your Exhibits. If a deposition will involve voluminous exhibits, it may be possible to send the exhibits to Asia by courier service or in digital form and have them printed in Asia, but the former can be costly and the latter may not be reliable, unless someone trustworthy will review the printed exhibits prior to the deposition to ensure that all is proper. Alternatively, most attorneys prefer to fly with their exhibits and carry back-ups on laptops and USB drives in case of lost luggage.
Prepare your Witnesses. Finally, if you will represent Asian deponents, it is especially critical to prepare the witnesses well beforehand. Attorneys routinely meet with deposition witnesses in advance to review relevant facts, allegations, documents, questions, procedures and best practices. Such preparation is especially critical for witnesses who may have limited English skills, limited experience with litigation, a different cultural background, and may be terrified by the process; even more so if the deposition will be videotaped, as appearances are critical and body language, mannerisms and nervousness may come across as signs that a witness is not credible or trustworthy.
It may all seem a little overwhelming, but rest assured, plenty of depositions are taken successfully in Asia and with proper preparation you should be able to pull it off without a hitch. If you have any questions or require assistance, please feel free to drop me a line at chrisneumeyer (at) asialaw.biz.