Avoiding the Perils of Foreign Discovery For most seasoned litigators, conducting discovery is second nature. Whether it is propounding Requests for Admissions, drafting Interrogatories, or taking Depositions, experienced litigators know the tricks of the trade. But what about conducting foreign discovery? How does one go about obtaining critical evidence from foreign sources – such as testimony from witnesses and documents – in order to make that evidence admissible at trial? To be successful, litigators working in this realm must be aware of certain procedural rules and regulations that govern their efforts. Before commencing a deposition in a foreign country, the following issues, among others, should be addressed: Are there any relevant treaties in place? Can the witness’s cooperation be relied on, or will compulsory process be necessary? Where and before whom should the deposition be taken? What foreign privileges exist? Knowing the answers to these questions will make the deposition process go much more smoothly. Rule 28(b) of the Federal Rules of Civil Procedure provides four methods for taking a deposition outside the United States: (1) Pursuant to any applicable treaty or convention; (2) Pursuant to a letter of request, or a letter rogatory, issued by a domestic court; (3) On notice before a person authorized to administer oaths in the place where the examination is to be held either by local law or U.S. law; or (4) Before a person commissioned by the court to administer oaths and take testimony. See Rule 28(b), Fed.R.Civ.P.; 22 C.F.R. §92.51. Of the four, the notice procedure is the most desirable, as it allows for scheduling the depositing at the convenience of the parties without the intervention of a Court, the Department of State, or a central authority under the Hague Convention. Arrangements for depositions before consular officers must be made long before the date of the deposition through an application to the consular section of the embassy, or the consulate where the deposition is to be taken. Before completing the application, consult a manual called Obtaining Evidence Abroad, which is issued by the United States Department of State, and review pages 43-57 to learn what information the application should include. Also note that several countries to not allow consular officers to administer oaths or preside over depositions. Most notably, Switzerland forbids taking depositions at the U.S. embassy or consulate. Before taking a foreign deposition, contact the Department of State to learn the particular restrictions of the country where the witness is located. Letters rogatory and letters of request are the only methods by which testimony of a nonparty can be compelled. These terms are used interchangeably; however, a letter of request is used to obtain evidence in countries that are parties to the Hague Convention, whereas a letter rogatory is used with regard to countries that are not parties to the Hague Convention. F.R.C.P Rule 28(b) addresses the rules governing the use of letters rogatory. By contrast, Article 3 of the Hague Convention governs the use of letters of request.
Some final issues should be addressed before commencing the actual deposition. If an interpreter is needed, it would be wise to agree with opposing counsel on an interpreter certified by the Department of State. If arranging for a foreign court reporter, be sure to know the applicable union rules that may dictate the hours stenographers can work. Finally, in some situations retaining local counsel is a smart move. Foreign counsel can be used to take care of logistical matters and review any letters of request or rogatory to ensure compliance with local laws. Remember, the whole point is to make sure the evidence obtained through your foreign discovery efforts is trustworthy and admissible. If it isn’t, your efforts and your client’s money may be wasted!