International Litigation – Dealing With Witnesses in Foreign Countries

In the increasingly global economy, it is not uncommon for business disputes to involve international witnesses.  Depositions (the obtaining of witness testimony) in foreign countries requires meticulous planning and strict compliance with immigration and treaty requirements, not to mention a knowledge of local practices.  The following are some basic issues and ways to save money on the process. 

The fundamentals

Below are some of the initial issues your attorney must evaluate in order to determine is an international deposition is feasible:

• Attorneys faced with international depositions must research thoroughly the international law that will govern the scheduling and taking of the deposition. The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention) provides specific and detailed deposition procedures for signatory countries.
• If you do not have a willing witness, it is close to impossible to conduct a foreign deposition. Countries are distrustful of other countries legal practices and are loath to require their residents to testify under oath and expose them to potential liability.  U.S. courts have little power in this situation.

The details

Below are some of the common details your attorney may be forced to navigate in order to successfully conduct a deposition in a foreign land:

• Immigration rules often require that attorneys obtain a temporary work/business visa, and in some cases even a special deposition visa.  This can be so even for many countries that typically do not require U.S. travelers to obtain a visa for normal visits.  These applications may require court orders and specific information about the proceedings, and can take months.
• Deposition locations in some countries are limited in location and duration.  Some countries require that international depositions be taken in an embassy or consulate, creating logistical problems as these rooms are often booked months in advance.
• Finding a good interpreter is another hurdle that can hinder the process.  With highly contested litigation, Not all interpreters have the skills to interpret technical terms involved in litigation.  The search for a good and reliable interpreter alone can take weeks.

Lowering the legal cost

The high legal costs and trouble associated with foreign depositions can be minimized by being prepared and taking some of these steps:

• If litigation you are involved in may require depositions of foreign witnesses, be sure to raise the issue early with your attorney and have him or her seek a stipulation from opposing counsel that specific overseas witnesses will appear voluntarily.
• Arrange for the witness to come to the United States for deposition.  Although there will be high costs associated with travel and accommodation, these will be off set by time and savings should the deposition have been conducted abroad.
• Suggest telephonic deposition or a deposition by teleconference.

 
The world of international litigation is evolving.  The increase of international dispute resolution will eventually lead to easier methods of obtaining international discovery.  Until then, preparation and diligence are the cornerstone of an efficient international deposition.

**THIS IS NOT LEGAL ADVICE**