During a U.S. federal case, an attorney will often be required to take a deposition in a foreign country. Such foreign depositions, or cross-cultural depositions, if you will, often involve non-English-speaking witnesses and require services of professional foreign language court interpreters, fluent in the deponents’ languages.
According to federal law, a deposition may be taken in a foreign country so long as it is taken before a person authorized to administer oaths or affirmations in the country of the deposition.
This authority can arise from either foreign law or the law of the United States. Two exceptions to this requirement exist. First is when a person is specifically commissioned by the Court to administer the oath and take testimony. Second is when a letter rogatory or letter of request is issued per the provisions of the Hague Convention.
With that said, China, for example, can well deem taking depositions by American attorneys or other persons in China, as a “violation of China‘s judicial sovereignty”, warns the U.S. State Department:
The right to administer oaths in China is strictly governed by local Chinese law and applicable treaty. A person authorized to administer oaths in the United States may not be recognized by Chinese authorities as empowered to perform that function in China. Even a Chinese “notary” or other person empowered to administer oaths may not be recognized by Chinese authorities as empowered to do so in connection with depositions, given China”s strict position on that question. Conducting a deposition in a hotel with oaths to be administered by such a private person could have serious implications for the individual administering the oath, as well as other participants. In 1989, China permitted the taking of a limited deposition in the matter of U.S. v. Leung Tak Lun, et al.; CR 88-0214-WHO in an action before the U.S. District Court for the Northern District of California. China has advised the United States that the granting of authority for the taking of that deposition should not be regarded as a precedent. Efforts to obtain permission from the Chinese Ministry of Foreign Affairs to conduct depositions since that time have proven unsuccessful.
Therefore, prior to conducting the foreign deposition, the attorney must contact the U.S. Department of State to inquire about any special requirements imposed by it or by the foreign country. One common requirement is that a foreign language interpreter be present. Following the deposition, the requesting attorney must submit to the Court all foreign language translations, fees, costs and other required materials.
For additional details on taking depositions in a foreign country, see United States Code Title 26a, Rule 81(2) below:
Foreign Depositions: In a foreign country, depositions may be taken
(A) before a person authorized to administer oaths or affirmations in the place in which the examination is held, either by the law thereof or by the law of the United States, or
(B) before a person commissioned by the Court, and a person so commissioned shall have the power, by virtue of the commission, to administer any necessary oath and take testimony, or
(C) pursuant to a letter rogatory or a letter of request issued in accordance with the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. (Part 3) 2555. A commission, a letter rogatory, or a letter of request shall be issued on application and notice and on terms that are just and appropriate. The party seeking to take a foreign deposition shall contact the United States Department of State to ascertain any requirements imposed by it or by the foreign country in which the deposition is to be taken, including any required foreign language translations and any fees or costs, and shall submit to the Court, along with the application, any such foreign language translations, fees, costs, or other materials required. It is not requisite to the issuance of a commission, a letter rogatory, or a letter of request that the taking of the deposition in any other manner be impracticable or inconvenient; and both a commission and a letter rogatory, or both a commission and a letter of request, may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed “To the Appropriate Authority in [here name the country].” A letter of request is addressed to the central authority of the requested State. The model recommended for letters of request is set forth in the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. Evidence obtained by deposition or in response to a letter rogatory or a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions within the United States under these Rules.
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