DISCOVERY ABROAD HOW TO OBTAIN EVIDENCE LOCATED OUTSIDE THE UNITED STATES

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1 DISCOVERY ABROAD HOW TO OBTAIN EVIDENCE LOCATED OUTSIDE THE UNITED STATES By KYL attorneys Elizabeth P. Beazley and Tara B. Voss California Litigation Volume 25 Number This article was previously published in California Litigation, the Journal of the Litigation Section, State Bar of California. In today s economy, critical evidence often resides with witnesses located beyond the borders of the United States. This article is intended to highlight the tools available to practitioners seeking to obtain discovery from foreign party and non-party witnesses. California Rules and Requirements In 2011, the Second District held that a trial court lacks the power to compel a foreign witness to attend a deposition in California. (Toyota Motor Corp. v. Superior Court (2011) 197 Cal. App. 4th 1107, 1110.) As a result, unless otherwise agreed, the deposition of a foreign witness must be conducted in the deponent s home country. (Ibid.) The Appellate Court reasoned that section 1989 of the California Code of Civil Procedure, which provides that a party or non-party witness is not obligated to appear before any court unless the witness is a resident of California, applies equally to trials and depositions. (Ibid. at 1113.) While the Appellate Court held that a trial court lacks the power to compel a natural person to attend a deposition in California, it left open the right to compel the presence of a party deponent, arguably obligating a corporate representative to appear pursuant to Code Civ. Proc and (b). (See Ibid. at 1125 n.20.) Thus, if a party wants to depose witnesses who reside in Los Angeles, Brussels and the People s Republic of China, the Californian may be compelled to a deposition, while the deposition of the Belgian witness must go forward in Brussels and the Chinese witness may not go forward as depositions are not permitted in China. Noticing the Deposition of a Party. To notice the deposition of a foreign party, including a person most knowledgeable, or an officer, director, managing agent or employee of a foreign party ( party affiliate ), the notice must be served on counsel of record. (Code Civ. Proc (a) (b).) Sanctions can be awarded if the deponent fails to comply. (See Volkswagenwerk Aktiengesellschaft v. Super. Ct. (Thomsen) (1981) 123 Cal. App. 3d 840, ) Noticing the Deposition of a Non-Party. If the foreign deponent is not a party or a party affiliate, a notice alone might not suffice to compel his/her attendance. Instead, the propounding party must follow the procedures below

2 Procedure. The procedures for taking depositions in a foreign country apply equally to parties and nonparties (Code Civ. Proc (a)), and require a motion to the California court for a commission, letter rogatory or letter of request (collectively Request ) for an order to enlist the assistance of the foreign court. In determining the proper form of the Request, the party should consult the law of the jurisdiction where the deposition is to be taken. The content of the Request must adhere to the requirements of the relevant California Code sections and the laws of the foreign jurisdiction. The Code requires that depositions taken in foreign nations be conducted under the supervision of (1) someone authorized to administer oaths in the United States or the foreign nation; (2) a person or officer appointed by the Request; or, (3) any person agreed to by all the parties. (Ibid subd. (d).) Once the appropriate order is issued, the propounding party must send it to the United States Department of State, as it transmits the paperwork to the appropriate foreign tribunal for the issuance of the subpoena or order which compels the attendance of the deponent. ( Foreign nations sometimes impose additional rules for conducting depositions. For example, in Japan, Switzerland or Germany, the deposing party must obtain governmental authorization. (See Japan also requires that deposition take place in the United States Embassy, and that persons travelling to participate in a deposition apply to the Japanese Foreign Ministry for a special deposition visa. (See Practitioners scheduling a deposition at the U.S. Embassy in Tokyo should be mindful that the embassy is generally booked six months in advance. (Ibid.) Some countries have passed laws that prohibit the taking of depositions ( blocking statutes ). Indeed, the Russian Federation, The People s Republic of China (excluding the Special Administrative Region of Hong Kong) and Brazil preclude depositions of their citizens within their countries entirely. (See Nevertheless, California courts may impose sanctions on parties who refuse to comply with a discovery order, even though compliance is inconsistent with a blocking statute. (See Societe Nationale Industrielle Aerospatiale v. United States District Court (1987) 482 U.S. 522, 544 n.29 [ It is well settled that foreign blocking statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute. ]; Accord Am. Home Assurance Co. v. Societe Commerciale Toutelectric (2002) 104 Cal. App. 4th 406, [terminating sanctions were appropriate where refusal to produce witnesses located in France for deposition was persistent, willful and unjustified. ].) - 2 -

3 The Hague Convention California practitioners also may avail themselves of the streamlined procedures of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters if the witness or evidence resides in a country that is a signatory to the Convention. (Convention on the Taking of Evidence Abroad in Civil or Commercial Matters art. 1, March 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231 (the Hague Convention or Convention ).) In California, practitioners may elect to use the Hague Convention to obtain deposition testimony or documentary evidence, but they are not required to do so. (See Am. Home Assurance Co., supra., at p. 409.) The Convention provides for the taking of evidence by (i) a judicial authority by means of letters of request, or by (ii) diplomatic or consular agents and commissioners. (Outline: Evidence Convention, If the foreign country permits counsel to take depositions without the involvement of a foreign court, a stipulation of the parties might suffice. For example, Canada does not prohibit foreign tribunals or litigants from deposing a willing person in a private civil matter. ( Where a witness is unwilling to testify or when production of documents is required, litigants must obtain the required evidence by a letter rogatory/letter of request to the appropriate Canadian Court. (Ibid.) Evidence by Means of Letters of Request. A letter of request ( Letter ) is issued by a California court requesting a foreign judicial authority to compel a deposition or obtain evidence. (Matthew Bender, Cal. Depo. & Disc. Pract. (2011) 6.14(2)(b)); (Amram, Ph.W., Explanatory Report, A Letter must include: (a) the name of the authority issuing the Letter and the authority requested to execute it, if known; (b) the names and addresses of parties/representatives to the proceedings for which evidence is sought; (c) the nature of the proceedings; and (d) the evidence to be obtained or judicial act to be performed. (Hague Convention art. 3 subd. (a d).) The practitioner may also address other issues such as the parties who wish to be present at the proceedings. Additionally, if appropriate, the Letter should specify: (a) the names and addresses of the persons to be examined; (b) the questions or subject matter of the questions to be put to the person; (c) the documents or other property to be inspected; (d) any requirement that oaths, affirmations, or special forms be used; and, (e) any special method or procedure to be followed under Article 9 of the Hague Convention ( Article 9 ). (Ibid. art. 3 subd. (e i).) Under Article 9, a judicial authority executing a Letter will apply its own law to the procedures; however, if the Letter specifies that a particular procedure is to be followed, the executing authority must follow that procedure unless it is impossible, incompatible or conflicts with its internal laws. (Ibid. art. 9.) For example, cross-examination is not employed in most civil law countries

4 Therefore, it may not be practical for some of those countries to comply with a Letter requesting crossexamination. Letters must be issued under seal of the California court with the judge s signature. ( The clerk should not sign on behalf of the judge. For most countries, the seal of the court and signature of the judge is sufficient, however some require further authentication, including Triple Certification where the clerk certifies that the judge is the judge, and the judge certifies that the clerk is the clerk. It is important to determine the country-specific requirements in order to avoid wasting time and money. Letters must be sent directly to the central authority of the executing country. (Hague Convention, art. 2.) The Convention suggests that a Letter be translated into the language of the authority requested to execute it. As a matter of good practice, it is advisable to submit (a) one original and one copy of the letter in English and bearing the seal of the court in which the evidence is sought, and (b) one original and one copy of the translated Letter into the language of the executing country. ( Generally, there is no fee to execute a Letter. (Hague Convention art. 14, 26, and 28(f).) However, the executing country may seek reimbursement for fees it paid to experts and interpreters in accordance with paragraph 2 of Article 14. Evidence by Diplomatic or Consular Agents and Commissioners. In contrast to invoking the services of a foreign judicial authority, the Convention authorizes diplomatic or consular agents and commissioners ( Diplomat ) to take evidence in aid of proceedings commenced in the United States. (Hague Convention art ) This method of discovery is only used in cases where the witness will appear for a deposition or produce documents voluntarily. Article 15 allows a Diplomat to take evidence of willing United States nationals residing in the foreign country where the Diplomat is assigned. (Ibid. art. 15.) Article 16 allows a Diplomat to take evidence from nationals of the country where she exercises her functions and/or from nationals of another country. (Ibid. art. 16.) Article 17 authorizes court appointed commissioners to take evidence in the foreign nation in which they serve in aid of proceedings commenced in another foreign nation. If the foreign nation permits a Diplomat to take evidence pursuant to Articles 15, 16, or 17, evidence is taken in accordance with the law of the Court before which the action is initiated e.g., California unless it is forbidden by the law of that country. (Outline: Evidence Convention, Thus, a California court may order a Diplomat to take the deposition of a named witness in accordance with California procedure. (Cal. Depo. & Disc. Pract. 6.13(1); Code Civ. Proc (e).) - 4 -

5 Each country that is a party to the Convention may make specific reservations and declarations regarding its adoption of these rules and therefore, it is important to check the country-specific reservations available on the Hague Convention s website. (Outline: Evidence Convention, Cost of Obtaining Discovery Irrespective of how a party chooses to obtain discovery in a foreign jurisdiction, the costs are best managed by cooperation of counsel, stipulations, and where possible, the taking the depositions by telephone, video conference or other electronic means. While a party deponent must appear in person for the deposition, a non-party or non-party affiliate may, depending on the terms of the Request and the laws of the foreign jurisdiction, be sworn and testify remotely. (Code Civ. Proc (c); Cal. R. Court (c) (d).) If an alternative means cannot be arranged or are not suitable, costs for conducting the deposition include airfare, room and board, interpreters and court reporters, and oath administrators. Moreover, the requesting party will be charged for any assistance provided by the U.S. consulate. (See, e.g., 22 C.F.R ) Such charges may add up quickly. By way of example, the fee to process letters rogatory, including providing seal and certificate for return of letters executed by foreign officials, is approximately $2,275. The charge for a consular officer to schedule an appointment for a deposition, including a deposition by video teleconference, is $475 per appointment, and if the appointment needs to be rescheduled, an additional $475 fee will be assessed. (Ibid.) Where permitted by the law of the foreign nation, a stipulation of counsel to permit the deposition of a foreign witness may significantly reduce the cost of discovery. Elizabeth (Lisa) Beazley is a shareholder and Tara Voss is an associate at Keesal, Young & Logan (KYL), a firm with offices in Long Beach, San Francisco, Seattle, Anchorage, and Hong Kong. The authors are grateful to KYL associates Michael West and Brian Bohn for their assistance