Technology Is No Substitute for Careful Planning of International Depositions

No doubt remote deposition technology is compelling. Not only can remote depositions lower litigation spending and free up valuable attorney hours, they offer litigators the ability to efficiently depose witnesses located anywhere in the world. In fact, international depositions were among the most common types of remote depositions before the COVID-19 pandemic made remote the default format choice for domestic depositions as well.

However, it’s important to remember that technology has not eliminated the need for careful research and planning when it comes to international depositions. This is particularly true when the intended deponent is a non-party residing outside the United States. Nearly all countries have rules that protect their citizens from U.S. legal processes, and it’s not difficult for reluctant deposition witnesses to find a sympathetic ear in their local courts.

The recent Ontario, Canada, court ruling in Hospira Healthcare v. Rotsztain, 2023 ONSC 4283 (CanLII), is a good example. The underlying dispute, filed in the New York Supreme Court, was a breach of contract action between two U.S. companies arising from a failed agreement to develop a line of antibiotic medications for sale in the United States. The defendant, Hospira Healthcare, sought to depose an Ontario-based attorney who, it claimed, possessed information relevant to the parties’ dealings. Hospira Healthcare claimed – to make a very long story short – that the Ontario-based attorney had set up a shell corporation that was used to evade exclusivity provisions in the parties’ drug development agreement.

Hospira Healthcare obtained letters rogatory from the New York state trial court ordering the Ontario-based attorney to make himself available for a deposition. However, in Hospira Healthcare v. Rotsztain, the Ontario court refused to enforce them. The court ruled that Hospira Healthcare was engaging in a “fishing expedition” that is unlawful under Canadian and Ontario provincial laws.

The crux of the court’s ruling is that the Ontario-based attorney was entitled to the protections of Canada’s pretrial discovery laws, which are less permissive than the liberal discovery rules prevailing in the United States. In the United States, pretrial discovery is allowed if there is any possibility that the information sought may be relevant to any claim or defense in the underlying action. In Ontario, however, the information sought must be relevant to a contested issue in the underlying case. This is a significantly more demanding standard, and it doomed Hospira Healthcare’s bid to depose the Ontario-based attorney.

The court appeared sympathetic to the Ontario-based attorney’s complaint that he had no opportunity to participate in the proceeding that led to the issuance of the letters rogatory. And the fact that the deposition would have been conducted remotely didn’t factor at all into the court’s assessment of the burden the attorney would face if forced to submit to a deposition.

Differences in pretrial discovery standards (among other possible legal differences) in foreign countries are not the only challenge for U.S. litigators seeking to depose witnesses outside the United States. Nearly every country has its own special rules and procedures for deposing citizens in foreign litigation.

There’s good news if the intended deponent resides in one of the countries participating in the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The Hague Evidence Convention supplies a uniform procedure for deposing citizens of countries that have acceded to the convention. However, even a cursory review of the convention should bring the realization that compliance will demand careful attention to detail and many additional weeks of planning in advance of the deposition date. The rules are clear enough. But they are complicated as well.

If the intended deponent resides in a country not covered by the Hague Evidence Convention, then counsel is obliged to conduct a thorough investigation of the rules for that particular country. Some places can be quite demanding. In Japan, for example, depositions – even remote depositions – must take place at either the U.S. Embassy in Tokyo or the U.S. Consulate in Osaka. As Holland & Hart litigators Bryce Kunimoto and Erica Medley explained in a recent blog post:

It is illegal to take a deposition in Japan at a law firm, hotel, or any other venue in Japan, even if done by video. Rather, any witness in Japan who is being deposed must be physically present in a U.S. Embassy or Consulate deposition room.

Japan’s requirement that remote depositions be conducted in government offices creates additional problems: In-room participants are limited to five individuals, a good Internet connection is not assured, and the deposition rooms are only available for a few hours each day. In short, a logistical headache is assured.

Reasonable takeaways from the foregoing examples of challenges involving international depositions include:

  1. Be mindful of the differences between parties and non-parties. Local laws are highly protective of individuals not involved in the litigation.
  2. Obtain stipulations from opposing counsel whenever possible. Remember: Litigators have wide freedom to craft their own rules for most pretrial discovery matters.
  3. Ensure that the deposition witness will be sworn in by a court reporter lawfully authorized to do so. Each country will have its own rules for administering the oath.
  4. Secure a deposition location that is legally permitted by the country in which the deponent resides.
  5. Secure a deposition location with a robust Internet connection. Take care that everyone on the litigation team has access to the correct connection parameters for accessing the deposition.
  6. Decide whether an interpreter or legal videographer are necessary.
  7. Make provisions for transmitting and introducing exhibits and other documents during the deposition.

Obviously, the additional hurdles necessary to conduct a successful international deposition will take a significant amount of preparation time beyond what’s necessary for domestic depositions. Your court reporting services provider should be a reliable and informed partner in all deposition planning activities, particularly when unique circumstances such as international depositions are under consideration.