1. German authorities can appoint a neutral “commissioner” to oversee the deposition process.

• Article 17 of The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides this option. The U.S. Supreme Court has confirmed that the Hague Convention contains options for obtaining evidence abroad.
• The pandemic and the rise of virtual meetings has contributed to this approach.
• Some case law, as well as an acting commissioner’s approach, provides guidance on the details:
  • Lawyers may question the witness directly.
  • A court reporter can make a transcript.
  • Lawyers cannot cross-examine a witness or record the deposition by video.

2. Witnesses can give depositions at the U.S. Consulate General in Frankfurt.

• A consular officer controls the process, including the questions.
• The German Procedural Code does not apply in this setting; the parties can ignore restrictions on questioning or oaths that otherwise would apply.
• The U.S. Consulate General emphasizes the importance of planning ahead to secure a consular officer’s availability.

3. A witness can leave Germany to give a deposition abroad.

• Some parties determine that travelling abroad – for example, to the UK – can overcome hurdles imposed by German law.
• No restrictions prohibit a German witness from voluntarily agreeing to such an approach.

In Summary: Options Exist

Depositions are a common feature in U.S. litigation. The parties enjoy great flexibility when choosing the place for this part of the pre-trial discovery process. In the Aerospatiale decision the U.S. Supreme Court confirmed that the Hague Convention contains options for obtaining evidence abroad that can be tailored by the parties.

In Germany, by contrast, statutes exclude taking evidence outside the presence of a judge. Many U.S. lawyers are surprised to learn that deposing a witness in Germany for litigation in the U.S. violates Germany sovereignty, though the legal consequences are unclear. At a minimum, issues may arise if a court decision requires enforcement in Germany. If the deposition involves administering an oath – common in the U.S. – parties face the possibility of more severe legal consequences, including criminal charges.

That can put lawyers in a quandary when they seek to depose a witness in Germany for litigation in the U.S., but options exist to achieve the goal. The right solution will depend on the flexibility of the witness and the available lead time. The costs involved, as well as the access of appropriate support by a court reporter, may also have some bearing on the options.