In a previous blog, letters of request were discussed as a means of deposing an unwilling witness.  Letters of request, however, can be used only if both the requesting authority and the granting authority are parties to The Hague Evidence Convention.  In the absence of a treaty with a foreign government, judicial assistance may still be pursued, however, by means of a letter rogatory.  A letter rogatory can take longer to be processed than a letter of request.

A letter rogatory is submitted via diplomatic channels in most cases, which tends to be quite time consuming.  The execution of a letter rogatory can take a year or longer.  There is a way to shorten the processing time, however.  If the foreign country permits, a copy of the request can be submitted through a local attorney directly to a foreign court or other appropriate authority.  U.S. Embassies and Consulates make available on their websites lists of attorneys who have expressed interest in helping U.S. clients.

A letter rogatory should include the following:

• A statement that a request for international judicial assistance is being made in the interest of justice
• A brief synopsis of the case
• Type of case, e.g., civil, criminal, etc.
• Nature of assistance requested
• Name, address, and other identifiers of persons overseas to be deposed
• A list of questions to be asked
• A list of documents or other evidence to be produced
• A statement from the requesting court expressing a willingness to provide similar assistance to judicial authorities of the receiving state
• A statement that the requesting party is willing to reimburse the judicial authorities of the receiving state for costs incurred in the execution of the requesting court’s letter rogatory
• Signature of a judge

The letter rogatory should be submitted with a cover letter, a translation of the letter into the official language of the foreign country, and a notarized affidavit attesting to the validity of the translation.  A total of four documents should be submitted together to the appropriate diplomatic party or local attorney.  If submitting to the U.S. State Department, a certified check payable to the appropriate U.S. Embassy for applicable consular fees must also be submitted.  The U.S. Embassy will notify the requesting party of any applicable local fees.

As soon as your deposition can move forward, you can begin the scheduling process with a court reporting firm.  This is vital to reduce or even eliminate travel costs for the reporting team, as they will have realtime court reporters and videographers living all over Europe, Asia, and other regions of the world.  This part of the process should be just like scheduling in the U.S. if you partner with the right firm.  The court reporter and videographer will further simplify the process of scheduling depositions abroad by reserving the conference room, printing exhibits, and streaming realtime text and audio to any remote participants, if needed.