When taking a deposition in the United States, it is fairly common for the witness to be sworn in by the court reporter, as nearly all court reporters are notaries.  However, a U.S. notary’s powers do not extend beyond the borders of the United States and her territories.  When taking a deposition outside of the United States, a logical question arises: who will swear in the witness?  There are a number of possible solutions to this dilemma.  Two are described below.

The first (and typically less costly) option is to stipulate with the other parties involved in a matter that the court reporter can swear in the witness even though the reporter is out of his/her jurisdiction.  This conversation should be had sooner rather than later, however.  If the parties cannot agree to this stipulation, in these instances, please refer to the second option offered.  With the expense involved in taking depositions outside of the U.S., it would create a difficult situation if all parties are not in agreement about this issue at the beginning of a deposition.

If the parties cannot agree on the oath stipulation, the second option is to have a U.S. Consular Officer swear in the witness.  In some countries, like Germany, for example, a U.S. Consular Officer is required to administer the oath, in addition to holding all depositions on U.S. Consulate grounds.  The fees involved with making a reservation to take a deposition at the U.S. Consulate can be quite hefty (for example: U.S. Embassy – Japan Deposition Fees), and the hours tend to be very strict.  It is therefore preferable to take your depositions at a different location, if that is permissible in the country where your depositions are scheduled.

It is very important to check regarding local laws governing depositions in foreign countries.  A good rule of thumb is to review the State Department’s website for this information.  Once you have determined where and how depositions can be taken in the country where your depositions are scheduled, you can work with opposing counsel to come to an agreement regarding the administration of the oath and to ensure your witness’ testimony is admissible in court.