Scheduling International Depositions of an Unwilling Witness, Part One: Letters of Request

Planet Depos, LLC

One of the first things to consider when coordinating an international deposition is determining if the witness is willing to be deposed.  In the event a witness is unwilling to be deposed and must be compelled to do so, you do have recourse.  Either a letter of request or a letter rogatory will likely be required.  It is important to keep in mind that it can take several months or up to a year (in some cases, longer) for foreign courts to execute letters of request or letters rogatory.  Hence the importance of determining as early as possible if the witness is willing.  This article will focus on letters of request, and an additional article will follow on letters rogatory.

If the deposition is to be taken in a country which is a party to The Hague Evidence Convention, you can submit a letter of request directly to the Central Authority to obtain evidence which will be used in judicial proceedings.

Per Chapter I of The Hague Evidence Convention, each letter of request shall specify the following:

  • The authority requesting its execution and the authority requested to execute it, if known to the requesting authority
  • The names and addresses of the parties to the proceedings, and their representatives, if any
  • The nature of the proceedings for which the evidence is needed, including all relevant information in regard thereto
  • The evidence to be obtained

When appropriate, the letter shall also specify, inter alia, the following:

  • The names and addresses of the persons to be examined
  • The questions to be put to the persons to be examined, or a statement of the subject matter about which they are to be examined
  • The documents or other property, real or personal, to be inspected
  • Any requirement that the evidence is to be given on oath or affirmation, and any special form to be used
  • Any special method or procedure to be followed under Article 9 (of Chapter I of the Hague Evidence Convention)
  • Article 9 states: “The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution, or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.”

The Hague Convention does provide a model to use for a letter of request.  The letter should either be in the language of the authority requested to execute it, or accompanied by a translation into that language.

Once your letter has been executed, the process becomes much less tedious.  You can now reserve a reporter, videographer and interpreter for your upcoming depositions.  In addition to providing realtime coverage, the reporter can take care of printing exhibits (and the confidential destruction of them when the time comes), and also recommend the best local places to eat, shop, etc.  The videographer can take care of details for the conference room from catering requests to ensuring the room is locked each evening.  The videographer will also resolve any technical issues which may arise, for example, with the realtime stream to remote participants or any mobile videoconference hiccups.

Written by:

Planet Depos, LLC

Planet Depos, LLC on:

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