7 FAM 920
TAKING VOLUNTARY DEPOSITIoNS OF WILLING WITNESSES
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 921 PROCEDURES FOR ORAL
EXAMINATION OF WITNESSES
(CT:CON-449; 03-25-2013)
a. What is a Willing Witness? Voluntary depositions
are taken with respect to the testimony of willing witnesses. Willing
witnesses are simply witnesses who are not compelled to testify pursuant to
court order. Accordingly, willing witnesses may include witnesses that are
actually unhappy or reluctant witnesses (see 22 CFR 92.49, 22 CFR 92.50, and 22
CFR 92.51).
b. Statutory Function: Consular responsibilities with
respect to taking depositions are statutorily recognized.
(1) See 22 U.S.C. 4215 and 22 U.S.C. 4221; and
(2) Rule 28 of the Federal Rules of Civil Procedure
provides:
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Persons Before Whom Depositions May Be Taken
(b) In Foreign Countries.
Depositions may be taken in a foreign country (1)
pursuant to any applicable treaty or convention, or (2) pursuant to a letter
of request (whether or not captioned a letter rogatory), or (3) on notice
before a person authorized to administer oaths in the place where the
examination is held, either by the law thereof or by the law of the United States,
or (4) before a person commissioned by the court, and a person so
commissioned shall have the power by virtue of the commission to administer
any necessary oath and take testimony. A commission or a letter of request
shall be issued on application and notice and on terms that are just and
appropriate. It is not requisite to the issuance of a commission or a letter
of request that the taking of the deposition in any other manner is
impracticable or inconvenient; and both a commission and a letter of request
may be issued in proper cases. A notice or commission may designate the
person before whom the deposition is to be taken either by name or
descriptive title. A letter of request may be addressed "To the
Appropriate Authority in [here name the country]." When a letter of
request or any other device is used pursuant to any applicable treaty or
convention, it shall be captioned in the form prescribed by that treaty or
convention. Evidence obtained in response to a letter of request need not be
excluded merely because it is not a verbatim transcript, because the
testimony was not taken under oath or because of any similar departure from
the requirements for depositions taken within the United States under these
rules.
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(3) If the host country permits taking depositions,
consular officers should try to comply with the request, subject to scheduling
issues. Some countries prohibit taking depositions. For example:
The Russian Federation
The Peoples Republic of China
Brazil
Note: See Department of State, Digest of U.S. Practice in
International Law.
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Digest of U.S. Practice in International Law
2000
Declaration re Air Crash at Agana, Guam (Korea
Judicial Assistance)
Declaration re U.S. v. Jones (China Judicial
Assistance)
2001
Declaration re U.S. v. Porecca (Brazil Judicial
Assistance)
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(4) Host Country Permission to Take Depositions: Some
countries generally permit taking depositions, but require specific permission
to do so. For example:
Japan
Switzerland
Germany
c. Authority Under Local Law: The authority to
conduct voluntary depositions may be secured in the host country by local law.
Consular officers should be generally familiar with the provisions of local law
regarding depositions. See the OCS Intranet Judicial Assistance feature for
our questionnaire for host countries regarding judicial assistance.
d. Treaty Authority: There are a variety of treaty
authorities for taking depositions. See Treaties in Force and the Treaties
Feature on the OCS Intranet page.
(1) The Vienna Convention on Consular Relations;
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Article 5 f and j
(f) acting as notary and civil registrar and in
capacities of a similar kind, and performing certain functions of an
administrative nature, provided that there is nothing contrary thereto in the
laws and regulations of the receiving State.
(j) transmitting judicial and extrajudicial
documents or executing letters rogatory or commissions to take evidence for
the courts of the sending State in accordance with international agreements
in force or, in the absence of such international agreements, in any other
manner compatible with the laws and regulations of the receiving State.
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(2) Bilateral Consular Conventions:
(3) The Hague Evidence Convention. If a country is a
party to the Hague Evidence Convention, it is important to review that
countries reservations and declarations to see if it objected to the taking of
depositions (Chapter II, Articles 15-22); and
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Country or Jurisdiction
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Information From Hague Conference Evidence Convention
Status Page Unless Otherwise Noted
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Albania
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Albania will not execute letters of request for
pre-trial discovery of documents
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Argentina
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Excludes all provisions of Chapter II
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Australia
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Pursuant to Article 15, evidence may be taken by a
diplomatic officer or consular agent only if permission to that effect is
given upon application to the Secretary of the Attorney-General's Department
of the Commonwealth of Australia
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Barbados
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No declarations or reservations regarding Chapter II.
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Belarus
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In accordance with Articles 16 and 17 of the Convention
the Republic of Belarus declares that a diplomatic officer or consular agent
and a person duly appointed as a commissioner may take the evidence in the
territory of the Republic of Belarus in civil and commercial matters without
compulsion with prior permission by the competent authorities and on the
conditions which competent authorities has specified.
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Bulgaria
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Excludes Articles 16, 17, 18, and 19 of Chapter II of
the Convention
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China, Peoples Republic
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Depositions Not Permitted
In accordance with Article 33 of the Convention, the
provisions of Chapter II of the Convention except for Article 15 will not be
applicable."
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Croatia
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In accordance with Article 8 of the Convention, the
Republic of Croatia declares that the judicial personnel of the requesting
State may be present at the execution of a Letter of Request, with the prior
authorization of the Ministry of Justice of the Republic of Croatia.
In accordance with Article 15 of the Convention, the
Republic of Croatia declares that a diplomatic officer or consular agent of a
Contracting State may in the territory of the Republic of Croatia take
evidence without compulsion, in aid of the proceedings commenced before
courts of the State he represents, without the prior permission of the
Croatian Central Authority, provided that taking evidence is only related to
a person who is a national of the State he represents.
In accordance with Article 23 of the Convention, the
Republic of Croatia declares that it will not execute Letters of Request
issued for the purpose of pre-trial discovery of documents as known in Common
Law countries.
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Cyprus
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In accordance with Article 18 the Republic of Cyprus
declares that a diplomatic officer, consular agent, or commissioner
authorized to take evidence under Articles 15, 16, or 17 may apply to the
competent authority for appropriate assistance to obtain such evidence by
compulsion as prescribed by the law for internal proceedings, provided that
the requesting Contracting State has made a declaration affording reciprocal facilities
under Article 18.
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Czech Republic
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With reference to Article 16 of the Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters, concluded at The
Hague on 18 March 1970, that evidence may be taken in accordance with Chapter
II without its prior permission provided the principle of reciprocity is
applied.
The Czech Republic also declares, in connection with
Article 18 of the said Convention, that a diplomatic officer, consular agent,
or commissioner authorized to take evidence under Articles 15, 16, and 17,
may request the competent Czech court or the Czech State notary to carry out
procedural action and that such a diplomatic officer, consular agent, or
commissioner will transmit the dossier to that court or notary through the
intermediary of the Minister of Justice of the Czech Republic in Prague,
provided the principle of reciprocity is applied.
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Denmark
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Article 15: A diplomatic officer or consular agent may
take evidence if he has been authorized to do so by the Ministry of Justice.
Article 16: The Ministry of Justice gives its permission
that evidence may be taken.
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Estonia
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No reservations or declarations to Chapter II.
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Finland
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The evidence referred to in Articles 16 and 17 of the
Convention may be taken without the prior permission of the Finnish
authorities.
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France
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In accordance with the provisions of Article 17, the
Service Civil de l'Entraide Judiciaire Internationale, and Ministre de la
Justice, has been designated as the authority competent to authorize persons
duly appointed as commissioners to take evidence without compulsion in aid of
proceedings commenced in the courts of a Contracting State. This
authorization, which will be given for each particular case, accompanied if
need be by particular conditions, shall be subject to the following general
conditions:
1. The evidence must only be taken within the precincts
of the Embassies;
2. The Service Civil de l'Entraide Judiciaire
Internationale must be given due notice of the date and time at which the
evidence is to be taken so that it can make representatives available if
necessary;
3. The evidence must be taken in a room to which the
public has access;
4. The persons who are to give evidence must receive due
notice in the form of an official summons drawn up in French or accompanied
by a translation into French, and stating:
(a) That the taking of evidence for which the person
concerned is summoned is based on the provisions of the Hague Convention of
18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial
Matters, and is part of the judicial proceedings taken in a court designated
by a Contracting State by name;
(b) That appearance for the giving of evidence is
voluntary and that non-appearance cannot lead to prosecution in the
requesting State;
(c) That the parties to any action consent to it or,
if they do not, their reasons for this;
(d) That the person who is to give evidence is
entitled to legal advice; and
(e) That the person who is to give evidence can
claim dispensation or prohibition from doing so.
A copy of the summonses will be sent to the Ministre de
la Justice.
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Germany
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The taking of evidence by diplomatic officers or
consular agents pursuant to paragraph 1 of Article 16 of the Convention which
involves nationals of a third State or stateless persons shall be subject to
permission from the Central Authority of the Land where the evidence is to be
taken. Pursuant to paragraph 2 of Article 16 of the Convention, permission
shall not be required if the national of the third State is also a national
of the State of the requesting court.
A commissioner of the requesting court may not take
evidence pursuant to Article 17 of the Convention unless the Central
Authority of the Land where the evidence is to be taken has given its
permission. Such permission may be made subject to conditions. The local
court in whose district official acts would have to be performed by virtue of
a Letter of Request in the same matter shall be entitled to control the
preparation and the actual taking of the evidence. Under the second sentence
of Article 19 of the Convention, a member of the court may be present at the
taking of the evidence.
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Greece
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In terms of article 18, Greece declares that it shall
provide the necessary assistance for the execution of evidentiary proceedings
as referred to in articles 15, 16, and 17 provided such execution shall be
carried out in accordance with the Greek law.
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Hungary
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In accordance with Article 15 of the Convention the
diplomatic officer or consular agent of a Contracting State may in the
territory of the Republic of Hungary take the evidence in aid of proceedings
commenced in the courts of a state which he represents without prior
permission of the Hungarian authorities provided that the person affected is
exclusively national of the sending state of the diplomatic officer or
consular agent. Taking of evidence shall not involve applying or holding out
of the prospect of compulsion or disadvantageous legal consequences.
To Article 17 In the Republic of Hungary the Central
Authority is entitled to give the permission set out in Paragraph 2 of
Article 17 of the Convention.
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Iceland
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Iceland declares, in accordance with Article 8 of the
Convention, that members of the judicial personnel of the requesting
authority of another Contracting State may be present at the execution of a
Letter of Request if prior permission has been granted by the Ministry of Justice
and Ecclesiastical Affairs.
In accordance with Article 15, paragraph 2, of the Convention, Iceland
declares that evidence may be taken by a diplomatic officer or consular agent
only if permission to that effect has been given by the Ministry of Justice
and Ecclesiastical Affairs upon application made by him or on his behalf.
In accordance with Article 23, Iceland declares that it will not execute
Letters of Request issued for the purpose of obtaining pre-trial discovery of
documents as known in Common Law countries.
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India
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Subject to prior authorization of the Central Authority
and the concerned court, members of the judicial personnel of the requesting
Contracting Party may be present at the execution of a letter of request.
Evidence by diplomatic officers or consular agents of Indian nationals or
nationals of a third State under Article 16 of the Convention can be taken
with the prior permission of the Central Authority.
In accordance with Article 18, a diplomatic or consular officer or a
commissioner authorized under Article 15, 16, and 17 may apply for
appropriate assistance to obtain the evidence by compulsion to the District
Court within whose territory the evidence is to be taken.
The Republic of India will not execute Letters of Request issued in pursuance
of Article 23 of the Convention for the purpose of obtaining pre-trial
discovery of documents, which requires a person to produce any documents
other than particular documents specified in the Letter of Request, which are
likely to be in his possession, custody or power.
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Israel
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No declaration or reservation regarding Chapter II.
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Italy
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The Italian Government declares, in accordance with
Article 18, that a diplomatic officer, consular agent, or commissioner who is
taking evidence under Article 15, 16, or 17, may apply to the authority
designated by the Italian State under (4) paragraph 2 below, for appropriate
assistance to obtain the evidence by compulsion.
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Korea
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Reservations
In accordance with Article 33, the Republic of Korea
excludes the application within its territory of the provisions of Articles
16 and 17 of Chapter II of the Convention.
Declarations
1. In accordance with Article 8, the Government of the
Republic of Korea declares that members of the judicial personnel of the
requesting authority of another Contracting State may be present at the
execution of a Letter of Request with prior authorization by the competent
authority of the Republic of Korea.
2. In accordance with Article 23, the Government of the
Republic of Korea declares that it will not execute Letters of Request issued
for the purpose of obtaining pre-trial discovery of documents. The Government
of the Republic of Korea further declares that it understands "Letters
of Request issued for the purpose of obtaining pre-trial discovery of
documents" for the purposes of the foregoing Declaration as including
any Letter of Request which requires a person:
a. To state what documents relevant to the proceedings
to which the Letter of Request relates are, or have been, in his or her
possession, custody or power; or
b. To produce any documents other than particular
documents specified in the Letter of Request as being documents appearing to
the requested court to be, or to be likely to be, in his or her possession,
custody, or power.
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Kuwait
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No declarations re reservations.
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Latvia
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No declarations or reservations regarding Chapter II.
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Liechtenstein
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Declaration concerning Article 8 of the Convention:
Pursuant to Article 35 (2) of the Convention, the Principality of
Liechtenstein declares that members of the judicial personnel of the
requesting authorities who are part of the proceedings of a Contracting State
may be present at the execution of a Letter of Request, if they have received
prior authorization by the authorities that are competent for the execution.
Declaration concerning Article 11 of the Convention:
Pursuant to Article 11 of the Convention, the Principality of Liechtenstein
recognizes the privileges and duties of the person concerned to refuse to
give evidence in so far as the person has these privileges and duties under
the law of his State of origin.
Declaration concerning Articles 15, 16, and 17 of the Convention:
Pursuant to Article 35 of the Convention, the Principality of Liechtenstein
declares that the taking of evidence as referred to in Articles 15, 16, and
17 of the Convention is subject to prior permission by the Government of the
Principality of Liechtenstein.
Declaration concerning Article 18 of the Convention:
The Principality of Liechtenstein does not grant any assistance by measures
of compulsion to diplomatic officers or consular agents acting under Articles
15, 16, and 17 of the Convention.
Declaration concerning Article 23 of the Convention:
Pursuant to Article 23 of the Convention, the Principality of Liechtenstein
declares that Letters of Request issued for the purpose of obtaining
pre-trial discovery of documents will not be executed.
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Lithuania
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Whereas it is provided in Article 16 of the Convention,
the Republic of Lithuania declares that a diplomatic officer or consular
agent of a Contracting State may take evidence, without compulsion, of
citizens of the Republic of Lithuania under the Law on Citizenship of the
Republic of Lithuania, only under the prior permission of the Ministry of
Justice of the Republic of Lithuania. The permission to take evidence issued
by the Ministry of Justice of the Republic of Lithuania shall indicate that:
(a) evidence shall be taken by a diplomatic officer
or consular agent only within the premises of the embassy or consular
institution of the State which he/she represents;
(b) the Ministry of Justice of the Republic of
Lithuania shall be informed about the time and place of the taking of
evidence;
(c) evidence shall be taken in the Lithuanian or
another language understandable to the person giving evidence or taking of
evidence and shall be accompanied by a translation into the Lithuanian or
another language understandable for such person;
(d) The document concerning the taking of evidence
written in the language understandable to the person giving evidence shall be
signed by this person. The copy of such document shall be forwarded to the
Ministry of Justice of the Republic of Lithuania;
And whereas it is provided in Article 17 of the
Convention, the Republic of Lithuania declares that a person duly appointed
as a commissioner for this purpose may, without compulsion, take evidence in
the territory of the Republic of Lithuania from the person which is a citizen
of the Republic of Lithuania under the Law on Citizenship of the Republic of
Lithuania, if the Ministry of Justice of the Republic of Lithuania has given
its prior written permission. The permission issued by the Ministry of
Justice of the Republic of Lithuania shall indicate that:
(a) The Ministry of Justice of the Republic of
Lithuania shall be informed about the time and place of the taking of
evidence;
(b) The evidence shall be taken in the Lithuanian or
another language understandable to the person giving evidence or taking of
evidence shall be accompanied by a translation into the Lithuanian or another
language understandable for such person;
(c) The document concerning the taking of evidence
written in the language understandable to the person giving evidence shall be
signed by this person. The copy of such document shall be forwarded to the
Ministry of Justice of the Republic of Lithuania;
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Luxembourg
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In accordance with the provisions of Article 16, the
Parquet Gnral is designated as the authority competent to authorize the
diplomatic officers or consular agents of a Contracting State to take,
without compulsion, the evidence of persons other than the nationals of that
State in aid of proceedings commenced in the courts of the State which they
represent. This authorization, which is given in each specific case and to
which specific conditions, where appropriate, are attached, is granted under
the following general conditions:
1. The evidence shall be taken only within the
precincts of an Embassy or Consulate;
2. The Parquet Gnral shall be given reasonable
advance notice of the time, date, and place of the taking of evidence so that
it can, if it wishes, be represented;
3. A request to a person to appear shall, in accordance
with the regulations, be in the form of an official document in French or
German or accompanied by a translation into one of these languages stating:
(a) That the evidence is to be taken in accordance
with the provisions of the Evidence Convention, and in the framework of a
judicial procedure followed in a jurisdiction designated by a Contracting
State;
(b) That the appearance is voluntary and that no
prosecution in the requesting State will result from failure to appear;
(c) That the parties to the action, where
appropriate, consent to the taking of the evidence or are opposed to it for
reasons to be given;
(d) That the person requested to appear may be
legally represented;
(e) That the person requested to appear may invoke a
privilege or a duty to refuse to give evidence.
In accordance with the provisions of Article 17, the
Parquet Gnral is designated as the authority competent to authorize persons
designated in accordance with the regulations as commissioners to take
evidence, without compulsion, in aid of proceedings commenced in the courts
of another Contracting State. This authorization, which is given in the
particular case and to which specific conditions, where appropriate, are
attached, is granted under the following general conditions:
1. The Parquet Gnral shall be given reasonable advance
notice of the time, date and place of the taking of evidence so that it can,
if it wishes, be represented;
2. A request to a person to appear shall, in accordance
with the regulations, be in the form of an official document in French or
German or accompanied by a translation into one of these languages stating:
(a) That the evidence is to be taken in accordance
with the provisions of Evidence Convention, and in the framework of a
judicial procedure followed in a jurisdiction designated by a Contracting
State;
(b) That the appearance is voluntary and that no
prosecution in the requesting State will result from failure to appear;
(c) That the parties to the action, where
appropriate, consent to the taking of the evidence or are opposed to it for
reasons to be given;
(d) That the person requested to appear may be
legally represented;
(e) That the person requested to appear may invoke a
privilege or a duty to refuse to give evidence.
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Macedonia
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The Government of the Republic of Macedonia declares, in
accordance with Article 8, that members of the judicial personnel of the
requesting authority of another Contracting State may be present at the
execution of a Letter of Request, provided they have obtained prior
authorization from courts of first instance of the Republic of Macedonia.
In accordance with Article 23 of the Convention, the
Republic of Macedonia declares that it will not execute Letters of Request
issued for the purpose of obtaining pre-trial discovery of documents as known
in Common Law countries.
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Mexico
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The United Mexican States makes a special and complete
reservation concerning the provisions contained in Articles 17 and 18 of this
Chapter in relation to the "commissioners" and the use of measures
to compulsion by diplomatic officers and consular agents.
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Monaco
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In accordance with Articles 16 and 17, the Directorate
of Judicial Services is designated as a competent authority for the purpose
of authorizing, as appropriate:
the consular authorities of a Contracting State to take
the evidence without compulsion of persons other than nationals of that State
and in aid of proceedings commenced in a court of the State which they
represent, or
persons duly designated as commissioners to take evidence without
compulsion in aid of proceedings commenced in a court of the Contracting
State.
Such authorization, which shall be granted for each
particular case and may contain specific conditions, shall be subject to the
following general conditions:
(a) Evidence shall be taken solely on the premises
of consulates when the latter are situated within the Principality, and in
other cases in the Palais de Justice of Monaco;
(b) The Directorate of Judicial Services shall be
informed of the date and time of the taking of the evidence in time to permit
the Directorate to be represented, and, if necessary, to provide courtroom
accommodation at the Palais de Justice of Monaco;
(c) The persons concerned in the taking of evidence
shall be duly summoned by an official document drawn up in French or
accompanied by a translation in that language; this document shall indicate:
That the taking of the evidence in question is being
conducted in accordance with the provisions of the Hague Convention of 18
March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters,
and that the procedure constitutes part of legal proceedings pursued under
the specially designated jurisdiction of a Contracting State;
That appearance is voluntary and non-appearance would not
entail legal proceedings in the requesting State;
That the person concerned in the taking of evidence may be
represented by a lawyer or defense counsel;
That the parties in the proceedings, should they be
instituted, give their consent, and if not the document shall state the
reasons for their opposition;
That the person concerned in the taking of evidence may
apply to be exempted or barred from testifying.
A copy of the summonses shall be sent to the Directorate
of Judicial Services, which is also to be kept informed of any difficulties
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Netherlands
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Article 16. In the Netherlands, no prior permission is
required for the taking of evidence as provided for in Article 16. Article
17. The permission referred to in Article 17 must be requested from the
President of the District Court in the area in which evidence is to be taken.
If evidence is to be taken from witnesses or experts, the area in question
will be that in which the witnesses, or experts, or the majority of them,
reside. If the President gives permission, he may impose any conditions which
he considers necessary to ensure that the evidence is taken in a proper
manner. He may decide that the evidence should be taken at the court, under
the supervision of a judge designated by him. Permission will only be granted
if the following conditions are met: the witness or expert concerned must
have been duly summoned; the summons must be in Dutch or must be accompanied
by a Dutch translation and must contain:
the facts of the case and a summary of the proceedings in
connection with which the evidence is to be taken, and details of the court
which has requested the evidence;
a statement to the effect that there is no obligation for
the witness or expert to appear, and that if he refuses to appear, to take an
oath, to give his word of honor or to give evidence, he will not incur any
penalty or measure of any kind, either in the Netherlands or in the State
where the proceedings have been instituted;
a statement to the effect that the person concerned may be
legally represented; a statement to the effect that in so far as the person
concerned has a privilege or duty to refuse to give evidence, he may do so; a
statement to the effect that the commissioner will reimburse expenses
incurred by the witness or expert in connection with his appearance to give
evidence.
A copy of the summons must be forwarded to the
President. The request for permission must state the reasons why the taking
of evidence has been entrusted to a commissioner and it must state the
commissioner's official status unless he is a lawyer competent to practice in
the Netherlands. The costs of taking the evidence, i.e. the expenses of the
witnesses, experts or interpreters, must be reimbursed in full. Article 23.
a statement to the effect that in so far as the person concerned has a
privilege or duty to refuse to give evidence, he may do so; a statement to
the effect that the commissioner will reimburse expenses incurred by the
witness or expert in connection with his appearance to give evidence. A copy
of the summons must be forwarded to the President. The request for
permission must state the reasons why the taking of evidence has been
entrusted to a commissioner and it must state the commissioner's official
status unless he is a lawyer competent to practice in the Netherlands. The
costs of taking the evidence, i.e. the expenses of the witnesses, experts or
interpreters, must be reimbursed in full.
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Norway
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By virtue of Article 15, evidence can be taken by
diplomatic officers or consular agents only if, upon application, prior
permission to that effect has been granted.
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Poland
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No declaration or reservation to Chapter II.
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Portugal
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In accordance with Articles 15 of the Convention, the
Portuguese State makes the following declaration:
The Portuguese State declares that the evidence as
referred to in Article 15 can only be taken if permission to that effect is
given by the appropriate authority designated by it upon application made by
the diplomatic or consular agent.
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Romania
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Romania will not apply the provisions of Articles 16,
17, and 18 of Chapter II of the Convention. Romania declares that Articles 19
and 21 will not be applicable; in as far as that they refer to Articles 16,
17, and 18, to which the reservation was made.
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Russian Federation
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No declaration or reservations. No Central Authority
Named.
Depositions Not Permitted (Ask-OCS-L@state.gov)
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Seychelles
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No declarations or reservations regarding Chapter II.
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Singapore
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The whole of Chapter II of the Convention shall not
apply to the Republic of Singapore.
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Slovak Republic
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In connection with Article 18 of the said Convention,
that a diplomatic officer, consular agent or commissioner authorized to take
evidence under Articles 15, 16, and 17, may request the competent Slovak
court or the Slovak State notary to carry out procedural action and that such
a diplomatic officer, consular agent or commissioner will transmit the
dossier to that court or notary through the intermediary of the Minister of
Justice of the Slovak Republic in Bratislava, provided the principle of reciprocity
is applied.
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Slovenia
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No declaration or reservation to Chapter II.
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South Africa
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Excludes the application of the provisions of Articles
15 and 16 of Chapter II of the Convention.
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Spain
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In accordance with Articles 16 and 17, the evidence may
be taken, without prior permission of the Spanish Authority, in the premises
of the diplomatic or consular representation of the requesting State.
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Sri Lanka
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The Government of Sri Lanka, in terms of Article 33,
excludes in whole, the application of the provisions of Chapter II of the
Convention.
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Sweden
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That, in pursuance of Article 15, para. 2, a diplomatic
officer or consular agent may only take evidence if permission to do so has
been granted by the competent Swedish authority.
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Switzerland
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Permission of Swiss Ministry of Justice Required
In accordance with Article 35, Switzerland declares that
evidence may be taken according to Articles 15, 16, and 17 subject to prior
authorization by the Federal Justice and Police Department. A request for
authorization must be addressed to the Central Authority in the canton where
the evidence is to be taken. See Swiss International Mutual Cooperation in
Civil Matters
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Turkey
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The Ministry of Justice has been designated as the
competent authority empowered to grant permission envisaged in Articles 16
and 17.
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Ukraine
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Ukraine excludes the application within its territory of
the provisions of Chapter II of the Convention, except for Articles 15, 20,
21, and 22.
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United
Kingdom
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In accordance with Article 18 Her Majesty's Government
declare that a diplomatic officer, consular agent or commissioner authorized
to take evidence under Articles 15, 16, and 17 may apply to the competent
authority designated hereinbefore for appropriate assistance to obtain such
evidence by compulsion provided that the Contracting State whose diplomatic
officer, consular agent or commissioner makes the application has made a
declaration affording reciprocal facilities under Article 18.
In accordance with Article 27 Her Majesty's Government
declare that by the law and practice of the United Kingdom of the prior
permission referred to in Articles 16 and 17 is not required in respect of
diplomatic officers, consular agents or commissioners of a Contracting State
which does not require permission to be obtained for the purposes of taking
evidence under Articles 16 or 17."
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Venezuela
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"The Republic of Venezuela will not allow
commissioners as provided for in Chapter II of this Convention to act in
obtaining evidence".
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(4) Mutual Legal Assistance in Criminal Matters
Treaties (MLATs) (see 7 FAM 960).
e. Information on the CA Internet, Post and
International Organization Web Pages: CA/OCS/L (Ask-OCS-L@state.gov) maintains
general information brochures about obtaining evidence and country-specific
information brochures about judicial assistance at the Consular Affairs
Internet home page. Posts that conduct many depositions also have information
on post web pages about judicial assistance.
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CA Internet Home Page See:
Travel.state.gov (Law and Policy, Judicial Assistance)
Post Judicial Assistance Home Pages For Example:
U.S. Embassy Tokyo Judicial Assistance Page
U.S. Embassy Bern, Switzerland Judicial Assistance
Page
International Organization Judicial Assistance Home Pages
Hague Conference on Private International Law
EUROPA Judicial Atlas in Civil Matters
EUROPA Judicial Network in Civil and Commercial
Matters
EUROPA Judicial Cooperation Between Member States in
Civil and Commercial Matters
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f. Countries that Prohibit Taking Depositions: If a
consular officer in a country that prohibits taking depositions receives a
court order issued by a Federal court in the United States ordering a consular
officer to participate in taking the deposition of a willing witness, you
should immediately notify CA/OCS/L (Ask-OCS-L@state.gov), which will coordinate
with L/CA in responding to the court order.
g. Oral and Written Depositions: Depositions may be
taken in person (oral depositions) or based on written questions. Procedures
for oral and written depositions are similar. 7 FAM Exhibit 921
provides guidelines in taking depositions at post. Written depositions are
those where counsel are not present, but have provided questions in writing,
which are posed by the consular officer and answered orally by the deponent.
Oral depositions are those where counsel are present and pose the questions
themselves. They are preferred because counsel can adjust questions in light
of the deponents answers. If attorneys agree, the consular officer may
withdraw after the necessary oaths are taken.
h. Scheduling Depositions: A deposition should be
scheduled for a date and time mutually agreeable to the consular officer,
counsel, and witness(es). Depositions may be taken on notice 22 CFR 92.52,
or pursuant to a commission issued a court, 22 CFR 92.53.
i. Arranging for Stenographer, Videographer, or
Interpreter:
(1) While the duties of a consular officer include
contacting the witness(es) and acting as, or retaining, an
interpreter/translator and stenographer, resource constraints generally require
that requesting counsel arrange for the presence or appearance of the witness,
stenographer, and interpreter at the consular section for the taking of the
deposition;
(2) Consular officers assist only as necessary; and
(3) If requesting counsel, citing 22 CFR 92.56, asks
the consular officer to make all such arrangements, point out that the consular
officer has other statutory duties that must take precedence. In addition, the
consular officer is responsible for emergency services. Consequently,
arrangements for the logistics of a deposition may take the consular officer
more time than it would to request counsel.
j. Consular Officers Administering Oaths and
Withdrawing Subject to Recall: The consular officer administers the oaths to
the witness(es), the stenographer or video operator and, if present, the
interpreter or translator. After the oaths have been taken, the consular
officer must ensure that any withdrawal or objection is recorded, noting the
agreement of the attorneys and whether the officer was subject to recall. The
names of all persons present should also be included in the record.
k. Instructing the Stenographer or Video Operator: The
consular officer must ensure that the stenographer or video operator is
instructed by the parties counsel to transcribe the proceedings verbatim and
to give the transcript to the witnesses for correction and signature. Counsel
can waive this requirement by mutual consent in certain cases.
l. Transcript: When the transcript has been made, the
stenographer must execute before the consular officer an affidavit certifying
that the record in the matter is a true and accurate transcription from notes
made by the stenographer. This affidavit must give the date on which the notes
were taken and indicate whether the transcribed testimony was given to the
witnesses for correction, and, if so, whether any changes were made and in what
manner. It must be attached to the testimony.
m. Consular Closing Certificate: The consular officer
must also prepare a certification indicating that the witnesses (listed by
name) were duly sworn by the consular officer and that, in accordance with an
agreement of the parties, the officer withdrew, subject to recall, as reflected
in the attached notice of commission. This certification must also refer to the
stenographers affidavit of accuracy (see section 7 FAM 925.1
e).
n. Consular Fees: Consular officers must charge the
current fees for administering each oath, for handling and returning the
deposition, and for performing any other services for which fees are
customarily charged. (See Schedule of Fees, 22 CFR 22.1.) Bear in mind that:
(1) Scheduling Fee and Deposit for Deposition Fees: A
minimum deposit specified in 22 CFR 22.1 must be paid to the Embassy or
Consulate before a deposition can be scheduled. If the consular officer
believes the fees will far exceed the minimum deposit, a larger deposit should
be requested. The fee should be in the form of a certified check or money
order payable to the post concerned. It is used to cover consular officer and
staff time in scheduling the deposition, and is not refundable if the
deposition is canceled. If rescheduled, another deposit should be collected.
Submit the deposit to the posts class B cashier for placement in a post SDA
(Suspense Deposit Abroad 19x6809) account, to be drawn upon for deposition fees
as required;
(2) Payment of Fees: Payment in full should be
received prior to the departure of the attorneys. Exception: if large sums of
money are necessary, a written acknowledgment for the debt should be executed
by the requesting counsel in the form of an affidavit; and
(3) Fees for Services Outside Consular Premises or
After Hours: If depositions are taken outside consular premises at some
distance, or after working hours, charge appropriate fees for consular
transportation costs. (See Schedule of Fees, 22 CFR 22.1.)
o. Post Role Regarding Interpreting or Translating:
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NOTE: The consular officer, as a rule, may not serve as
interpreter or translator. While 22 CFR 92.56 states that consular officers
may act as interpreters/translators, few officers are fluent enough in
technical aspects of languages to do so.
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(1) When necessary and practicable, the officer may
see to it that a qualified interpreter is engaged;
(2) Counsel must agree about the fees appropriate for
such private persons and should pay for the services;
(3) If a U.S. Government agency requests retention of
such services, it should furnish a Federal appropriation number and fund code;
and
(4) If no qualified interpreter or translator is
available in the host country, the witness being deposed must have the
questions posed and the responses translated by a competent person engaged
outside the host country by the requesting counsel. In the case of written
interrogatories, the questions must always be submitted both in English and in
translation in the native language of the deponent. The deponent(s) may record
responses in writing in their native language. Funds for translating the
questions and the deponents responses into English must be provided by the
requesting party.
p. Stenographer or Video Operator: Requesting parties
often bring a stenographer or video operator from the United States in oral
deposition proceedings. In the case of written interrogatories, if no
stenographer is available locally, the witnesses may write out their own
responses. If appropriate, a Foreign Service national employee or Foreign
Service secretary may act as stenographer, charging fees set forth in 22 CFR
22.1.
q. Oaths to be used by Consular Officers in Taking
Depositions: The consular officer should administer oaths with the appropriate
solemnity.
(1) Oath for Witnesses;
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Do you solemnly swear (or affirm) that you will tell
the truth, the whole truth, and nothing but the truth, in answer to the
several questions now to be put to you?
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(2) Oath for Stenographer, Court Reporter or Video
Recorder Operator; and
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Do you solemnly swear (or affirm) that you know the
English and (name of appropriate language) languages and that you will truly
and impartially reduce to writing or (take down notes and faithfully
transcribe, video record) the questions to be asked of the witness and the
testimony of (witness name), a witness now to be examined?
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(3) Oath for Interpreter or Translator:
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Do you solemnly swear (or affirm) that you know the
English and (name of) languages and that you will truly and impartially
interpret (or translate) the oath to be administered and questions to be
asked of (name of witness), a witness, now to be examined, out of the English
into the (name of) language, and that you will truly and impartially
interpret (or translate) the answers of (name of witness) out of the (name
of) language, into the English language?
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r. Deportment of Legal Counsel Participating in Depositions:
(1) Counsel for the party requesting an oral
deposition has the right to conduct a direct examination of the witness without
interruption, except in the form of objection by the opposing counsel;
(2) The opposing counsel has the same right on
cross-examination;
(3) Cross-examination may be followed by re-direct and
re-cross-examination until the interrogation is completed; and
(4) The consular officer should try to restrain
counsel from indulging in lengthy conversations among themselves, digressions
from the principal line of argument, or asides, and attempts to mislead the
witness. Some witnesses may wish to be accompanied by an attorney to protect
their interests.
s. Objections: The consular officer has no authority
to sustain or overrule objections but should ensure that they are recorded, as
provided in section 7 FAM 922.
7 FAM 922 PROCEDURES FOR WRITTEN
EXAMINATION OF WITNESSES
(CT:CON-130; 03-22-2006)
a. While written depositions are now only rarely taken
by consular officers, it remains important to follow carefully procedures in
obtaining testimony (see 22 CFR 92.58). When a witness does not understand the
meaning of a question, the consular officer should explain it, if possible,
taking special care to elicit an answer strictly responsive to the question.
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NOTE: While 22 CFR uses the term interrogatories, the
Federal Rules of Civil Procedure has been changed to use the term
questions. This subchapter reflects the change, which is more easily
understood by witnesses.
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b. Do not give the witness a copy of the questions, or
allow the witness to examine them, before the questioning. It may be necessary
for the officer to indicate the general nature of the evidence being sought,
but the officer should not give this information in sufficient detail to permit
the witness to formulate answers in advance.
c. The written questions should not be repeated in the
record, but references to them should be made as follows:
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To the first question, the witness responded that. . . .
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d. All written questions must be put to the witness,
even if the witness disclaims further knowledge of the subject.
e. When counsel for all the parties attend an
examination conducted on written questions, the consular officer may, if
counsel consents, permit oral examination of the witness following the
examination on written questions. The oral examination should be conducted in
the manner and order as if no written examination had preceded it.
f. To refresh a faded memory, permit a witness to
refer to notes, papers, or other documents. Such occurrences must be noted in
the record of the testimony. (See 22 CFR 92.60(b)).
g. When a witness confers with the accompanying
attorney before answering an interrogatory, the consular officer should also
include that fact in the record. (See 22 CFR 92.60 (c)).
h. The consular officer should request the witness not
to leave the officers presence or the presence of the counsel asking the
questions during the examination, except during recesses for meals, rest, and
similar purposes. Note in the record failure of the witness to comply with
this request.
i. If examination of a witness requires several hours
or days, permit recesses for reasonable periods and for sufficient reasons.
j. The consular officer must mark, by exhibit numbers
or letters; all documents identified by a witness or counsel and submitted for
the record.
7 FAM 923 ROLE OF U.S.
JUDGES
(CT:CON-130; 03-22-2006)
a. Judges from U.S. Federal, State, or local courts,
including administrative law judges, should not perform official functions in
foreign countries without the express consent of host country authorities. Such
actions may violate the judicial sovereignty of the host country.
b. Judges occasionally attempt to hold court in U.S.
embassies and consulates during the taking of depositions. Consular officers
should report such incidents to the Department (CA/OCS).
c. In March 1978 the Judicial Conference of the United
States, Committee on Court Administration, disapproved, as a matter of policy,
the practice of Federal judges traveling abroad to take testimony or
depositions in cases pending before them. (See 7 FAM 942.)
7 FAM 924 ROLE OF SPECIAL MASTERS
(CT:CON-130; 03-22-2006)
a. A Special Master is an officer appointed by a court
to act as its representative in some limited or specific legal function.
Federal Special Masters are appointed pursuant to Rule 53 of the Federal Rules
of Civil Procedure. Like judges of U.S. Courts, Special Masters should not
perform official functions in foreign countries without host country consent.
b. The use of Masters is to aid judges in performance
of special duties as they may arise in a case. Their appointment and activities
are only for the purpose of assisting the court to get at the facts in cases of
complicated litigation, usually where special knowledge or expertise is
required.
c. The word Master includes a referee, an auditor, a
commissioner, and an assessor. Participation of a Special Master in depositions
in complicated matters can be very helpful to consular officers who generally
are not attorneys and who do not have expertise in the subject matter of the
deposition.
d. When a Special Master participates in a deposition,
the consular officer should instruct the court reporter/stenographer to include
in the record any objection the participants may have to any of the actions of
the Master.
7 FAM 925 PREPARATION OF THE RECORD
7 FAM 925.1 Transcription and
Signing of the Record
(CT:CON-130; 03-22-2006)
a. Stenographer, Court Reporter, Or Transcription by
Non-Stenographic Means: Depositions are usually recorded by a stenographer or
court reporter, but other means, such as tape recording or videotaping, may be
used. For information about how to prepare the record in such cases, see 7 FAM 926.3 e,
22 CFR 92.61, and 22 CFR 92.62.
b. Transcript: After examination of a witness is
completed, the stenographic record of the deposition must be fully transcribed,
and the transcript attached securely to any document or documents to which the
testimony in the record pertains.
c. Review of Transcript by Witness: The transcription
must then be submitted to the witness for examination by and read to or by the
witness, unless the examination and reading are waived by the witness. Any
changes in form desired by the witness must be entered on the record, at the
end of the record of the deposition, by the consular officer, with a statement
of the reasons given by the witness for the changes. No substantive changes
can be made, but additions or clarifications may be added. The deponent,
however, may provide a statement correcting previous testimony, or otherwise
protect against a charge of perjury.
d. Witness Signature: The witness must then sign the
transcript and initial in the margin each correction made at the witnesss request.
Since the witness may depart before the transcript is completed, the consular
officer should request counsel to send the original transcript to the witness
with instructions to return it to the consular officer in person to sign it.
e. Stenographer, Video Operator and Interpreter
Signature: The stenographer or video operator and interpreter must execute
affidavits certifying the accuracy of their work. (See 7 FAM Exhibit
925.1e).
f. U.S. State Requirements: Some U.S. states require
the witness and the officer taking the deposition to sign each page. Do so
only on the explicit instructions of the requesting counsel. See the sample
record of a deposition in 7 FAM Exhibit
925.1f.
g. Fees: Charge appropriate fees (see 22 CFR 22.1) and
note them on the statement of account. For a sample statement, (see 7 FAM Exhibit
925.1g).
h. Consular Closing Certificate: The consular officer
should prepare a closing certificate of the deposition (see 7 FAM Exhibit
925.1h and 22 CFR 92.62).
7 FAM 925.2 Arrangement of Papers
(CT:CON-130; 03-22-2006)
a. Unless special instructions to the contrary are
received, arrange the papers forming the completed record of the deposition in
the following order from the bottom of the packet to the top:
(1) Commission to take depositions (or notice of
taking depositions), with written questions, if any, exhibits, and other
supporting documents fastened to it;
(2) Statement of fees charged;
(3) Transcript of the deposition of the various
witnesses, including any exhibits the witnesses may have submitted;
(4) Stenographer/interpreter affidavits; and
(5) Closing certificate (see 7 FAM Exhibit
925.1h, 22 CFR 92.63.)
b. Fasten all the above papers together, and affix the
consular officers seal to the closing certificate. Use ribbons and wafer
seals only if requested.
7 FAM 925.3 Filing of Depositions
(CT:CON-130; 03-22-2006)
a. Place the above papers in an envelope and seal it
with the wax engraving seal of the post or rubber stamp seal with the signature
of the consular officer across the envelope flap. The envelope must be endorsed
with the title of the action and marked and addressed to the clerk of the
court. Do not mail the documents directly to the court unless specifically
instructed by participating counsel to do so.
b. Send the sealed envelope by registered mail to the
counsel for the party that asked for the deposition unless the consular officer
is instructed by counsel to send it to the court where the action is pending.
If returned to the court, the envelope must indicate the title of the action.
(See 7 FAM
Exhibit 925.3). When the action is a Federal criminal case, send it to the
Department (CA/OCS) for onward transmission or directly to the U.S. Department
of Justice, Federal Prosecutor, or defense counsel, when instructed to do so.
c. Requesting counsel will often request that you
transmit the documents by commercial express courier service, for which
requesting counsel bears the costs. If international registered mail is
unreliable in the host country, return depositions by pouch through the
Department (CA/OCS) for relay to the court. Registered APO mail may also be
used.
d. See 22 CFR 92.64.
7 FAM 925.4 Furnishing Copies
(CT:CON-130; 03-22-2006)
a. The consular officer may provide a copy of a
deposition to the deponent or to any party to the action upon payment of the
copying fees. Such copies may also be presented to the parties of action
directly by the stenographer employed by counsel. If State rules require
depositions to be sent to requesting counsel, comply with such a request. (See
22 CFR 92.64).
b. If a deponent desires certification under official
seal that the copy is a true copy, also charge the certification fee prescribed
in the Schedule of Fees (see 22 CFR 22.1).
7 FAM 926 MODERN PROCEDURES FOR RECORDING
AND TAKING DEPOSITIONS
7 FAM 926.1 Impact of Advancing
Technologies
(CT:CON-449; 03-25-2013)
The growing trend toward the use of telephones, videotape,
video teleconference, tape recording and other more sophisticated (High Tech)
means of obtaining evidence abroad compels the consular officer to observe
carefully the pertinent legal procedures, if any, of the host country.
Obtaining evidence under certain circumstances may place additional burdens on
the consular officers time, especially when arrangements must be made for the
use of dedicated international telephone lines and special telephone conference
systems. When in doubt about recording or taking testimony under unusual
circumstances, consult CA/OCS/L (Ask-OCS-L@state.gov).
7 FAM 926.2 Taking Depositions by
Telephone
(CT:CON-130; 03-22-2006)
a. Rule 30(b)(7) of the Federal Rules of Civil
Procedure states that:
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The parties may stipulate in writing or the court may
upon motion order that a deposition be taken by telephone or other remote
electronic means. For the purposes of this rule and Rules 28(a), 37(a)(1),
and 37(b)(1) (of the Federal Rules of Civil Procedure), a deposition taken by
such means is taken in the district and at the place where the deponent is to
answer questions.
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b. Consular officers may be called upon to administer
oaths to witnesses, generally on consular premises, who will then be deposed by
telephone from the United States. Charge only the fee for administering oaths,
since the requesting counsel will ask the questions by telephone and responses
will be recorded in the United States by stenographic or other means.
7 FAM 926.3 Recording Depositions
by Nonstenographic Means
(CT:CON-130; 03-22-2006)
a. Rule 30(b)(4) of the Federal Rules of Civil
Procedure states that:
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Unless otherwise agreed by the parties, a deposition
shall be conducted before an officer appointed or designated under Rule 28
and shall begin with a statement on the record by the officer that includes
(A) the officer's name and business address; (B) the date, time and place of
the deposition; (C) the name of the deponent; (D) the administration of the
oath or affirmation to the deponent; and (E) an identification of all persons
present. If the deposition is recorded other than stenographically, the
officer shall repeat items (A) through (C) at the beginning of each unit of
recorded tape or other recording medium. The appearance or demeanor of
deponents or attorneys shall not be distorted through camera or
sound-recording techniques. At the end of the deposition, the officer shall
state on the record that the deposition is complete and shall set forth any
stipulations made by counsel concerning the custody of the transcript or
recording and the exhibits, or concerning other pertinent matters.
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b. At present, the non-stenographic means referred to
in Rule 30(b)(4) of the Federal Rules of Civil Procedure are tape recording and
videotaping. The consular officer should amend the wording of the certification
to state the means used to record the deposition. 7 FAM Exhibit
926.3 provides guidelines on recording depositions by a non-stenographic
method (tape recording, video teleconference, etc.).
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See
ABA E Technology Report Trends in the Electronic
Courtroom
ABA GPSOLO Practice Management Technology
Courtroom 21 Project
National Center for State Courts (NCSC); NCSC
Technology
Administrative Office of U.S. Courts Pacer Service
Center
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c. Counsel is responsible for providing the tape
recording and videotape equipment. Embassy equipment, when available, may be used
to make a duplicate recording of the deposition but advise counsel that the
consular officer will assume no responsibility for the quality of the
recording.
d. Transporting electronic equipment of the kinds used
in recording depositions is not permissible in some foreign jurisdictions. Be
prepared to advise requesting counsel of the possibility that the host country
government may confiscate the equipment or otherwise require its pre-clearance
into the host country.
e. In filing depositions executed by non-stenographic
means, the consular officer should prepare written certification about both the
administration of an oath to the witness and the video camera operator or
operator of the recording device. Attach the certification to the videotape or
tape recording, place it in an envelope, and seal it similar to the sealing of
a deposition. (See 7 FAM 925.2
b.) Then send it to counsel or the court of pending action.
7 FAM 927 LIVE VIDEOCONFERENCE
COURTROOM TESTIMONY
(CT:CON-449; 03-25-2013)
In recent years, posts abroad have been called upon to
participate in live videoconference testimony directly to a courtroom in the
United States. Such requests should be coordinated with CA/OCS/ACS, CA/OCS/L
and L/CA. The use of this procedure is dependent on the laws of the host
country regarding the taking of testimony. If a Federal court in the United
States orders a post to participate in such a proceeding, post should notify
CA/OCS/L (Ask-OCS-L@state.gov) immediately. CA/OCS/L will coordinate with L/CA
in responding to the court.
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See
U.S. v. Anita Yates, Anton F. Pusztal, U.S.
Court of Appeals for the Eleventh Circuit, No. 02-13654, D.C. Docket No.
00-00109-CR-N-2, November 24, 2004. (Taking testimony by video
teleconference from Australia.) The Court of Appeals concluded that the
testimony violated the Defendants Sixth Amendment right to confrontation,
and remanded the case for a new trial.
United States v. Nippon Paper Industries, Co., Ltd.,
Order (D. Mass., July 28, 1998); Order July 28, 1998
The U.S. District Court for the District of
Massachusetts has allowed the use of video teleconferencing to take the
testimony of a prosecution witness located in Japan. The case involved
a criminal antitrust action against several Japanese paper companies accused
of attempting to fix prices of thermal fax paper sold in the United States.
In granting the government's motion to allow the use of
vide teleconferencing, the Court drew from precedent associated with
videotaped testimony under Federal Rule of Criminal Procedure 15, which
allows deposition of a witness by videotape under "exceptional
circumstances." The Court noted that one of the main constraints on the
use of videotape has traditionally been its incompatibility with the Sixth
Amendment's Confrontation Clause, which guarantees the right of the accused,
"in all criminal prosecutions ... to be confronted with the witnesses
against him." An important part of this confrontation is the
opportunity for the jury to evaluate a witness's demeanor first hand.
The court found that simultaneous video teleconferencing avoided many of
these problems, since it allows real-time questioning and cross-examination
of a witness in a formal trial setting in the presence of the judge, jury,
and counsel.
Despite objections by the defendant, the court in this
instance did not take the teleconference testimony in the presence of the
jury. Citing time differences and concerns over the witness's poor
health, Judge Gertner ordered that the teleconference testimony be recorded
and replayed for the jury the following day. She ruled that the defendant,
having "waived the principle components of its Confrontation Clause
rights by agreeing to the appearance of the witness through a video screen
... had also waived his right to confront the accuser in 'real time.'"
Judge Gertner cautioned, however, that although the
demands for the use of video teleconferencing in international litigation are
likely to increase, the loss of the immediacy of face-to-face contact between
the witness and the others present in the courtroom still argues for limiting
its use.
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7 FAM 928 THROUGH 929 UNASSIGNED
7 FAM Exhibit 921
GUIDELINES FOR TAKING DEPOSITIONS
(CT:CON-130; 03-22-2006)
THINGS TO REMEMBER CONCERNING THE SCHEDULING OF A DEPOSTION:
1. Are depositions permitted by host country law? If so,
is notification to the Foreign Ministry required?
2. Is the requesting attorney an official of U.S. State,
local or Federal government? If so, obtain host
country clearance from the Foreign Ministry as appropriate.
3. Is the witness willing to be deposed?
4. Will the deposition be done with oral or written
questions?
5. What date is proposed for taking the deposition? Is
the date compatible with the consular officers schedule?
6. How many people will be attending the deposition?
7. Will the deposition take place on consular premises?
If so schedule the use of a room large enough to accommodate the deposition.
8. Will a consular officer be needed to administer oaths
to witnesses and others? Will the officers presence be required throughout the
proceeding or can the officer withdraw after administering the oaths, subject
to recall?
9. Will the services of a stenographer or
interpreter/translator be required? Are such services available in the host
country or must they be retained in the United States?
10. Is the evidence to be obtained using non-stenographic
means, such as telephone, videotape, or more advanced technology? Is so, obtain
host country authority, if appropriate.
11. Who will arrange for the witness, stenographer, and
interpreter to meet counsel at the post at a designated hour? (Preferably
requesting counsel.)
12. Who is paying for the deposition? Obtain a deposit or
Federal appropriation number and fund code.
THINGS TO REMEMBER CONDUCTING THE DEPOSITION:
1. Administer oaths to stenographer,
interpreter/translator, and witness as appropriate.
2. Consular officer withdraws, if appropriate, after
instructing stenographer to record departure, enumerate names of those present,
transcribe proceedings, and give transcript to the witness for review.
3. Stenographer and interpreter/translator execute
affidavits of accuracy before consular officer.
4. Witness signs record of deposition before consular
officer.
5. At close of deposition consular officer prepares final
statement of account and closing certificate.
6. Consular officer collects fees required under the
Schedule of Fees for Consular Services (22 CFR 22.1).
7. Deposition documents are arranged and fastened
together.
8. Deposition is placed in a sealed envelope correctly
endorsed and addressed, bearing the post's seal, and is registered if mailed.