In modern litigation, critical witnesses are increasingly located outside the United States. Whether in international business disputes, probate litigation, commercial lawsuits, or cross-border contract matters, parties often need testimony or documents from nonparty witnesses residing abroad.
Unlike domestic discovery, obtaining evidence from a foreign country can involve international treaties, diplomatic procedures, foreign courts, and strict compliance with another nation’s laws. Attorneys and litigants who fail to follow the proper procedures may face substantial delays—or may be unable to use the evidence altogether.
Below is an overview of the primary methods available for taking the deposition of a nonparty witness located in a foreign country.
1. The Hague Evidence Convention
The Hague Evidence Convention is an international agreement joined by more than 70 countries, including the United States and the United Kingdom. The Convention was designed to assist courts in obtaining evidence located in another country for use in civil or commercial proceedings.
The Convention provides two principal methods for obtaining evidence abroad:
- Letters of Request; and
- Diplomatic or Consular Agents and Commissioners.
(a) Letters of Request
Under the Hague Evidence Convention, requests for evidence must proceed through a designated “Central Authority” in each participating country. In the United States, the Department of Justice serves as the designated authority.
The process generally begins with a motion filed in the domestic court seeking international judicial assistance. If the court grants the request, the materials are transmitted to the foreign country’s Central Authority, which then forwards the request to the appropriate foreign court.
The foreign court gathers the evidence using its own local laws and procedures. Depending on the jurisdiction, this may include taking testimony, compelling the production of documents, or administering oaths.
Because foreign courts apply their own procedural rules, the process may differ significantly from traditional U.S. discovery practice. In many instances, parties should anticipate longer timelines, translation requirements, and procedural limitations on the scope of discovery.
(b) Diplomatic or Consular Agents and Commissioners
The Hague Evidence Convention also allows evidence to be obtained through diplomatic officers, consular agents, or appointed commissioners.
This method permits diplomats or commissioners to collect evidence directly. However, it is only available if the requested country authorizes the procedure. Some countries opt out of this method entirely, while others impose substantial restrictions.
Authorized officials may take testimony and administer oaths, but they must comply with local laws and may need assistance from local courts when conducting the proceeding.
Because each country adopts its own reservations and declarations under the Convention, counsel should carefully review the foreign jurisdiction’s rules before proceeding.
2. Letters Rogatory
Letters rogatory are formal requests issued by a court in one country to a court in a foreign country requesting the performance of a judicial act.
Such judicial acts may include:
- Taking testimony from a witness located abroad;
- Obtaining documentary evidence; or
- Serving process on an individual or corporation within the foreign jurisdiction.
Unlike procedures governed by the Hague Evidence Convention, compliance with letters rogatory is generally not mandatory and instead is based upon principles of international comity.
The process typically begins with an attorney drafting a proposed letter to the forum court. The U.S. Department of State provides guidance regarding the required contents and formatting of such requests.
The letter generally must:
- Be signed by the judge;
- Be translated into the appropriate language; and
- Be authenticated pursuant to diplomatic requirements.
Once completed, the request is submitted to the U.S. Department of State, which transmits the materials through diplomatic channels to the relevant court or authority in the requested country.
Because letters rogatory involve international diplomatic procedures, the process can be time-consuming and expensive. Execution of the request may take several months—or longer depending on the foreign jurisdiction.
3. Voluntary Cooperation of the Foreign Witness
If formal treaty procedures or letters rogatory are unavailable or impractical, parties may still attempt to obtain testimony through the voluntary cooperation of the foreign witness.
This option can sometimes provide the fastest and most cost-effective solution. However, relying on voluntary cooperation carries substantial risk.
A witness may withdraw cooperation shortly before the deposition or trial, potentially causing delays and additional expense to the client.
In addition, certain countries impose strict formal requirements even for voluntary depositions. These requirements may include:
- Mandatory notice to a central judicial authority;
- Restrictions on who may conduct the deposition;
- Limitations on administering oaths; or
- Requirements that depositions occur only in designated locations such as embassies or consulates.
Failure to comply with the foreign country’s procedural rules may result in the testimony being deemed invalid or may expose participants to legal consequences under local law.
Important Practical Considerations
When seeking testimony from a foreign witness, attorneys should evaluate several important issues early in the litigation process, including:
- Whether the country is a signatory to the Hague Evidence Convention;
- The country’s specific reservations or restrictions under the Convention;
- Translation and authentication requirements;
- Expected timelines and costs;
- Whether local counsel should be retained; and
- Whether voluntary cooperation is realistic and dependable.
International discovery frequently requires coordination among domestic counsel, foreign counsel, courts, and governmental authorities. Careful planning is therefore essential to avoid unnecessary delay and expense.
Conclusion
Obtaining testimony or evidence from a nonparty witness located in a foreign country can be significantly more complicated than domestic discovery. Depending on the jurisdiction involved, litigants may need to proceed through the Hague Evidence Convention, letters rogatory, or voluntary witness cooperation.
Each method involves unique procedural requirements, strategic considerations, and potential risks. Understanding these mechanisms early in the litigation process can help parties efficiently secure critical evidence while minimizing delays, costs, and procedural challenges.