Depositions in a Foreign Country (such as Canada or Mexico)

Like it or not, globalization is here. With globalization of the economy comes the interaction of foreign nationals as witnesses, plaintiffs and defendants. At one time, interstate travel by foreign companies was more regulated. Not so much any more.

Because we defend companies traveling in interstate commerce, it is not uncommon to deal with foreign nationals, particularly as defendants. However, foreigners from Mexico driving throughout the United States is quite common, and even if they are here illegally, they may file a petition for damages.

I have defended cases in which plaintiffs were from Mexico (illegally in the United States) and cases in which defendant drivers (here legally) were from Canada. Even though our firm is small, it is apparent that we must address international concerns. This may be common to attorneys directly bordering Mexico or Canada, but it is becoming more and more routine for attorneys who don’t border a foreign country.

Handling a case in which some witnesses and physical evidence are located abroad, counsel must consider carefully all the available options for obtaining the evidence necessary for the disposition of a case.

If a party to the action is domiciled abroad (and the party is unwilling to travel to the United States) or if the transactions at issue occurred in a foreign country, seeking evidence abroad may be unavoidable. ,

Once it is determined that taking depositions abroad is essential, counsel should first determine if the foreign nation in which the witness is located is a member of the Hague Convention on Taking Evidence Abroad on Civil or Commercial Matters, on notice and commission before consuls and court-appointed commissioners and streamlines procedures for compulsion of evidence when the witness refuses to appear. If the foreign nation is a signatory, counsel has the option of using one of the methods provided by the Hague Evidence Convention or other permissible methods.

Member nations include Australia, France, Germany, Israel, Mexico, the United Kingdom, and the United States. Even though Mexico is a member of the Hague, I have run into problems with getting court reporters; therefore, you may need to have the court report go with you or have the court reporter participate by phone.

The remainder of this blog will refer to taking depositions in Canada, but you could probaly apply the same rules to other nations who are members of the Hague (except for China and Mexico).

American counsel is able to conduct depositions of willing witnesses by * stipulation of the parties, without involvement of a U. S. Consular officer, if the foreign country permits deposition under such circumstances. Since Canada does permit it, we are able to take the deposition of Mr. Multani as a willing witness, as long as we execute a stipulation with him denoting the time, place and manner of the deposition.

* If you would like a copy of the proposed stipulation, please contact my office at 318-222-2426 or via e-mail at perkins@perkinsfirm.com and we will forward a form to you.

Parties in a private civil case in the U.S. may arrange to depose a willing witness in Canada without prior consultation with or permission from Canadian federal or provincial authorities.

If you want to have the witness sworn by the Consulate prior to the deposition, or you otherwise want the deposition to take place before a U.S. Consular (or court-appointed commissioner), then you must make an appointment to have such take place at the U.S. Embassy or Consulate office.

If the witness is not a willing witness, then federal and Canadian law denote the following procedure:

Draft letters rogatory/letter of request from the court before which this matter is pending to the Canadian court in the jurisdiction where the witness resides;

Execute the letters rogatory/letter of request pursuant to the Canada Evidence Act and/or the provincial Evidence Act in civil matters (for example, the Evidence Act of Ontario), if there is one;

The letters should constitute a formal request from a U.S. Court to a Canadian Court;

Discovery must not violate the laws of civil procedure of the Canadian Court;

U.S. Court must have the power under its enabling statutes and rules to direct the taking of evidence abroad;

Witnesses must reside in the Canadian court’s jurisdiction;

The order sought must be necessary in the interests of justice;

Compliance with the order must not place the witness in a position of having to commit an offense;

The documents in support of such application must be under seal of the issuing court or judge

The witness must not be required to undergo a broader form of inquiry than he would if the litigation were conducted locally;

The evidence sought cannot be secured except by the intervention of the Canadian court.

Obtain the services of a Canadian lawyer to make application under the appropriate Evidence Act to the competent court to allow establishment of the proceedings requested in the letters rogatory/letter of request;

The Canadian counsel or a separate third party will be appointed as commissioner to handle the proceedings and issue the order. The commissioner may enforce his orders in the same manner as those of the court or judge who authorizes the taking of evidence.

　
Service on an Unwilling Witness:

Proper service of the initial subpoena (and Order for Letters Rogatory, if necessary) may be made in any one of the following ways:

(1) Forwarding duplicate sets of the documents in English (and a French translation in Quebec) to the sheriff in the judicial district wherethe witness resides

(2) Licensed process server and, if necessary, private tracing service;

(3) International registered mail;

(4) Service pursuant to the Hague Convention of 1965 (cost of $50.00 Canadian), which requires:

(A) Submit a request to the designated Central Authority for the witness’s jurisdiction on Form USM-94, Request for Service Abroad of Judicial and Extra-Judicial Documents;

(B) Submit duplicates of form and documents to be served to Central Authority for jurisdiction or Federal Central Authority (who will transmit them to proper jurisdictional authority);

(C) Central Authority transmits request and documents to competent authorities who serve the documents;

(D) After effecting service, the authorities complete the Certificate of Service that appears on the reverse side of the USM-94 form and return it with one copy of the served documents to the requester;

(E) Requester also has the option to have Central Authority to effect service by certified mail in Alberta and New Brunswick, and by any form of mail in Ontario.

(5) Service of letters rogatory may also be made by diplomatic channels, by submitting the letters rogatory and accompanying documents to the Office of American Citizen Services in Washington, D.C. or to the U.S. Embassy in Canada ($650.00 fee to the Consular applies, and additional foreign authority fees may also apply). There are multiple fees for multiple requests.

I hope this gives you some practical insight on how to depose a witness (willing or unwilling) in a foreign country, particularly in Mexico or Canada.

If you have some practical ideas, please share your thoughts.

Although China is a member of the Hague Evidence Convention, it does not recognize the right of persons to take depositions. I have learned that any effort to do so could result in the arrest or detention of American participants. Allthough requests to compel the testimony may be made to the Chinese Central Authority with a letter rogatory or letter of request, such requests have not been very successful.