Conducting Depositions Abroad
National Border Law Conference
January 29, 2015
JESSICA STENDER, Legal Director
[email protected]
www.cdmigrante.org
ABOUT CDM
•  Founded in 2005, Centro de los Derechos del Migrante,
Inc. (CDM) is the first transnational legal services
organization based in Mexico.
•  CDM is dedicated to improving recruitment and
employment conditions and promoting access to justice
for Mexican low-wage migrants to the U.S.
•  With offices on both sides of the U.S.-Mexico border,
CDM has developed an innovative approach to legal
advocacy and organizing that engages workers both in
their communities of origin and while they are employed
in the U.S.
ABOUT CDM: Program Areas
•  Outreach, Education, and Leadership Development
•  Intake, Evaluation and Referral Services
•  Litigation Support and Direct Representation
•  Policy Advocacy
•  Special Initiatives
•  Justice in Recruitment Project
Outreach: Community Workshops
Intake, Evaluation and Referral Services
•  Refer clients to U.S. attorneys: •  Wage and Hour •  Employment Discrimination •  Workers’ Compensation •  Immigration •  Join CDM’s Referral Network •  Email: [email protected] Litigation Support
•  Assist U.S.-based attorneys with Mexico-based
clients:
•  Locate and communicate with workers in
Mexico
•  Send and receive documents
•  Assist clients in applying for immigration relief
to enter U.S. for hearings and other proceedings
•  Class action settlement administration
•  Facilitate transnational discovery
•  Notarize documents
•  Facilitate remote depositions
Bansefi Funds Transfer Mechanism
•  CDM facilitates transfers of settlement funds to
clients in Mexico
•  Clients do not need to have a bank account
•  Clients must show photo ID and provide PIN
•  Transfers can be made to individuals or large
groups
Policy Advocacy
•  Provide policy analysis and recommendations to
U.S. and Mexican policymakers and worker
advocacy groups;
•  Bring migrant voices to key policy forums;
•  Produce investigative reports on recruitment
and workplace conditions of migrants
Special Initiatives
•  Justice in Recruitment Project
•  Investigate and uncover the actors and
processes in low-wage labor recruitment
•  Work with allies and government agencies to
address systemic abuses in international
labor recruitment and U.S. employment
•  www.contratados.org
•  Building Worker Power and transparency
in labor recruitment
Conducting Depositions Abroad:
Initial Considerations
Initial Considerations
•  Before filing lawsuit, consider whether client,
other parties, or non-party witnesses might be
outside of the U.S. during litigation.
•  Discuss with clients any plans to leave U.S. and
importance of maintaining contact.
•  Obtain at least 2 phone numbers in U.S. and
in home country.
Initial Considerations
•  Consider taking deposition before lawsuit is
filed if client’s departure is imminent (e.g. in
removal proceedings).
•  FRCP 27(a): Petition by prospective party to
perpetuate testimony before action is filed to
prevent “failure or delay of justice.”
•  Consider videotaping deposition for possible
use at trial: FRCP 32(a)4)
Rule 26 Conference
•  It is generally advisable to discuss with
opposing counsel during Rule 26 conference:
•  Locations of plaintiff(s) and potential
witnesses;
•  Options for meeting discovery needs;
•  Plan for litigation costs.
The Hague Convention
•  Establishes procedures for obtaining evidence
outside of country where a case is pending.
•  Not mandatory; permissive supplement to
FRCP.
•  Article 1: “letters of request.”
•  Can be useful when seeking to depose
hostile non-party witness not subject to
U.S. court’s jurisdiction.
•  Can be time consuming and expensive.
Taking Depositions Abroad: By Stipulation
•  FRCP 30(b)(4)
•  Parties may stipulate - or the
court may on motion order - that
a deposition be taken by
telephone or other remote
means.
Plaintiff Client Noticed for Deposition: Returning to U.S.
•  Potential immigration barriers to return to U.S.
•  Even if no admissibility bars exist, obtaining a
visa or humanitarian parole can be expensive
and time-consuming
•  Attorney should understand procedures in
order to discuss with opposing counsel or in
motions filed with the court.
Plaintiff Client Noticed for Deposition
•  General presumption: Plaintiff will be
deposed in the forum in which she chose
to file.
•  However, if Plaintiff can show “hardship
or burden to the plaintiff, which
outweigh any prejudice to the defendant,
the general rule may yield to the
exigencies of the particular case.”
Plaintiff Client Noticed for Deposition
•  If unable to stipulate to remote deposition:
•  FRCP 26(c): “The court may . . . issue an order
to protect a party or person from annoyance,
embarrassment, oppression, or undue burden
or expense.”
•  Court may order that a plaintiff’s deposition be
taken in a different location, or by alternative
means, “if justice so requires.”
Plaintiff Client Noticed for Deposition
•  Rule 26 Motion
•  Plaintiff had no choice but to file in U.S.;
•  Immigration considerations and costly,
uncertain processes impose undue burden on P;
•  Financial hardship due to costs (visa fees, travel,
lodging, subsistence) relative to damages;
•  If P is guestworker: unjust enrichment if
guestworkers denied access to justice; perverse
incentive to hire foreign workers who are less
able to protect rights;
•  Satisfactory alternatives exists: no prejudice to D
Depositions of Non-Party Witnesses Abroad
•  Attempt to obtain witness’s voluntary cooperation. If
not possible:
•  FRCP 28(b)(1)(B): Letter of request or “letter rogatory”
•  Can be useful in seeking to depose a hostile, foreign
non-party witness if not subject to U.S. court’s
jurisdiction.
•  A formal appeal from a court in one country to
judicial authorities in another country to seek
compulsion of evidence, i.e. direct that testimony
be taken in a deposition.
•  Under applicable treaty, or
•  Diplomatic channels
•  Consult State Department website for countryspecific procedures to follow.
Taking Depositions Abroad: Foreign Law
•  Check laws in foreign country relevant to U.S.
discovery procedures within its borders:
•  U.S. Department of State website – judicial
assistance abroad
•  In some countries, voluntary depositions of nonU.S. citizens can only be taken pursuant to a
“letters rogatory” requesting judicial assistance
from the courts in those countries.
•  In some countries, State Dept. suggests taking
deposition in presence of attorney from the
country.
Taking Depositions Abroad: Oath
•  FRCP 28 sets forth 4 ways to proceed with
depositions abroad:
•  (A) Under an applicable treaty or convention
•  (B) Under a letter of request;
•  (C) “On notice, before a person authorized to
administer oaths either by federal law or by the
law in the place of examination;”
•  (D) “before a person commissioned by the court
to administer any necessary oath and take
testimony.”
Taking Depositions Abroad: Oath
•  FRCP 28(b)(1)(A): Under an applicable treaty or
convention:
•  The Hague Convention on Taking Evidence
Abroad in Civil or Commercial Matters (the
Hague Convention on Evidence)
•  Establishes procedures for obtaining
evidence outside of country where action is
pending, i.e. conducting depositions.
•  Not mandatory and serves only as permissive
supplement to FRCP
•  Can be costly and time-consuming
Taking Depositions Abroad: Oath
•  FRCP 28(b)(1)(B): Letter of request or letters
rogatory
•  Process can be complicated and timeconsuming.
Taking Depositions Abroad: Oath
•  FRCP 28(b)(1)(C): “On notice, before a person
authorized to administer oaths either by federal law
or by the law in the place of examination”
•  U.S. Consular Officials are authorized by federal
law to administer oaths.
•  Cost
•  Persons authorized to administer oaths under
law of place of examination:
•  Consult local law and experts
Taking Depositions Abroad: Oath
•  FRCP 28(b)(1)(D): “before a person commissioned
by the court to administer any necessary oath and
take testimony.”
•  Party may petition Court and seek commission
for a specific person to conduct oath abroad.
Taking Depositions Abroad: Oath
•  FRCP 29: Stipulate to an agreed-upon procedure,
including who will administer the oath, in writing
and request the Court to order it.
•  “Unless the court orders otherwise, the parties
may stipulate that: (a) a deposition may be taken
before any person, at any time or place, on any
notice, and in the manner specified – in which
event it may be used in the same way as any
other deposition.”
•  Must ensure that stipulated procedure does not
violate law of the other country.
•  OBTAIN WRITTEN STIPULATION AND
REQUEST THAT IT BE SO ORDERED BY
JUDGE.
Taking Depositions Abroad: Oath
•  Stipulate to a oath administered remotely pursuant
to FRCP 29 or seek court order through FRCP 26
•  U.S. court reporter remotely administers the
oath from the U.S. to deponent abroad via
telephone or video conference.
Taking Depositions Abroad: Logistics
•  If participating remotely, deponent can
participate via:
•  Telephone
•  Skype
•  Video Conference
Taking Depositions Abroad: Logistics
•  Recording deposition:
•  FRCP 30: “Unless the court orders
otherwise, testimony may be recorded by
audio, audiovisual, or stenographic means.”
•  A party is not required to first obtain
permission from the court or the other party
as to the method of recording.
•  Most practitioners utilize court reporters for
who record the deposition remotely.
•  Possible use of videographer in other
country.
•  Stipulate to procedure prior to deposition.
Taking Depositions Abroad: Logistics
•  Interpreter
•  No requirements for who can serve as an
interpreter in a deposition, though federal
court-certified interpreters are thought most
reliable.
•  Remote participation of interpreter in the
U.S. via phone or videoconference
•  Local interpreter present with deponent
•  Check with U.S. Consulate
Taking Depositions Abroad: Costs
•  Costs
•  FRCP 30(b)(2): “the party taking the
deposition shall bear the cost of the
recording”
•  However, this rule does not always apply,
especially if the non-resident plaintiff is the
deponent seeking a change from the normal
procedure.
•  Court may require plaintiff to cover the
additional costs, even if defendant ordered
the deposition.
•  QUESTIONS AND COMMENTS