Compelling German Third-party Witnesses to Testify in US Litigation

IJA Brigade member Peter Bert is back with a practical piece on procedure under the Hague Evidence Convention in Germany. This is cross-posted from Peter’s blog.

In US-German disputes, the question often arises whether a party in US litigation can compel a third-party witness who is a German resident and does not volunteer to testify to render testimony as part of the pre-trial deposition discovery in the US proceedings. In short, the answer is yes.

Germany and the US are signatory states to the Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, which allows for the transmission of letters of request for the judicial assistance in the taking of evidence among its signatory states without recourse to consular and diplomatic channels. Letters of request are commonly known as letters rogatory.

Germany has, as most European jurisdictions have, filed a reservation under Article 23 of the Hague Evidence Convention against the execution of letters of request issued for the purpose of obtaining pre-trial discovery of documents and hence does not execute letters of request pertaining to U.S. pre-trial discovery of documents. However, German authorities do execute letters of request under the Hague Evidence Convention for the examination of witnesses for U.S. legal proceedings. This does include testimony for the pre-trial discovery deposition of third party witnesses on German territory.

If you seek judicial assistance from German courts for the deposition testimony of a German resident who does not volunteer to testify in a U.S.litigation, this is what needs to be done:

First, a letter of request must be submitted to the competent German “Central Authority” designated by Germany pursuant Article 2 of the Hague Evidence Convention—please note that, counterintuitively, but due to the federal nature of our court system, there is not one Central Authority, but one in each federal state. The German Central Authority will satisfy itself that the letter of request meets the requirements of the Hague Evidence Convention and will then forward the letter of request to the competent German court for execution. The competent German court for the execution of the letter of request is usually the Local Court (Amtsgericht) at the place of residence of the third party witness.

The German court will summon the third party witness to appear before the court in order to render his or her testimony. The testimony will be taken before a German judge. Legal representatives of the parties to the US litigation are allowed to participate at the witness deposition. In accordance with Article 14 of the Hague Evidence Convention, no court fees are payable.

If the third party witness fails to appear at the hearing, the German court will usually hold the witness liable to bear any costs resulting from his or her default. Furthermore, the German court will regularly sanction any default by the witness to comply with his or her duties to testify by a fine and, if such file is not collectable, impose a detention upon the witness. Should a witness repeatedly fail to appear before the court, the court can request the police to physically enforce the personal appearance of the witness before the court.

In summary, the Hague Evidence Convention enables US litigants to obtain the testimony of a German resident who does not volunteer to testify in a pre-trial deposition discovery in US proceedings through the assistance by a German court. To execute a letter of request under the Hague Evidence Convention, the German court can and if necessary will take recourse to coercive measures against the third party witness which are available under normal German civil procedure rules including fines or detention.

4 thoughts on “Compelling German Third-party Witnesses to Testify in US Litigation

  1. Peter, German lawyers have given me varying advice about the extent to which the US lawyer gets to participate in the questioning. What’s your view? Does it vary by court or by judge?

    1. Ted, this raises a whole host of issues. To your immediate point: The parties to the U.S. litigation or their legal representatives (who not necessarily need to be admitted to the German bar) are allowed to participate at the witness deposition. In my experience, the issue sometimes is that the German court does not inform the US party or its representatives that and when it will hear the witness.

      However, even if the party attends or is represented, they are in for a surprise: in accordance with German civil procedure rules and practice the judge rather than the parties or their lawyers performs and controls the taking of the testimony. It would actually be worth a separate post to look at how the interrogation will be handled, the testimony will be recorded, and—of course—the issue of translation and interpretation.

      1. Yes, that is the issue I mean. I have been advised that in some cases it’s possible to ask the judge to put follow-up questions to a witness, but in that case we ended up not going ahead with the discovery so we never tested it. I would welcome another post on the mechanics of this!

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