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!

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.