Deposing Third Party Witnesses in Germany: The Same, but Different

Peter Bert follows up on his post from last week about the practice under the Hague Evidence Convention in Germany. For American lawyers, it’s obviously important to understand what will happen once your letter of request makes its way to Germany. But it’s also important to bear in mind how the US court will treat the result of an executed letter of request. Some key issues to look at: FRCP 28(b)(4), which provides that “[e]vidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States;” and FRE 804(b)(1), which provides an exception to the hearsay rule for unavailable witnesses.

A special thanks to Peter for this, his third post in two weeks!

In an earlier post, we looked at the possibility to compel German third party witnesses to testify. Parties to US litigation can compel third party witnesses under the Hague Evidence Convention to appear in court and testify. However, in executing a letter of request, the German courts apply their domestic rules and procedures. In general, the judge will treat the taking of evidence not any different from hearing a witness in a domestic civil litigation—and this is very different from a common law approach.

The German court summons the third party witness to appear before the court in order to render his or her testimony. The testimony is taken before, or I should say, by the German judge. The parties to the US litigation or their legal representatives (who not necessarily need to be admitted to the German bar) are allowed to participate at the witness deposition. However, 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. Thus, the judge herself or himself performs the interrogation of the witness about the questions or the subject-matters specified in the letter of request. Only subsequently will the court allow the party representatives to put questions to the witness. The court will however not allow questions outside the subject-matter specified in the letter of request. Also, the German judge will typically not allow additional questions by the lawyers of the parties if he or she is satisfied that the questions set out in the letter of request have already been appropriately covered by his or her own interrogation of the witness. And in my experience, the German judge’s understanding of what is relevant is likely to be much narrower than that of the US lawyers involved in the case.
Most likely, the judge will take testimony of a German-speaking witness. The taking of evidence will be conducted in German, and the court will then not provide for a translator. It would then be for the parties to arrange for an interpreter to be present. Some judges are be comfortable taking the evidence in English. Procedurally, they can do so, if all parties waive the right to have an interpreter present and have everything translated into German.

Finally, there is the issue of recording the testimony: There will be no court reporters, audio or even video tapes, only the judge and his dictaphone. The testimony of the witness is not taken verbatim but will be put on the record by the judge, usually in the judge’s own words and in a summarized form. Don’t be surprised to see twenty minutes of interrogation reduced to two sentences in the final court protocol. The court will then send the protocol of the testimony to the U.S. authority having requested the judicial assistance (Article 13 of the Hague Evidence Convention). At least, taking the testimony does not trigger court fees: In accordance with Article 14 of the Hague Evidence Convention, the German courts render judicial assistance free of charge.

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