More on Rulemaking and Cross-Border Discovery: FRCP 28

My last post on the desirability of amending the Federal Rules of Civil Procedure to account for cross-border discovery got me thinking more about the topic. Let’s look at one of my favorite rules, FRCP 28. It’s little-known, but in some ways it’s the key rule for cross-border discovery practice.

Rule 28 provides that that a deposition can be taken abroad:

  1. under an applicable treaty or convention;
  2. under a letter of request, whether or not captioned a “letter rogatory”;
  3. on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or
  4. before a person commissioned by the court to administer any necessary oath and take testimony.

FRCP 28(b)(1). How could this be made better? In my view the rule could indicate that notices can only be taken on notice or before a commissioner if the foreign state has given permission or if its law permits depositions to take place without permission. You would be surprised to learn how many American lawyers blithely fly to foreign countries, have witnesses sworn in, and take testimony without considering whether they are violating foreign law. In some countries it is necessary to have a letter of request from a judicial authority requesting permission, which is to say that the distinctions between Rule 28(b)(1)(B), (C), and (D) are not as clear as we might wish.

Rule 28 also provides a relaxed rule for admissibility of deposition testimony taken abroad under methods not usually used here:

Evidence 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.

FRCP 28(b)(4). In principle, it would be good to put a little bit more meat on the bones. One big issue is cross-examination. An opportunity for cross-examination is essential to the admissibility of former testimony over a hearsay objection. FRE 804(b)(1)(B). But in jurisdictions where typically the witness is questioned by the judge, sometimes without much opportunity for lawyer participation, how can we know whether the evidence will be admissible under Rule 28 notwithstanding Rule 804? The best answer would be for foreign jurisdictions, especially those that are party to the Evidence Convention and that are supposed to “follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties” (Convention art. 8), to be more open to requests for lawyers to be able to examine and cross-examine witnesses in US cases.1 It would also be useful to have more guidance about just how far one can depart from ordinary US practice and still have the evidence admitted at trial. But I do not think the law on this is well-developed enough yet to try to codify anything in a rule.

  1. There are also some ways to try to minimize the problem, e.g., by collaborating with opposing counsel on the preparation of letters of request, but I don’t want to get into that in detail here.

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