The case of the day is Sardini Group, Inc. v. Imperial Pacific International (CNMI), LLC (D.N.M.I. 2023). I believe this is the first Letters Blogatory case of the day from the Northern Mariana Islands! Sardini sued Imperial Pacific for breach of contract, alleging it had failed to pay for design and engineering services for a hotel/casino project. IPI moved to strike testimony that had been taken remotely from witnesses in China. I take it that the parties took the testimony of Chinese witnesses by videoconference at trial (that is, that this isn’t a case of depositions taken before trial). The fact is that no testimony should take place in China without the permission of the Chinese government’s permission, in light of Article 284 of the Chinese Code of Civil Procedure, and that the way to get Chinese government permission to take testimony is via a letter of request under Chapter 1 of the Evidence Convention (China does not grant permission under Chapter 2, except for diplomatic or consular depositions of nationals of the state represented by the diplomat or consular officer, which is not relevant here). So the testimony should not have taken place.

But they did take place. I assume that Imperial Pacific was represented at the depositions (since otherwise I do not see how the deposition could be admissible). And so I am a little baffled by the court’s decision that they should be stricken and Sardini be required to try to take the evidence via the Convention. If the testimony were taken by deposition before trial, the failure to object to the taking of the deposition at the time of the deposition would constitute a waiver of the objection under FRCP 32(d). There is no similar rule governing trial testimony, but I cannot see why an issue about Chinese law should require the court to disregard testimony already taken.

Of course, once the issue is brought to the court’s attention, the court should not allow additional testimony to be taken contrary to Chinese law.

Of course, it would be preferable to have the Chinese witnesses be present in court to testify, see Fed. R. Civ. P. 43(a). And if that’s not possible, the Advisory Committee’s 1996 note to Rule 43 makes it clear that a deposition is generally preferable to contemporaneous videoconferencing for presenting the testimony of witnesses who cannot be compelled to come to court. But all that said, testimony is testimony, and a purely formal objection under foreign law to the taking of the evidence, but not to the evidence itself, seems to me to be an insufficient reason to strike the testimony.

Photo credit: Buffaboy (CC BY-SA)