I had an interesting and unusual experience this week. I help a lot of lawyers take depositions without compulsion abroad. But it’s not that common for me to have to take a deposition abroad in a state that is a party to the Evidence Convention and where advance permission from the competent authority in that state is required. But I’m in that situation now. The local law firm I’m working with suggested I reach out to one of the international discovery “vendors” out there to arrange for the stenographer and the interpreter. That’s fine, no problem. I spoke with a friendly person in the vendor’s international department and asked about their procedures. What I was told shocked me.

Apparently in the vast majority of projects the vendor does in this particular jurisdiction, no one asks permission from the competent authority and no one obtains a commission. No problem, I was told, the lawyers just stipulate that everything is okay. As if the only problem were the power of the court reporter, under US law, to administer an oath to the witness, and not whether administering the oath and conducting the deposition without the proper permission is a violation of the foreign state’s judicial sovereignty or its laws. Really, I asked? Really. Fortunately, when I mentioned that I already had a commissioner lined up and that all I really needed was the stenographer and the interpreter, it turned out that that will work, too.

I am not going to name and shame the vendor, because it seems like a good company doing something important and useful, and I suspect it is not doing anything that its competitors aren’t. But in my opinion vendors like this are giving bad legal advice to American lawyers on a large scale. It’s a tough problem, because it seems that most American lawyers are not sensitive enough to the issues to know that there is an issue on which they need good legal advice. And so we as a profession are traipsing around the world taking evidence illegally.¹Just to explain very briefly: the Convention provides that you can take evidence abroad via a commissioner if the foreign state has given permission, and that states may give blanket advance permission. Some parties to the Convention have given blanket permission, and some haven’t. There may be states that have not given advance permission but where in fact the law does not forbid a deposition without permission. You need the advice of a local lawyer to answer that question. The State Department also has a helpful website that is a resource for figuring out whether advance permission is required.

It’s a tough problem. I’ve consulted with many lawyers who, after hearing my advice, say that they’ve been told that what I’m recommending isn’t really necessary. I always respond that I know there are a lot of lawyers who just ignore the requirements of the Convention and local law and just go ahead and take discovery abroad, and that nothing bad ever really seems to happen to them. (But remember poor Christopher X!) But you’ve come to me for legal advice and I’ve given you legal advice. Whether you follow it is up to you!

You might ask why I care about this. Why not let other people, who are not my clients, do it wrong or even illegally? I care because I care about the system of international judicial assistance as a system. I’ve spent a lot of time and effort over many years thinking about, speaking about, reading and writing about, and practicing in the area. And I know the stereotype that many foreign lawyers carry in their heads about American lawyers, which is something like “dumb cowboys.” I really want us to do better, to follow the law of other countries when we travel there. That should not be too much to ask of lawyers.

That’s the end of my rant. And now, if I may give my pitch: if you find you need to take discovery abroad, please research the law so that you do it right. And if you don’t want to invest the time and money needed to learn how to do it right, please reach out to me: I can help!

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  Just to explain very briefly: the Convention provides that you can take evidence abroad via a commissioner if the foreign state has given permission, and that states may give blanket advance permission. Some parties to the Convention have given blanket permission, and some haven’t. There may be states that have not given advance permission but where in fact the law does not forbid a deposition without permission. You need the advice of a local lawyer to answer that question. The State Department also has a helpful website that is a resource for figuring out whether advance permission is required.