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Posts by Peter Bert

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

Posted on August 29, 2013

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…

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Pre-Trial Discovery under the Hague Evidence Convention: Is Germany’s Position Softening?

Posted on August 26, 2013

Peter Bert is back with a report of an interesting development—or hint of a development—in how the German courts think about requests for the production of documents. This is cross-posted at Peter’s blog. A recent Frankfurt case raises this issue: Germany has declared “that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries,” in accordance with Art. 23 of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters. This notwithstanding, the President of the Frankfurt Court of Appeals (Präsident des Oberlandesgerichts) accepted a request for pre-trial discovery of documents from California. In doing so, he was acting in his capacity as the Central Authority under the…

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Compelling German Third-party Witnesses to Testify in US Litigation

Posted on August 21, 2013

IJA Brigade member Peter Bert is back with a practical piece on procedure under the Hague Evidence Convention in Germany. This is cross-posted from Peter’s blog. In US-German disputes, the question often arises whether a party in US litigation can compel a third-party witness who is a German resident and does not volunteer to testify to render testimony as part of the pre-trial deposition discovery in the US proceedings. In short, the answer is yes. Germany and the US are signatory states to the Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, which allows for the transmission of letters of request for the judicial assistance in the taking of evidence among its signatory states without…

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