Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Deposition Procedures must conform to the procedure governing the litigation.
    1. A practitioner taking deposition testimony abroad must also ensure that the testimony is taken in conformity with the rules governing the U.S.-based litigation. For example, in U.S. federal court, the deposition must comply with the Federal Rules of Civil Procedure.
    2. Pursuant to the Federal Rules of Civil Procedure, a deposition may be taken in a non-U.S. country:

      pursuant to any applicable treaty or convention; or

      pursuant to a letter of request (whether or not captioned a letter rogatory); or

      on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the U.S.; or

      before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. Fed. R. Civ. P. 28(b) (1-4).

    3. In addition, under the Federal Rules of Civil Procedure, “the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify other procedures governing or limitations placed upon discovery.” Fed. R. Civ. P. 29.
      • Practice Tip: Although stipulations between parties may suffice for U.S. procedure purposes, they may not comply with the non-U.S. jurisdiction’s required methods or procedures.
    4. While a U.S. court may, upon application, issue a Letter of Request and transmit it directly to the non-U.S. court with jurisdiction over the witness, in some cases the non-U.S. jurisdiction may require that the transmission take place through diplomatic channels. In that case, the applicant will need to proceed under 28 U.S.C. § 1781(a)(2), which authorizes the U.S. State Department to transmit a Letter of Request from the issuing court to the non-U.S. tribunal to which it is addressed.
  2. Privacy Limitations on the Discovery of Material Abroad

    Another consideration that may limit the ability to obtain documents or information from abroad involves privacy limitations on the retention and transfer of information.  Please refer to Chapter 28 of this Guide for a more complete discussion of how the privacy rules of other nations operate and affect discovery abroad for use in U.S. court proceedings.

    1. Many non-U.S. jurisdictions have implemented strict privacy laws that may preclude non-U.S. companies from retaining data that includes or involves personal information for more than a short period of time.
      1. For example, as early as 1995, the European Parliament enacted Directive 95/46/EC, pursuant to which each EU Member State has enacted implementing legislation to protect personal information from unwarranted dissemination.
        1. Under this Directive, “personal data” is defined very broadly to encompass all information relating to an identified or identifiable natural person; and
        2. can include documents and electronic mail, even if related to the person’s business obligations.
      2. When seeking material from such a jurisdiction, it can be important to address the scope of discovery early, before the relevant retention period expires.
      3. In certain circumstances (depending upon the jurisdiction), a timely request may be critical in preventing or delaying routine destruction of information relevant to ongoing litigation.
    2. Even if the material is retained by the non-U.S. entity, there may also be limitations on that entity’s ability to transfer that data to another country.
      1. These limitations can apply even in the face of otherwise proper and appropriate discovery requests.
      2. They can also apply even to non-U.S. subsidiaries of U.S. corporations or other entities involved in U.S. litigation.
      3. For example, although the EU Directive 95/46/EC specifically includes an exception permitting the transfer of personal data to another country where necessary “for the establishment, exercise or defense of legal claims,” that exception has generally been interpreted to refer to legal claims pending in an EU forum and has been seen as inapplicable in the case of claims pending in a U.S. forum.
    3. Parties or non-parties that ignore their obligations under EU Directive 95/46/EC or other similar statutes can face severe penalties, including payment of damages to those whose personal data was inappropriately retained, disclosed or transferred.

Practice Tip: A practitioner seeking discovery of material abroad, or representing a party from whom such discovery is sought, is strongly advised to consult local counsel in the non-U.S. jurisdiction before making any disclosures or turning any material over to ensure that the disclosure complies with relevant privacy laws.

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