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. Admissibility: Pertinent Exceptions to the Hearsay Rule Applicable to Foreign Records or of Particular Interest with Cases Involving Foreign Litigants.
    1. Introduction: An essential part of trial preparation is carefully conducted review for admissibility of all evidence to be presented at trial. The primary evidentiary rule that the proponent of a document or a deposition transcript must clear is hearsay. Hearsay is defined in FRE 801 as “a statement, other than made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” In this section, we review those exceptions to the hearsay rule that may be of greatest utility in seeking to introduce documents, records, and reports that originate from abroad.
    2. FRE 801(d)(2): Admission of a Party Opponent.
      1. Relevant admissions by a party, whether domestic or foreign, are non-hearsay and are admissible when offered by an opponent. Mike’s Train House, Inc. v. Lionel LLC, 472 F.3d 398, 412-413 (6th Cir. 2007) (statements and interrogation of Korean defendants in Korean investigation admissible under FRE 801(d)(2)) The admission need not have been against the party’s interest when made. Admissions are substantive evidence and no preliminary foundation need be made, nor does the party have to have personal knowledge of the matter admitted, and opinions allowable evidence. The use of admissions in evidence does not depend on the availability or unavailability of the declarant or on whether the witness actually testifies.
      2. For these purposes the fact that the admission is in the form of a translation is of no moment, since, for these purposes, the interpreter is considered an agent of the party opponent. See People v. Romero, 78 N.Y.2d 355, 575 N.Y.S.2d 802 (1991).
    3. Statement of Co-conspirator: Under FRE 801(d)(2)(E) a statement of one co-conspirator is admissible against the others as an admission of a party-opponent in both civil and criminal cases, if made in the cause and in furtherance of the common objectives of conspiracy.
    4. Judicial and Evidentiary Admissions: Judicial Admissions are binding upon the party making them; they may not be controverted at trial or on appeal. They have the effect of withdrawing a fact from contention. These include statements in pleadings the case. Evidentiary admissions that may be controverted or explained by the party include pleadings in another case, suspended or withdrawn pleadings in the same case, judicial admissions in another case.
    5. FRE 803(b)(6): Business Records: Bank records, and in particular, Swiss Bank records, may be admissible under FRE 803(b)(6) as records of regularly conducted activity created and maintained in the regular course of business as a regular practice of that business. Meldridge, Inc. v. Heublin, 125 B.R. 825, 830 (D. Or. 1991), citing United States v. Miller, 830 F.2d 1073, 1077-78 (9th Cir. 1987).
    6. FRE 803(8): Public Records and Reports
      1. FRE 803(8) provides that records, reports, statements, or data compilation, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
      2. Under FRE 803(8), foreign public records also may be admissible as an exception to the hearsay rule. See Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398 (6th Cir. 2007) (Korean notices of arrest, complaint and Korean investigative reports were admissible under 803(8)); American Life Insurance Company v. Barbar, 488 F .Supp. 2d 750, 756 (N.D. Ill. 2007) (civil record and death certificate from Syria were admissible); Morgan Guaranty Trust Co. v. Hellenic Lines Ltd., 621 F. Supp. 198, 216-17 (S.D.N.Y. 1985) (admitting minutes of foreign shareholders meetings under Rule 803(8)(B)); Meldridge, Inc. v. Heublin, 125 B.R. 825, 830 (D. Or. 1991) (Swiss Police Reports including factual findings resulting from investigation where admissible under hearsay exception for police reports in civil cases, under FRE 803(8)(c)); United States v. Grady, 544 F.2d 598, 604 (2d Cir. 1976) (Irish police records admissible under 803(8)(B).)
      3. At least one case has held that 803(8)(C) does not apply to judicial findings of fact and, thus, a foreign judicial order will not be admitted under this rule. Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993).
      4. The United Nations and the Oraganization for Economic Co-Operation and Development (OECD) are both considered “public offices or agencies within the rule, and excerpts of OECD reports and tables taken from statistical office of the United Nations have been admitted into evidence under FRE 803(8). See Zenith Radio Corporation v. Matsushita Electrical Industrial Co., 505 F. Supp. 1125, 1186-87 (E.D. Pa. 1980), rev’d on other grounds sub nom In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), reversed on other grounds sub nom Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
      5. Though not foreign records, United States State Department reports and other reports concerning activities in other countries may be excepted from the hearsay rule as public records under FRE 803(8). See, e.g., Bridgeway Corp. v. Citibank, 201 F.3d 134, 142-44 (2d. Cir. 2000) (approved admission of U.S. State Department Country Reports for Liberia, holding that the reports were excepted from the hearsay rule by FRE 803(8)(C)); see also, Johnston v. Multidata Systems Int’l Corp., 2007 WL 1296204, *n. 19 (S.D. Tex. April 30, 2007).
    7. FRE 803(9): Records of Vital Statistics: Public records of vital statistics from outside the United States are included within this exception to the hearsay rule. See, e.g., Estate of Loik, 493 Pa. 512, 426 A.2d 1134 (1981) (reversible error to exclude a Soviet marriage certificate as evidence that decedent married claimant on August 10, 1940).
    8. FRE 803(10): Absence of public record or entry: Evidence in the form of a certificate in accordance with FRE 902, that diligent search failed to disclose the record, report, statement or data compilation or entry, is admissible as a hearsay exception to prove the absence of a record, report, statement or data compilation. This rule also applies to the admissibility of evidence relating to the absence of a record from outside the United States.
    9. FRE 803(16): A statement in ancient documents: Non-U.S. documents are encompassed by the hearsay exception in 803(16) for statements in ancient documents; i.e., a document in existence twenty years or more, the authenticity of which is established. U.S. v. Mandycz, 447 F.3d 951, 966 (6th Cir.), cert. denied, 127 S. Ct. 414 (2006) (admitted inculpatory records of Soviet post-war interrogations under FRE 803(16)); U.S. v. Firishchak, 426 F. Supp. 2d 780 (N.D. Ill. 2005), aff’d, 468 F.3d 1015 (7th Cir. 2006) (documents regarding Nazi occupation of Ukraine admissible as ancient documents); U.S. v. Demjanjuk, 367 F.3d 623 (6th Cir.), cert. denied, 543 U.S. 970 (2004) (admission under FRE 803(16) of a German service identity card).
    10. FRE 803(22) Judgment of Previous Conviction; Other Adjudications: Evidence of a criminal conviction, if offered to prove a fact essential to sustain the conviction, is hearsay. But if the crime is a felony, evidence of a conviction, offered to prove a fact essential thereto, is admitted as an exception to the hearsay rule. FRE 803(22). This rule also applies to foreign criminal convictions. See U.S. v. Garland, 991 F.2d 328 (6th Cir. 1993) (holding that a Ghanaian judgment, of which the court took judicial notice under FRE 201, was admissible “as prima facie evidence of the facts adjudicated” under 803(22)); Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 412 (6th Cir. 2007) (Korean court records, including indictments, were admissible under FRE 803(22)); Lloyds v. American Export Lines, Inc., 580 F.2d 1179, 1190 (3d Cir.), cert. denied, 439 U.S. 969 (1978) (Japanese judgment of conviction admissible under FRE 803(22)).
    11. FRE 804(b)(3) allows for the admission of statements against the declarant’s interest so long as the witness is unavailable and applies to witness statements and interrogation transcripts in proceedings outside the U.S.. Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 412 (6th Cir. 2007) (Korean witness statements and interrogation transcripts admitted under FRE 804(b)(2)).
    12. Residual Exception to the Hearsay Rule under FRE 807 (formerly under FRE 803(24)):
      1. The residual, or catch-all, hearsay exception permits the introduction of necessary and trustworthy hearsay that does not fall within any of the other hearsay exceptions. For years, FRE 803(24) contained the residual hearsay exception where the availability of the declarant is immaterial. In 1997, Rule 803(24) was transferred to new Rule 807, where it was combined with the residual hearsay exception where the declarant is unavailable, previously FRE 804(b)(5). No change in meaning was intended. FRE 807 provides:

        A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. But a statement may not be admitted under the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

      2. Bank records from outside the U.S. have been held admissible under the residual hearsay exception. U.S. v. Wilson, 249 F.3d 366, 376 (5th Cir. 2001).
      3. Communications from foreign governments to the United States were admissible as evidence under the residual hearsay exception.
        1. In U.S. v. Doe, 860 F.2d 488 (1st Cir. 1988), cert. denied, 490 U.S. 1049 (1989), post-conviction relief granted on other grounds, 921 F.2d 330 (1st Cir. 1990), the First Circuit Court of Appeals held that the trial court did not abuse its discretion by admitting the following evidence under the residual hearsay exception: two telexes from a Coast Guard station indicating that the station had received telephonic permission from the foreign government; and (2) a certificate from the commander-in-chief of the Honduran naval force verifying that the government had granted permission.
        2. In U.S. v. Marsh, 747 F.2d 7 (1st Cir. 1984), the Court of Appeals rejected the claim that the trial court erred in admitting various documents evidencing Denmark's consent to the prosecution of the defendants by the United States government. The court in Marsh stated, without further discussion, that it was sufficient that in admitting these documents the trial court properly found that the requirements of the residual hearsay exception had been met.
        3. In U.S. v. Loalza-Vasquez, 735 F.2d 153 (5th Cir. 1984), the Court of Appeals held that the trial court did not err in permitting the prosecution to prove that an arrangement existed between the United States and Panama by the hearsay testimony of the captain of a Coast Guard ship, admitted under the residual hearsay exception that he had been advised by a series of teletype messages that the government of Panama had authorized his crew to board the defendant's vessel.
        4. In U.S. v. Peterson, 812 F.2d 486 (9th Cir. 1987), the Court of Appeals rejected the argument that the government's exhibit documenting the consent of the Panamanian government to seizure of a ship should not have been admitted under the residual exception. The court acknowledged that the certificate bore inconsistent dates, but found that the district judge had not abused his discretion in finding it sufficiently reliable to be admitted under that exception.
        5. In an action to recover on two life insurance contracts, the Eleventh Circuit held under the catch-all hearsay exception a decree of an Argentine court that declared that the Argentine insured was presumptively dead was admissible. Branca by Branca v. Security Ben. Life Ins. Co., 773 F.2d 1158 (11th Cir. 1985), opinion modified on other grounds, 789 F.2d 1511 (11th Cir. 1986).
      4. Evidence that certain information was not included in the records of foreign governments have been held admissible under the residual hearsay exception:
        1. The court in U.S. v. Cahill, 1988 WL 71239 (N.D. Ill. June 28, 1988), held that signed or stamped certifications from public offices and agency representatives in Mexico, indicating that document searches conducted for particular areas in Mexico disclosed no record of the defendant or the companies at issue, were admissible. The court ruled that the documents bore sufficient indicia of reliability, adding that the fact that a more thorough search could have been mean that the government had not conducted the search in a diligent manner.
      5. Summaries of foreign government records have been held to be admissible under the residual hearsay exception.
        1. In Chase Manhattan Bank v. Traffic Stream (BVI) Infrastructure Ltd., 86 F. Supp. 2d 244, 254 (S.D.N.Y. 2000), rev’d on other grounds, 251 F.3d 334 (2d Cir. 2001), rev’d, 536 U.S. 88 (2002), the court held that an article in a newspaper published by the Chinese Communist Party's central commission, which described a change in government policy, was admissible under the residual hearsay exception.
        2. The court in U.S. v. Friedman, 593 F.2d 109 (9th Cir. 1979), upheld the trial court determination admitting, under the residual hearsay exception Chilean "travel documents," which were a written summary of official Chilean immigration records offered to prove the contents of the official immigration records to show when the defendants visited Chile. The court noted that the original Chilean immigration records would have been admissible under Rule 803(8) as public records, and the court concluded that the travel documents were sufficiently trustworthy and the Chilean official had no reason to falsify or misrepresent the documents.
      6. Documents purporting to show that individuals had been convicted of crimes in foreign countries held not admissible as evidence under the residual hearsay exception.
        1. in U.S. v. Perlmuter, 693 F.2d 1290 (9th Cir. 1982), the Court of Appeals held that a document, which purported to list four convictions suffered by the defendant in Israel, but which was not properly authenticated, was not admissible under the residual hearsay exception. The court concluded that the document, which was obtained through Interpol, did not have the circumstantial guarantees of trustworthiness and that there was nothing in the record to indicate that through reasonable effort the government could not have procured more probative evidence, such as the actual judgments of conviction.
        2. The court in U.S. v. Chu Kong Yin, 935 F.2d 990 (9th Cir. 1991), held that documents from Hong Kong entitled "Certificate of Trial," which consisted of entries purporting to list the crimes for which the defendant had been arrested or convicted in Hong Kong, were not admissible as evidence under the residual exception. The court concluded that the records did not have the necessary circumstantial guarantees of trustworthiness because there was no evidence indicating that the exhibits were prepared by persons with first-hand knowledge of the convictions or were contemporaneous recordings of those events. The court also stated that there was nothing in the record to indicate that through reasonable efforts the government could not have procured more probative evidence such as the actual judgments of conviction.
  2. Authentication of Non-U.S. Official Records Under FRCP 44(a)(2)
    1. FRCP 44(a)(2) sets forth four ways in which litigants may authenticate a foreign official record that is “admissible for any purpose” at trial. (See also 28 U.S.C.A. § 1741 (foreign official documents may be evidenced by a “copy, summary, or excerpt” authenticated as provided in the FRCP)); FRE 902 (foreign public documents that are executed or attested as set forth in FRCP 44(a)(2) are self-authenticating); see generally C. Wright & A. Miller, Federal Practice & Procedure, Civil 2d §§ 2431 to 2437.
    2. A foreign official record may be evidenced by “an official publication thereof.” An “official publication” has been defined as a copy of the foreign official record that purports to have been printed by authority of the foreign government. See C. Wright & A. Miller, Federal Practice & Procedure: Civil 2d § 2433.
    3. A party may authenticate the record by submitting a copy that is attested to by a person authorized to make the attestation and is accompanied by a certification as to the genuineness of the signature and official position of the attesting person. The final certification may be made by a secretary of an embassy or legation, consul general, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited in the United States. See U.S. v. Firishchak, 426 F. Supp.2d 780 (N.D. Ill. 2005), aff’d, 468 F.3d 1015 (7th Cir. 2006) (documents regarding Nazi occupation of Ukraine were admissible as self authenticating documents under FRCP 44(a)(2) and FRE 902(3)); U.S. v. Squillacote, 221 F.3d 542, 561–563 (4th Cir. 2000), cert. denied, 532 U.S. 971 (2001) (certification of foreign documents by a director at the counter-intelligence service for the Federal Republic of Germany and a Counselor of the Embassy of the Federal Republic of Germany).
    4. A party may authenticate a record by submitting a copy that is attested to by a person authorized to make the attestation, accompanied by a certificate of a foreign official as to the genuineness of the attestation (which may, in turn, be followed by one or more certificates, each certifying the genuineness of the certificate of the official below in the custody chain) and a final certificate of a United States or foreign diplomatic or consular official. See C. Wright & A. Miller, Federal Practice & Procedure: Civil 2d § 2435.
    5. Where a reasonable opportunity has been given for the parties to investigate a record's authenticity and accuracy, the record may be authenticated by submitting an attested copy without final certification or an attested summary of the record upon a showing of good cause. See U.S. v. Yousef, 175 F.R.D. 192, 193–94 (S.D.N.Y. 1997) (documents were not admitted where party failed to present facts supporting a finding of good cause for not obtaining certification); In re Letter of Request from Boras Dist. Court, Swed., 153 F.R.D. 31, 35–36 (E.D.N.Y. 1994) (document admitted without attestation and certification where parties were given an opportunity to investigate the document's authenticity and accuracy and because 28 U.S.C.A. § 1781 was intended to facilitate the admission of such documents).)
    6. FRCP 44 was amended in 1991 to provide that a party need not provide a final certification where the record and the attestation are certified as provided in “a treaty or convention to which the United States and the foreign country in which the official record is located are parties.” This amendment was intended to permit certification of foreign official records pursuant to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (“Hague Public Documents Convention”). See Fed. R. Civ. P. 44, Advisory Comm. Note; Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, with Annex, Oct. 5, 1961, T.I.A.S. 100721, U.N.T.S. 189. The Hague Public Documents Convention, together with a list of its current signatories, is reproduced in full following FRCP 44.
    7. The Hague Public Documents Convention replaces the final certification required by Fed. R. Civ. P. 44 with a model apostille that is issued by officials of the country where the record is located. Hague Public Documents Convention arts. 2 to 4; see also Fed. R. Civ. P. 44, Advisory Comm. Note. The apostille certifies the signature, official position, and seal of the attesting officer. See Hague Public Documents Convention arts. 3 to 4. According to the legislative history of Rule 44, the apostille can be accorded greater weight than the normal authentication procedure because foreign officials are “more likely to know the precise capacity under their law of the attesting officer than would an American official.” See Fed. R. Civ. P. 44, Advisory Comm.
    8. While failure to timely object to the admission of evidence in a foreign official documents may be a waiver of the objection, there is authority to that when the admission of a contested official record will work a substantial hardship on the party against whom the evidence is directed, admission may be denied if there is adequate ground for the objection. See U.S. v. Gabrinia, 119 F.2d 863 (2d Cir. 1991).
    9. Like any other evidentiary fact, authentication may be waived by pretrial stipulation. See United States v. Wing, 450 F.2d 806 (9th Cir. 1971), cert. den. 405 U.S. 1994 (1971).
    10. FRE 44(a)(2) has been applied by federal courts to authentication of widely varying types of foreign documents including: (a) death certificates; (b) military service records of foreign governments; (c) marriage; judgment of a foreign court; (d) radio communication with airports; (e) expropriation of private property; (f) bankruptcy proceedings in a foreign country; (g) extracts of foreign statutes; guardianship of minor children. See Proof of Foreign Official Record Under Rule 44(a)(2) of Federal Rules of Civil Procedure, 41 A.L.R. Fed. 784 (1979) (collecting cases).
  3. Authentication of Foreign Records Under the FRE 901 and 902
    1. A precondition to admissibility of any document is authentication of the document or record. There are several provisions under the Federal Rules of Civil Procedure and the Federal Rules of Evidence that are of particular pertinence in cases involving public records and documents and foreign records of regularly conducted business activity.
    2. FRE 901: Requirement of Authentication or Identification
      1. The general requirement in FRE 901 provides that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.”
      2. While FRCP 44(a)(2) and FRE 902, discussed below, may provide for more direct avenues of authentication for foreign documents, neither precludes a party from attempting to authenticate a document under the general provision in FRE 901 allowing the district court to admit evidence if sufficient proof has been introduced, by testimony of a witness with knowledge or through expert opinion, so that a reasonable juror could find in favor of authenticity or identification. United States v. Childs, 5 F.3d 1328, 1336 (9th Cir. 1993) (holding that district court did not abuse its discretion by permitting Canadian public documents to be authenticated under FRE 901 by testimony of an Alberta DMV employee); Yongo v. INS, 355 F.3d 27 (1st Cir. 2004)(German immigration records could be authenticated through an INS officer’s testimony regarding their source and appearance.)
      3. Conversely, a district court abuses its discretion if it requires a certification as a mandatory pre-requisite to authenticating the document and refuses to consider evidence proffered by the proponent that would support a finding matter in question is what the proponent claims. Vatyan v. Mukasey, ___F.3d ___, 2007 WL 4168985 (9th Cir. Nov. 27, 2007) (Immigration judge erred in requiring asylum applicant to produce some form of official certification as mandatory pre-requisite to authenticating documents and in failing to weigh testimony in deciding whether documents were authentic.)
    3. FRE 902(3) Foreign public records and documents.
      1. FRE 902(3) provides that a foreign public document that purports to be executed or attested by an official empowered to execute it is self-authenticating if it is:

        [A]ccompanied by a final certification as to the genuineness of the signature and official position (1) of the executing or attesting person, or (2) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in chain of certificates of genuineness of signature and official position relating to the execution or attestation.

      2. FRE 902(3) provides further that:

        A final certification may be made by a secretary of an embassy or legation, consul general, consul vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.

      3. FRE 902(3) is derived from FRCP 44(a)(2) but may be broader than that rule since it applies to public documents and is not limited to public records. A public document has been defined as an official paper, a document on file in a public office, and a publication printed by order of Congress or either house thereof. A public record has been defined as a record required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.
      4. In a case where veracity and accuracy of a translated foreign pleading was at issue, the interpreter could not be qualified and the document was deemed inadmissible. Defendants had included a notarized affidavit signed by the alleged interpreter detailing her education and experience with translations. But the court held that the foreign pleading did not meet the proper standard for self-authentication of foreign public documents under Rule 902(3). Pace Shipping Servs. Network SA v. M/V Ocean D, 2003 WL 1733544 (E.D. La. Mar. 28, 2003).
    4. FRE 902(4) Certified Copies of Public Records.
      1. Reading FRE 902(4) together with FRE 902(3), a foreign public record, or an officially filed or recorded document, may be proved with a copy accompanied by: (a) a certificate made by “the custodian or other person authorized to make the certification” (FRE 902(4)); and (b) a “final certification” (FRE 902(3)) made by a diplomatic or consular officer.
      2. The diplomatic or consular officer attests to the “genuineness of the signature and official position” of the first certifier.
      3. There is a chain of certificates, with a final certificate by the diplomatic consular or consular official attesting to the signature and authority of those in the chain. The first certificate should bear an actual signature, since that is the signature of the signer made or supervised the copying of the original document. The “custodian” executes this certificate, but in foreign systems the custodian may not be authorized to certify copies. FRE 902(4) is satisfied by a certificate from any “other person authorized to make the certification.” Where a death certificate contained a "final certification" of a vice consul as to the "genuineness of the signature and official position" of a "foreign official whose certificate of genuineness of signature and official position" was in a "chain of certificates of signature and official position relating to the execution or attestation of the death certificate," because one signatory certified a second's authentication, and the second had certified a third official's status and signature, and that third individual had notarized the death certificate, this document is self-authenticating under Rule 902(3). Sook Ying Loo v. Prudential Ins. Co. of Am., 2004 U.S. Dist. LEXIS 26001 (S.D.N.Y. 2004).
      4. The first certificate should indicate the official position of its maker and the name and location of his office and authority. It should state that the copy is a true and correct copy of a document prepared by a document filed or recorded with or a named public entity or authority.
      5. Subsequent certificates should state the official position and the names and locations of their certified authorities. They should state that the signature on the next certificate in the chain is genuine and that the signer of such prior certificate had authority to certify the documents or was in a position to know whether such documents are genuine.
      6. The requirements for the final certification are the same as those imposed by FRE 902(3) for final certification of the originals of foreign records.
      7. Practice Tip: New York State CPLR § 4542 provides that a copy of a foreign official record is self authenticating if (1) the copy is attested by an authorized official, and (2) a “final certification” is made regarding the genuineness of the signature and official position either of (a) the person who attested the copy or (b) of any other foreign official who made the certification concerning the attestation. Here again, “[a] final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United states, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.” But note that the New York statute is not mandatory and only provides that the official record “may be evidenced” in the ways there described. CPLR § 4543 provides that “[n]othing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the rules of evidence at common law.” And, under the common law, all that need be done is to offer evidence from which a reasonable juror could have concluded that the documents were what they purported to be. . . See Garcia v. Portuondo, 459 F.Supp. 2d 267, 283-85 (S.D.N.Y. 2006); see also Prince, Richardson on Evidence § 9-207 (11th ed. 1995); E. Fisch, Fisch on New York Evidence § 118 (2d ed. 1977).
    5. FRE 902(12): Certified Foreign Records of Regularly Conducted Activity.
      1. FRE 902(12) is similar to the hearsay exception under FRE 803(6) for documents or business records prepared or kept in the ordinary course of business except: (1) it requires a written foreign certification of the record’s “custodian or other qualified person” to authenticate the business record, and (2) notice to adversaries.
      2. The rule does not change the requirement that the proponent find a custodian or qualified person. But that person no longer has to appear in court. Instead, the person can sign a written declaration that provides the same information regarding the record as that the person would have testified to if appearing in court as a witness. The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. The certification or declaration need not be under oath if it complies with 28 U.S.C. § 1746, which authorizes the substitution of an unsworn declaration made under penalty of perjury.
      3. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) is self-authenticating if accompanied by a written declaration by its custodian or other qualified person certifying that the record (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) was kept in the course of the regularly conducted activity; and (c) was made by the regularly conducted activity as a regular practice.
      4. A party intending to offer a record into evidence under FRE 902(12) must provide written notice of that intention to adversaries, and must make the record and declaration available sufficiently in advance to provide a fair opportunity to challenge them.
      5. Federal Rules of Criminal Procedure § 3505 provides a similar exception for foreign records in criminal proceedings for records of regularly conducted activity if the record meets the requirements for business records under 803(6), unless the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness. See, U.S. v. Hing Shair Chan, 680 F.Supp. 521, 523 (E.D.N.Y. 1988).
    6. Admissibility of foreign patents and related documents
      1. Copies of the specifications and drawings of foreign letters patent, or applications for foreign letters patent, and copies of excerpts of the official journals and other official publications of foreign patent offices belonging to the United States Patent and Trademark Office, certified in the manner provided by Section 1744 of this title are prima facie evidence of their contents and of the dates indicated on their face. 28 U.S.C.A. § 1745.
  4. Translation of Documents and Foreign Records.
    1. The authority available indicates that a producing party does not have a duty in normal circumstances to translate documents kept regularly in a foreign language. See In re P.R. Elec. Power Auth., 687 F.2d 501 (1st Cir. 1982). But to use foreign language documents at trial, the parties will need to exchange translations before they can be offered into evidence.
    2. In document intensive commercial litigations, the parties will likely have had translations made of the key documents, and may have used conflicting translations during deposition discovery. Other documents may have been partially translated at the depositions by an interpreter. The parties may have objections to certain translations. In all events, courts will want to have the parties exchange translations and stipulate beforehand, whenever possible, to the accuracy of any translations to be offered at trial.
  5. Use of Deposition Transcripts at Trials Involving Non-U.S. Litigants
    1. Perhaps more often than in other contexts, counsel in a case involving a non-U.S. litigant will need to introduce deposition testimony at trial. Not infrequently counsel will need the testimony of foreign witnesses who are outside the United States and beyond the scope of the court’s subpoena power and who are therefore unavailable for live trial testimony.
    2. Both the Federal Rules of Civil Procedure and the Federal Rules of Evidence speak to the use of depositions at trial. FRCP 32 is liberal regarding use of the deposition transcript for impeachment. But FRE 802, 803, and 804 also permit the use of deposition testimony, under specified circumstances, as an exception to the hearsay rule.
    3. Where expert interpreters were employed at a pretrial deposition and later challenged, the trial court could conduct a hearing into their expertise and the accuracy of the translation. United States v. Kramer, 741 F. Supp. 893 (S.D. Fla. 1990).
    4. As in all cases, the adverse party’s deposition may be used “for any purpose” under FRCP 32(a)(2). This is true whether the adverse party is available at trial or not. The deposition of an adverse party is not hearsay, because it is an admission under FRE 801(d)(2).
    5. As to third party witnesses, under FRCP 32(a)(3), the deposition of an unavailable witness may be used “by any party for any purpose” if among other things, the court finds that the witness is beyond 100 miles from the place of trial or outside the United States, unless, of course, the party offering the deposition procured the witnesses’ absence.
    6. A corporate party may be able to use the depositions of its employees who are outside the U.S., even though it is clear that the corporation could procure those employees as live witnesses at trial. See Glaverbel Societe Anonyme v. North Lake Mktg. and Supply, Inc., 1991 WL 256560 (N. D. Ind. Nov. 19, 1991).
    7. As for the Federal Rules of Evidence, a deposition is technically hearsay and must be admissible under FRCP 32 or under a hearsay exception under the Federal Rules of Evidence.
    8. FRE 804(b)(1) provides an exception to the hearsay rule for testimony given by a witness who is unavailable for trial “in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest had an opportunity and similar motive to develop testimony by direct, and, or redirect examination.”
    9. Unavailability of a witness for purposes of FRE 804 is not coextensive with unavailability for purposes of Fed. R. Civ. P. 32(a)(3). A declarant is considered unavailable under FRE 804 on the grounds of privilege, persistent refusal to testify, or if the proponent has been unable to procure attendance by “process or other reasonable means.” Under FRE 104, the court is not bound by the evidence rules in deciding the issue of unavailability.
    10. If none of the specific exceptions under FRE 804(b)(1)-(4) applies, deposition testimony may be admissible under the residual exception FRE 807 formerly part of 803(24).
      1. Practice Tip: This residual exception could cover foreign documents or depositions, but admissibility under this provision should be sought only as a last resort if the ordinary exceptions to the hearsay rule do not apply.

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