TAKING EVIDENCE AT THE FLOOD TIDE:
HOW TO OBTAIN THE TESTIMONY OF
DEPARTING, DEPARTED AND
UNAVAILABLE ADMIRALTY WITNESSES
August 2002
David T. Maloof, Esq.*
Barbara Sheridan, Esq.**
For
Fourth Biennial Maritime Law Symposium
Newport and Bristol, Rhode Island
*Partner, Maloof Browne & Eagan LLC
** Associate, Maloof Browne & Eagan LLC
I. INTRODUCTION
This article is about when and how to obtain testimony from people
who do not want to be deposed - because they have departed or are
departing the jurisdiction or because they are otherwise unavailable
to give such testimony.
The key to successfully obtaining testimony under such circumstances
is swift and certain action, commenced early in a litigation. In
this regard, the theme of the article can best be summarized by
Shakespeare:
There is a tide in the affairs of men
which taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.
Julius Caesar, IV. iii. 85
We will treat separately each of the three categories of such recalcitrant
witnesses: the departing witness (in Section III), the departed
witness (in Section IV), and the unavailable witness (in Section
V). But first, we provide (in Section II) an overview of deposition
timing, a subject more complicated than it sounds.
II. WHEN CAN A RECALCITRANT WITNESS’ TESTIMONY FIRST BE SCHEDULED?
The mandatory universal adoption in 2000 of Federal Rule of Civil
Procedure 26 in all Federal District Courts created one starting
point for depositions. Previously, some Districts had opted out
of that Rule. As a general practice matter, up until 2000, in Districts
which had opted out of Rule 26, depositions would occur within a
reasonable time after the filing of a Defendant’s Answer.
Rule 26 now provides the definitive starting point when depositions
can occur. Rule 26(d), which addresses the timing and sequence of
discovery, states that a party may not seek discovery from any source
before the parties have conferred at an early meeting of counsel
as required by Rule 26(f). Under Rule 26, the first Notices of Deposition
can be served after the parties meet and confer to discuss the nature
of the claims and defenses, the possibility of settlement, and the
discovery timetable for the case. That meeting of the parties, in
turn, has to be scheduled no later than 21 days before the date
set for the Initial Case Management conference in the case, or 21
days before a scheduling order is due under Rule 16(b). Rule 16(b)
states that a scheduling order shall be issued by the District Judge
“as soon as practicable” but in any event within 90 days
of a defendant’s appearance and within 120 days of the service
of the Complaint upon a defendant.
The usual date for the Initial Case Management Conference will
vary by District. In the Southern District of New York, for example,
depending on the priorities of the individual District Judge assigned
to the case, that date can be as little as two months after the
filing of the Complaint, or as long as one year. Thus, it is of
critical practical importance to know the practices of both the
court and the judge that your case is before, as these may impact
when the Conference is scheduled and thus when depositions may begin.
The key point, however, and one that is often overlooked, is that
one need not wait for the scheduling of the Initial Case Management
Conference to schedule the Rule 26(f) meeting of the parties. That
meeting can be scheduled, by agreement of the parties, at any time
after the filing of the Complaint.
So the bottom line on the timing of depositions is this: if you
need them, schedule and hold the Rule 26(f) meeting of the parties
as soon as all of the Answers are filed.
Of course, certain situations may require that depositions occur
even more quickly than allowed by Rule 26. When these situations
occur, there are three methods which can be used to allow a party
to further expedite the process to take depositions prior to conducting
a Rule 26 meeting of the parties. These methods are:
- filing a motion under F.R.C.P. 27 seeking a Court Order to
compel a deposition before the filing of a lawsuit due to exigent
circumstances; or
- immediately after filing a lawsuit, serving a Notice of Deposition
containing a certification, with supporting facts, that the person
to be examined is expected to leave the United States and be unavailable
for examination in this country unless deposed before that time
pursuant to F.R.C.P. 30(a)(2)(C). A Court Order is not needed
for this method;
- by obtaining a Court Order, immediately after filing a lawsuit,
for any other acceptable reason in the Court’s discretion.
III. OBTAINING THE TESTIMONY OF THE DEPARTING WITNESS
Historically, bills for depositions to perpetuate testimony were
well known in Roman law and in English chancery practice before
the adoption of the United States Constitution. Mason v. Goodburne,
Rep. Temp. Finch, 391, 23 Eng. Rep. 214, Ch. 1678; Story, Equity
Pleading, 2d Ed., Secs. 299-306. The principles of this English
chancery practice were written by the first Congress of the United
States into the Act of 1789, 1 Stat. 90, now embodied in 28 U.S.C.A.
§ 644, and was known as the de bene esse deposition statute.
Green v. Compagnia Generale Italiana Di Navigation, 82 F. 490, 494-495
(S.D.N.Y. 1897), aff’d,102 F. 650 (2d Cir. 1900). Today, as
noted above, there are two separate Federal Rules of Civil Procedure
which, regardless of the stage of the lawsuit, expressly provide
for immediate grounds to depose a witness who is feared to be departing
(either from the United States or, God forbid, from this earth).
Rule 27, which requires a Court Order, allows such a deposition
to be taken before a lawsuit is even commenced. The second method
is set forth in Rule 30 (a)(2)(C).
1. Testimony Obtained Through Rule 27
Rule 27, despite its invaluable provision allowing depositions
prior to the bringing of an action, is still one of the least utilized
but most dynamic discovery available in an admiralty case. To obtain
a Court Order permitting the taking of a Rule 27 deposition, the
requesting party must show:
- that the petitioner expects to be a party to an action cognizable
in a court of the United States but is presently unable to bring
it or to cause it to be brought,
- the subject matter of the expected action and the petitioner’s
interest therein,
- the facts which the petitioner desires to establish by the
proposed testimony and the reasons for desiring to perpetuate
it,
- the names or a description of the persons the petitioner expects
will be adverse parties and their addresses so far as known, and
- the names and addresses of the persons to be examined and the
substance of the testimony which the petitioners expect to elicit
from each.
F.R.C.P. 27(a)(1).
The purpose of Rule 27 is to serve as a means of perpetuating testimony
before trial. Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975), cert.
denied, 422 U.S. 66. A party seeking a deposition pursuant to Rule
27 must show that there is an immediate need to perpetuate the testimony.
Penn. Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1375 (D.C.
Cir. 1995). As a result, the petitioner must specifically demonstrate
that the testimony needs to be taken in advance of any action being
brought or it may be lost. See In re Checkosky, 142 F.R.D. 4, 7
(D.D.C. 1992). General allegations are not sufficient. Penn Mut.,
supra at 1375.
Rule 27 is not a substitute for broad discovery. Deiulemar Compagnia
di Navigazione S.p.A v. M/V Allegra, 198 F.3d 473, 485 (4th Cir.
1999); Ash v. Cort, supra at 912. The scope of Rule 27 has been
held to be less broad than that of Rule 26. See Penn Mut., supra
at 1376; Wright & Miller, supra at §2071; but see Martin
v. Reynolds Metals Corp.,297 F.2d 49, 55 (9th Cir. 1961) (left open
issue as to whether discovery under Rule 27 is as broad as that
under Rule 26). It is not to be utilized as a means to find facts
sufficient to support the bringing of a Complaint. Deiulemar Compagnia,
supra at 485; In re Stork, 179 F.R.D. 57, 58 (D. Mass. 1998) (“The
rule is not designed to allow pre-complaint discovery.”). The
rule is designed to be used in instances where, as a result of time,
a witness’ testimony may become unavailable, and is not to
be used to provide a method of discovery to determine whether a
cause of action exists, or against whom suit should be brought.
Petition of Gurnsey, 223 F.Supp. 359 (D.D.C. 1963); see, e.g., Petition
to Exstein, 3 F.R.D. 242 (S.D.N.Y. 1942) (petition denied as an
attempt to obtain discovery in order to find facts to bring a Complaint.).
A Rule 27 petition must demonstrate the facts that the petitioner
is seeking to establish via the deposition. Penn Mutual, supra at
1376; Deiulemar Compagnia, supra at 485. If the substance of the
testimony is unknown to the petitioner, the motion should be denied.
See In re Sitter, 167 F.R.D. 80, 82 (D. Minn. 1996).
Rule 27 requires that the party seeking the deposition demonstrate
that it is presently unable to bring an action in any court, either
state or federal, within the United States. Shore v. Acands, Inc.,
644 F.2d 386, 388 (5th Cir. 1981). However, courts have allowed
Rule 27 depositions where a petitioner raises Rule 11 concerns if
it were to bring suit prematurely, even though it may be technically
possible to bring suit at the time of its Rule 27 petition. See
In re Petition of Delta Quarries and Disposal, Inc., 139 F.R.D.
68, 69 (M.D. Penn. 1991); In re Town of Amenia, 200 F.R.D. 200 (S.D.N.Y.
2001).
If the court is “satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice,” it shall permit
the depositions to be taken. F.R.C.P. 27(a)(3). A reviewing court
will only reverse the district court’s decision to deny a Rule
27(a) petition for an abuse of discretion. Carey Canada, Inc. v.
Columbia Casualty Co., 940 F. 2d 1548, 1559 (D.C. Cir. 1991) (“We
may reverse the District Court’s discovery and evidentiary
rulings only if these rulings are an abuse of discretion.”)
(citing Viles v. Ball, 872 F. 2d 491, 494 (D.C. Cir. 1989); Brune
v. IRS, 861 F. 2d 1284, 1288 (D.C. Cir. 1988)); United States v.
Price, 723 F. 2d 1193, 1194 (5th Cir. 1984) (district court’s
ruling on Rule 27(a) motion reviewable for abuse of discretion);
Ash v. Cort, supra at 912.
Consider this common admiralty scenario: a trans-Pacific vessel
arrives at an East Coast port having just passed through heavy seas
and swell. The vessel lost several containers while at sea and arrives
with a series of crushed containers on deck. Counsel is contacted
by the insurer of the lost and damaged cargo who, of course, has
not yet been presented with formal claim documents much less paid
any claim. At the same time the vessel’s crew, who are Filipino,
are expected to be in port for only two to three days, after which
the vessel will leave the U.S. for ports unknown with future crew
rotations unknown.
This would appear to be the ideal circumstances to utilize Rule
27. Filing a lawsuit is neither feasible (nor always desirable)
as (a) the cargo insurer at this time arguably has no title to sue,
not yet having paid the claim and (b) documents are not yet available,
such as bills of lading which may contain package limitation defenses
which could seriously affect the economics of a full-fledged United
States law suit. By filing a Motion to Depose the vessel’s
Captain and First Mate under Rule 27 to establish the severity of
the weather encountered, the nature of the container securing utilized,
and the existence of any structural damage to the ship, evidence
is preserved, without the expense of a full-fledged litigation.
The Rule 27 request will usually be accompanied by a motion (normally
successful) to obtain the vessel’s documentation including
its rough logbook, before it is lost or rewritten into a smooth
log. Defense counsel is immediately retained and, the next day,
the depositions are taken. The results serve justice: the parties
have a witness with a fresh recollection, with original documents
available to refresh that recollection, and have now, within days,
put on paper detailed testimony about the true circumstances of
the loss.
The case law provides a number of additional factual scenarios
which are sufficient grounds to procure a Rule 27 deposition. These
grounds include:
(a) where a witness is elderly or in failing health. Texaco
Inc. v. Borda, 383 F. 2d 607, 609 (3d Cir. 1967) (71 year old witness);
De Wagenknecht v. Stinnes, 250 F. 2d 414, 417 (D.C. Cir. 1957) (permitting
deposition of 74-year old witness); In re Boland, 79 F.R.D. 665,
667 (D.D.C. 1978) (noting that age of proposed deponent is relevant
to Rule 27 petition, but denying petition on other grounds); Penn.
Mut., supra at 1375 (81 year old witness);
(b) where a witness plans to leave the United States. See e.g.,
In re Deiulemar Di Navigazione, S.p.A., 153 F.R.D. 592, 593 (E.D.
La. 1994); In re Boland, supra;
(c) where a vessel is planning to leave United States’ waters.
See In re Deiulemar Di Navigazione, supra (allowing Rule 27 perpetuation
of evidence from a ship that was scheduled to leave United States
waters three weeks after the petitioner was notified of an expected
indemnity claim); Ferro Union Corp. v. S.S. Ionic Coast, 43 F.R.D.
11, 14 (S.D. Tex. 1967) (permitting Rule 34 discovery from a ship
that was scheduled to leave port in four days).
Even more importantly perhaps, it has further been held that the
perpetuation of testimony under Rule 27 includes the inspection
of documents and things. Martin v. Reynolds Metals Corp, 297 F.
2d 49, 56 (9th Cir. 1961). And such Rule 27 testimony can also be
obtained “in aid of arbitration.” Oriental Commercial
& Shipping Co. v. Russell, 125 F.R.D. 398, 400 (S.D.N.Y. 1989).
A practical issue that arises, of course, is how to sufficiently
serve a petition under Rule 27 requesting a deposition in three
days. The courts have been eminently practical in this regard. See
Town of Amenia v. Town of Sharon, 200 F.R.D. 200, 204 (S.D.N.Y.
2001) (service of Rule 27 petition by facsimile permitted). Indeed,
in recent years, service of far more significant papers by facsimile
transmission has been approved. See e.g., Pacific Harbor Capital,
Inc. v. Carnival Air lines, Inc., 210 F. 3d 1112, 1115 (9th Cir.
2000) (order to show cause containing temporary restraining order);
United States v. Pelullo, 178 F. 3d 196, 199 (3d Cir. 1999) (notice
of filing of bankruptcy petition served upon U.S. Marshal to invoke
automatic stay against a judicial sale); Robinson v. Chavez, 2001
WL 296830 (N.D. Tex. 2001) (service of summons and complaint).
2. Testimony Obtained Through Rule 30
As noted above, Rule 30 (a)(2)(C) provides a method by which a
deposition may be taken without a Court Order if the Notice of Deposition
contains a certification, with supporting facts, that the person
in question is expected to leave the United States and thereafter
be unavailable for examination in this country unless deposed prior
to his or her departure.
Rule 30(a)(2)(C) was devised as a compromise between the admiralty
and general civil litigation bar regarding the taking of a witness’
deposition immediately after the commencement of an action without
court order. The old de bene esse (“to preserve testimony”)
statutes historically allowed depositions to be taken where a witness
was bound on a sea voyage, among other circumstances. Rev. Stat.
§863-865 (28 U.S.C. §§639-641, 1946 ed.). At the
time of the enactment of these statutes, leave of court was necessary
prior to conducting depositions. Under the de bene esse statutes,
it became common maritime practice to take depositions immediately
after filing a complaint to avoid the possibility of losing witnesses
to long ocean voyages while the plaintiff was obtaining court permission
to depose them. See Colby, Admiralty Unification, 54 Geo.L.J. 1258,
1261 (1966). With the unification of admiralty and civil procedure,
there was resistance from the admiralty bar to drop this method
of securing needed evidence in a timely fashion and reluctance on
the part of the general civil bar to adopt the practice of seeking
immediate depositions. See Wright, Proposed Changes in Federal Civil,
Criminal and Appellate Procedure, 35 F.R.D. 317, 332 (1964). A compromise
was reached with the drafting of Rule 30, intended to replace the
de bene esse statutes, and which applies to both suits in admiralty
and ordinary civil litigation. See generally Wright & Miller,
8 Fed. Prac. & Proc. Civ. 2d §2105.
Under Rule 30(a)(2)(C), the party seeking the exigent deposition
must certify to facts which demonstrate an urgent need for a deposition
to occur immediately, including, as the text of the Rule indicates
“that the person to be examined is expected to leave the United
States and be unavailable for examination in this country unless
deposed before that time.” Notably, although the Rule clearly
contemplates that a witness may later be able to be deposed in a
foreign country, this does not serve as reason to disallow the taking
of the deposition in this country without Court order by this method.
See Wright & Miller, supra at §2105.
A certification pursuant to Rule 30(a)(2)(C) must be signed by
the attorney for the party seeking the deposition, usually the plaintiff.
Although the Rule no longer specifically states that Rule 11 sanctions
apply to the certification (see 1970 version of Rule), Rule 26(g)
likely provides a basis for sanctions. See Wright & Miller,
supra at §2105.
Under F.R.C.P. 32(a)(3), any such deposition testimony taken (either
under Rule 30(a)(2)(C), Rule 27 or otherwise) can be utilized as
evidence at trial either by stipulation of the parties or without
such a stipulation if the Court finds at the time of trial that
one of the following circumstances exist:
(A) that the witness is dead; or
(B) that the witness is at a greater distance than 100 miles from
the place of trial or hearing, or is out of the United States, unless
it appears that the absence of the witness was procured by the party
offering the deposition; or
(C) that the witness is unable to attend or testify because of
age, illness, infirmity or imprisonment; or
(D) that the party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(E) upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with
due regard for the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used.
F.R.C.P. 32(a)(3)(A)-(E).
In an admiralty case - where a vessel’s officers, crew, managers
and surveyors are often located much further away from the courthouse
than 100 miles and sometimes can only be found across the globe
- more often than not, one of the exceptions set forth in Rule 32(a)(3)
will be met. In practice, this means that the depositions taken
in an admiralty case (which can, of course, be videotaped) will
often constitute some, if not all, of the trial testimony on the
plaintiff’s direct case (and possibly even the defense case).
Interestingly, these provisions of the Federal Rules seem to contemplate
that the circumstances referred to in Rule 30(a)(2)(C) may be so
exigent that some of the parties may not have time to even obtain
counsel. Under those circumstances, Rule 32(a)(3)(E) appears to
contemplate that the deposition should go forward nonetheless so
as to preserve the evidence, but further provides that the deposition
may not actually be utilized at the trial, if it can be demonstrated
by the party who lacked representation that they were unable despite
“the exercise of diligence” to obtain counsel to represent
them at the deposition.
3. Testimony Taken By Order To Show Cause And Subpoena
When time is of the essence due to a party’s impending unavailability,
one can also move by Order To Show Cause to promptly compel a deposition.
In the alternative, upon reasonable notice (usually at least five
days), a subpoena can be served on a non-party, or upon a party,
to compel a prompt deposition, since a subpoena has the same force
of law as a court order, and in the absence of the filing of a timely
motion for a protective order must be complied with or a party can
be held in contempt.
4. Testimony Taken in the Ordinary Course of the Lawsuit
In deciding whom to depose, one should not forget about friendly
witnesses or even the parties themselves. Even where exigent circumstance
do not exist, deposing these witnesses early on, regardless of the
condition of their status or health, ensures that their testimony
is not lost due to their future unavailability, loss of memory,
or the loss of their favorable leanings. Such testimony, which is
usually taken in the form of direct testimony, can be taken at any
time during the discovery process. The taking of such testimony
from a strongly favorable witness can have the dual effect of both
preserving the testimony, and demonstrating to an adversary the
strength of your position - sometimes leading to a favorable settlement.
IV. OBTAINING THE TESTIMONY OF THE DEPARTED WITNESS
There are two distinct ways to be a departed witness. The first
way is to depart the jurisdiction by way of ship, airplane or other
mode of transportation. The second way to depart the jurisdiction,
more unfortunately, is by way of funeral service. I will deal with
the first problem here; the expectation of the death of a witness
will be discussed infra in the discussion of unavailable witnesses.
1. Testimony Obtained Through Live Depositions
If a witness has departed the jurisdiction, the first question
is whether or not the witness has already arrived at another sovereign
nation, or is still on the ocean-going vessel. If the witness remains
on the vessel, there is a precedent for allowing the witness to
be deposed before reaching the next port of call.
In People’s Insurance Company of China v. Amalia Del Bene
et. al., an Eastern District of Louisiana case, (Civil Action No.
96-1088 (1996), unreported), a general cargo ship carrying grain
to China loaded cargo but then had an engine breakdown in Louisiana
waters. Temporary repairs were made and the vessel sailed out and
through the Panama Canal into the Pacific Ocean, where it suffered
another engine failure. Despite the ship’s location in the
middle of the Pacific Ocean, the shipowners made arrangements to
trans-ship the cargo from the vessel on to a second vessel, which
was to complete the voyage.
In this actual case scenario, we obtained an order for the crew
of the Amalia Del Bene to be deposed mid-ocean, while the trans-shipment
was underway. The Court took the position that it retained jurisdiction
over the vessel and the crew to compel the testimony based upon
the fact that the vessel had first called and loaded the cargo in
Louisiana waters. The lawyers and the court reporter had quite a
time being taxied out many miles into the Pacific Ocean, climbing
a jacob’s ladder up the side of a bobbing ship, crawling across
a gangway mid-ocean to get from the first vessel to the trans-shipping
vessel, and then conducting the depositions while the master and
crew continued to supervise the emergency cargo trans-shipment.
This serves to underscore the fact that, with respect to party
witnesses, so long as the United States Court has personal jurisdiction
over the party in question, the Court can order a foreign party
witness who has departed the jurisdiction (or was never there at
all) to travel to the United States for his or her deposition. Such
a power is now understood to be concomitant with the power to issue
a judgment, so that if personal jurisdiction exists in the Court
over a party, it also exists over the party’s witnesses to
compel discovery from them. Such a deposition can then be utilized
as testimony at trial under Federal Rule of Civil Procedure 32 (a)(3)(B),
supra.
When deciding whether or not to take a foreign deposition, keep
in mind, also, that in some Districts - such as the Southern District
of New York - the Court can require any party who takes a deposition
of a witness more than 100 miles from the Courthouse to pay opposing
counsel’s fees for one attorney per party. This Rule is not
frequently invoked, but potentially a powerful early cost-shifting
tool. See Usinor Steel Corp. v. Artemis, 1990 AMC 362 (S.D.N.Y.
1990) (noting that if the deposition is also needed by the other
parties, they may later be ordered to share the fees and expenses).
2. Testimony Obtained Through Written Deposition Questions
The service of written deposition questions upon a party is also
an available, but cumbersome, method of obtaining discovery. Note
that such answers are different from interrogatory responses - the
questions are put to the witness by a court officer and spontaneous
answers are recorded (although the questions themselves, having
previously been sent to opposing counsel, will presumably have been
discussed with the witness). The relevant Federal Rule of Civil
Procedure (Rule 31 (a)(4)) provides for a process that will take
at least 28 days just to get all of the questions answered, divided
as follows:
Within 14 days after the notice and written questions are served,
a party may serve cross questions upon all other parties. Within
7 days after being served with cross questions, a party may serve
redirect questions upon all other parties. Within 7 days after being
served with redirect questions, a party may serve re-cross questions
upon all other parties. The court may for cause shown enlarge or
shorten the time.
F.R.C.P. 31(a)(4).
V. OBTAINING THE TESTIMONY OF UNAVAILABLE WITNESSES
Inevitably, certain key witnesses, particularly third-party witnesses,
are practically unavailable to testify at trial. Nonetheless, these
witnesses can by various methods still be deposed and their depositions
utilized at trial. One such witness, no one would contest, is a
witness who is dying. Another is a witness who is located so far
from the jurisdiction that, in either the context of the economics
of the case, or, as a result of their inability to be located or
coaxed to travel, he or she is, for all practical purposes, “unavailable”
to be brought to trial.
Also included in this category are witnesses who are “unable”
to testify at trial, as defined in Rule 32 (a)(3)(C) “because
of age, illness, infirmity or imprisonment.” These witnesses
will need to be deposed and their deposition testimony utilized
at trial. Imprisoned witnesses, for example, can be ordered to be
deposed at their place of imprisonment, which usually will have
suitable rooms. See F.R.C.P. 30(a)(2).
Several methods are available by which a party may obtain testimony
of a person located abroad. Testimony may be sought from a party
located in a foreign country by means of stipulation, the Federal
Rules of Civil Procedure, or by the Hague Convention or other international
treaty. Additionally, pursuant to recent additions to the Federal
Rules of Evidence, testimony may be presented in the form of declaration.
Each of these methods are discussed in turn below.
1. Testimony Taken by Stipulation
When testimony is needed from a witness located abroad, the easiest
and possibly least expensive way to obtain such testimony is for
the parties to stipulate to the taking of testimony from abroad,
either by telephone, by video conference means, or in person --
subject, of course, to any individual country’s prohibitions.
Japan, for example, requires court orders and special visas in order
to take depositions and expressly prohibits the taking of depositions
for foreign lawsuits by telephone. (For a description of Japan’s
legal requirements, visit http://travel.state.gov/japan_obtaining_evidence.html).
Depending upon the country involved, other restrictions may exist.
Commonly, the parties can stipulate (or obtain a Court order) to
take a deposition by telephone (or teleconference). In some jurisdictions,
such as the Eastern District of New York, the Local Rules provide
that a request for such a telephone deposition of an adverse party
shall be presumptively granted. The reporter should be located where
the witness is located. In addition, such a deposition is deemed
taken under Federal law in the jurisdiction where the witness is
located, so that jurisdiction’s law of privilege rules, rather
than the trial forum’s laws, will apply.
2. Testimony Taken Pursuant to the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure set forth the methods by which
discovery is to be conducted in a case, and allow for a broad array
of discovery devices, including depositions (Rules 30 and 31), interrogatories
(Rule 33), document requests (Rule 34) and requests for admission
(Rule 36). These Rules may apply to foreign parties over whom the
court exercises jurisdiction. See, generally, Société
Nationale Industrielle Aérospatiale v. United States District
Court for the Southern District of Iowa, 482 U.S. 522 (1987). However,
The Hague Convention, which took effect in the United States on
October 7, 1982, also provides a means for evidence to be obtained
in a civil lawsuit pursuant to “Letters of Request” from
the judiciary of one nation to a designated authority in another
nation. An issue thus arises as to which body of law, the Federal
Rules or the Hague Convention, contains the appropriate discovery
methods to be utilized in a particular case.
In the Société Nationale case, supra, the Supreme
Court addressed the issue as to whether the Hague Convention provided
the exclusive procedures to be followed for pretrial discovery in
cases where the evidence was located in a foreign country. The Court
held that it did not; rather, where the foreign party was subject
to the jurisdiction of the court, it held that discovery may also
be obtained via the Federal Rules of Civil Procedure. Id. at 539-40.
Other cases have stressed that the Convention provides an alternate
means for obtaining evidence, and its procedures are neither exclusive
nor mandatory. Compagnie Francaise d’Assurance Pour Le Commerce
Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 26-28 (S.D.N.Y.
1984). Nor must the Hague Convention be the first resort for procedures
when discovery is sought from a foreign party. Id. at 542.
A court must examine the facts of a particular case to determine
whether it is more appropriate to take discovery abroad under the
Hague Convention or under the Federal Rules. Madanes v. Madanes,
199 F.R.D. 135, 140 (S.D.N.Y. 2001). The Hague Convention is an
optional procedure that may be utilized by a court after considering
1) the particular facts of the case, 2) the sovereign interests
involved and 3) the likelihood that resort to the Convention would
be an effective discovery device. Benton Graphics v. Uddeholm Corp.,118
F.R.D. 386, 388 (D.N.J. 1987). Other courts have noted that additional
factors to be considered when deciding whether the Convention’s
procedures should be utilized are the intrusiveness of the discovery
sought, special problems faced by the foreign litigant because of
its nationality or location of its operation, the importance of
the evidence sought, the degree of specificity of the request, whether
the information originated in the United States, the availability
of an alternate means of obtaining evidence and the competing interests
of sovereign states. See In re Asbestos Litigation, 623 A.2d 546
(Super. Ct. Del. 1992). Moreover, the party proposing the use of
Hague procedures has the burden of demonstrating the necessity of
the procedures. Doster v. Schenk, 141 F.R.D. 50, 51 (M.D.N.C. 1991).
In the Doster case, North Carolina plaintiffs sought documentary
discovery from a German contractor in products liability actions
pursuant to the Federal Rules of Civil Procedure. The German contractor
sought a protective order requiring the plaintiffs to seek discovery
under the Hague Convention instead. The Court applied the factors
listed above and held that in this case, discovery was proper under
the Federal Rules.
The Court noted that, under the facts of the case, the use of the
Federal Rules was warranted. The causes of action arose from injuries
allegedly sustained from the defendant’s construction activities
in this country, and therefore the defendant should have reasonably
expected the possibility of litigation here. Id at 52. The Court
scrutinized the discovery demands at issue and found that they were
specific and narrowly tailored to the litigation at hand; they were
“not so potentially harassing or of such a sensitive nature”
that the more formal Hague procedures were required. Id. at 53.
Moreover, the Court noted that if discovery were to become abusive
or unfair, the defendant had recourse to the protective devices
of the Federal Rules to shield itself from such abuse. Id.
As to the sovereign German interests at stake, the Court held that
the defendant failed to demonstrate that any such interests would
be compromised by the plaintiffs’ seeking discovery under the
Federal Rules. The defendant’s conclusory assertion that German
sovereignty was compromised without any showing in this regard was
insufficient in demonstrating compromised sovereignty requiring
resort to the Hague Convention procedures. Id. at 54.
The Court also examined the likely effectiveness of the Hague Procedures
in obtaining the requested evidence and noted that such procedures
were slow and expensive, and furthermore, that, as Germany had stated
that it would not honor requests for documents as set forth in Article
23 of the Hague Convention (see V(3) below), a request pursuant
to the Hague Convention would likely be futile. Id.
Lastly, the Court rejected the defendant’s argument that the
evidence was available from an alternate source, specifically, third
parties. The Court noted that obtaining this evidence from third
parties would be cumbersome and awkward and may present identification
and authentication problems. Id.
Thus, the Court concluded that, all factors considered, the Federal
Rules contained the appropriate discovery procedures to be applied
to the case. Compare, In re Perrier Bottled Water Litigation, 138
F.R.D. 348 (D. Conn. 1991) (applying Hague Convention and noting
that discovery sought from French defendant was overbroad and abusive;
France had sovereign interests which strongly disfavored the use
of the Federal Rules within its borders, and there was no reason
to believe that the Convention’s procedures would be ineffective
in obtaining the evidence the plaintiffs sought).
Although the Hague Convention procedures are not mandatory, in
certain situations, such as the Perrier case, supra, a court may
find that it contains the appropriate procedures to be utilized.
As the Convention is broader than the Federal Rules, in that by
its own terms it does not narrow itself to parties to a litigation,
it is an important method whereby testimony may be obtained abroad.
See Société Nationale, supra, at 541; S. & S.
Screw Mach. Co. v. Cosa Corp., 647 F. Supp. 600, 614 (M.D. Tenn.
1986) (noting that since United States courts lack sovereign power
to compel compliance by non-parties abroad, the Convention provides
the exclusive method of obtaining testimony from such persons).
3. Testimony Taken Abroad Pursuant to International Convention
In addition to seeking testimony to be taken abroad pursuant to
the Federal Rules of Civil Procedure, a party may utilize the procedures
set forth in the Hague Convention, or other convention, such as
the Inter-American Convention on Letters Rogatory to obtain such
testimony. This article will focus on the procedures set forth in
the Hague Convention.
The Hague Convention sets forth the rules for taking the testimony
of a witness abroad in a country which has enacted that Convention.
The Convention was envisioned as “a bridge between civil law
and common law practices for international judicial assistance in
the taking of evidence abroad." Amram, United States Ratification
of the Hague Convention on the Taking of Evidence Abroad, 67 Am.
J. Int'l L. 104, 105, 107 (1973). Of course, both nations must be
signatories to the Convention.
The Hague Convention allows for evidence to be obtained from both
parties and non-parties to the litigation. S. & S. Screw Mach.
Co. v. Cosa Corp., supra. This evidence can be in testimony form,
such as a deposition or interrogatory responses, or it can be documentary
evidence. (See Article 3 of the Convention). However, Article 23
allows a signatory country to forbid the use of the Convention to
obtain “pretrial discovery of documents as known in Common
Law countries”; thus, its use for obtaining documents may be
limited depending upon the country from which such documentary discovery
is sought. Under the Convention, evidence is obtained pursuant to
the judicial authority of the foreign country’s legal system.
The Convention sets forth the procedures to be utilized in obtaining
evidence abroad. Article 3 lists the information which should be
included in the “Letter of Request”, including the authority
requesting its execution and the authority such execution is requested
from (Article 3(a)); the names and addresses of the parties to the
proceedings and their representatives (Article 3(b)); and “all
necessary information” as to the nature of the proceedings
for which the evidence is required (Article 3(c)). Article 3 also
lists other information which, where appropriate, should be contained
in the Letter of Request, such as the questions to be put to the
persons to be examined (Article 3(f)) and the documents to be inspected
(Article 3(g)).
Article 9 of the Convention states that the judiciary in the country
receiving the request must apply its own law as to what methods
and procedures apply to the evidence obtained pursuant to the request.
It also directs a requested country to follow a request of the receiving
country to use a special method or procedure, unless that method
or procedure is incompatible with the requested country’s internal
law, or is impossible pursuant to that country’s internal practice,
or because doing so causes “practical difficulties.” Pursuant
to Article 10 of the Convention, the requested authority in the
foreign country must “apply the appropriate measures of compulsion
in the instances and to the same extent as is provided by its internal
law….” Thus, the Convention allows for the foreign court
to compel the production of evidence within its country, despite
the fact that the evidence is being produced for a matter abroad.
In executing a Letter of Request, a person may refuse to give evidence
if he or she has a privilege or duty to refuse to give the evidence
under the law of the state of execution (Article 11(a)), or, under
the law of the state of origin, and the privilege or duty has been
specified in the Letter (Article 11(b)). A signatory state may also
state that it will respect other privileges and duties existing
under the law of other States (Article 11(c)).
The state of execution may only refuse to execute the Letter of
Request if such execution does not fall within the functions of
the judiciary in that state (Article 12(a)), or the sovereignty
or security of the state of execution would be prejudiced by compliance
with the Letter of Request. (Article 12(b)). Article 12 also makes
clear that execution of a Letter of Request may not be denied on
the grounds that pursuant to the internal law of the state of execution,
it would have exclusive jurisdiction over the subject matter of
the action, or that such internal law does not recognize such a
cause of action.
The Letter of Request, as well as any such questions and statements,
must be translated in the local language, or English or French,
if the requested state so permits, pursuant to Article 4. Additionally,
all other documents that are to be “inspected” by the
witness pursuant to Article 3(g) must also be so translated.
One key point under the Hague Convention that is often overlooked
is that it is often not mandatory that the request go through diplomatic
channels. The advantage of instructing a foreign lawyer directly
to make the application is that it bypasses the diplomatic system.
In many countries, the diplomatic system is tediously slow, whereas
a foreign attorney can sometimes obtain an order within a matter
of days.
For example, in the United Kingdom the Letters Rogatory procedure
pursuant to the Hague Convention has been described as follows:
1. Upon application in the United Kingdom, order will be made only
when the request is for evidence in the nature of proof to be used
for the purposes of the trial. This is in contrast to evidence leading
to a train of inquiry which might produce direct evidence for the
trial. This is so even if the procedure of the United States court
allows for general discovery.
2. The witness is examined utilizing procedures as if the evidence
were being given at trial in England subject to any special methods
or procedure requested in the Letter Rogatory. Examples would be
requests for tape or video recording of the examination.
3. Thus, if a witness were to challenge an order, the fact that
the Letter Rogatory had been drafted to accommodate the limitations
imposed by English law will carry some weight with the High Court.
4. The person to whom the executed request is to be returned may
be stated to be the clerk of the particular United States District
Court, the attorney who initiated the Letter Rogatory or the English
lawyer who made the application to the High Court. The quickest
route in the United Kingdom to obtaining the testimony and/or documents
requested is to identify the English lawyer as the person to receive
the executed request.
Since each country has its own peculiarities with respect to the
practical side of obtaining answers to Letters of Request or Letters
Rogatory, to insure prompt and satisfactory results, local counsel
in each such jurisdiction may need to be consulted, at least initially.
In any given country, utilizing the Hague Convention or other international
convention can present special problems. As noted above, some signatory
countries (including the United Kingdom, France and The Netherlands)
forbid the use of the Convention to obtain documentary evidence
pursuant to Article 23 or have enacted “Blocking Statutes”
which may forbid the release of requested documents by the Court.
Procedures may differ significantly in many foreign courts, such
as the witness being questioned by the judge as opposed to the attorney.
See Société Nationale, supra at n. 26. As the Conventions
generally require a Letter of Request or Letter Rogatory to be issued
from one court to another, significant legal fees may be incurred
in following a particular country’s procedures, and additional
costs must be incurred to obtain translations of the relevant documents.
Nonetheless, the point is that the fact that witnesses may be located
in a foreign country does not mean that their testimony is necessarily
lost. Rather, if they are located in a country which is a signatory
to the Hague Convention or other Convention, their testimony may
still be obtained pursuant to those Conventions even if their testimony
is unavailable pursuant to the Federal Rules. Although cumbersome
and usually slow, these important methods of obtaining evidence
should not be overlooked by the maritime lawyer, since many admiralty
cases involve evidence located in several areas around the world.
4. Testimony Permitted By Declaration
When one is dealing with a cooperative witness in a geographically
undesirable location who is needed only to authenticate documentary
evidence, additional new rules as of 2000 are located in the Federal
Rules of Evidence. Under these evidentiary rules, the evidentiary
problem is solved through sworn declarations, whether the witness
is located domestically (F.R.E. 902 (11)) or in a foreign country
(F.R.E. 902 (12)). For example, with respect to foreign witnesses
and documents, F.R.E. 901 (12) states:
(12) Certified Foreign Records of Regularly Conducted Activity.-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) 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.
The declaration must be signed in a matter that, if falsely made,
would subject the maker to criminal penalty under the laws of the
country where the declaration is signed. A party intending to offer
a record into evidence under this paragraph must provide written
notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in
advance of their offer into evidence to provide an adverse party
with fair opportunity to challenge them.
F.R.E. 902(11), applicable to domestic witnesses, is nearly identical.
The ramifications of these two new rules of evidence (FRE 902
(11) and 902 (12)) for admiralty cases are significant. Since cargo
interests will typically make their prima facie case of delivery
to the carrier in good order and condition and receipt from the
carrier in damaged condition through documentary evidence, such
as packing lists, bills of lading and delivery orders, a large part,
if not all, of a prima facie cargo case can now potentially be proven
through declarations without resort to the expense and inconvenience
of bringing a live witness to testify.
How far in advance one must produce these declarations to opposing
counsel so as to provide a “fair opportunity” to challenge
them is left unclear by the rules. It is best to produce them sufficiently
in advance to the close of discovery so that the party challenging
the evidence has an opportunity to attempt to schedule a deposition
of the witness in question, if he or she considers the declaration
to be untrustworthy or otherwise so desires the right to cross-examination.
CONCLUSION
Given the nature of admiralty practice, a mastery of the rules
of taking testimony from departing, departed and unavailable witnesses
is an essential part of our trade’s craft - not to mention
of its heritage.
With such mastery you will, as Shakespeare predicts, no doubt have
all of your cases lead “on to fortune.” |