Imagine this: You have identified a key witness who has critical evidence for the success of your case. There’s only one problem: the witness resides overseas and you’ve never taken evidence abroad.
If you find yourself in a situation like this, your first thought may be to perform a Google search for “Hague Evidence Convention” or “Letter Rogatory and witness.” The Web is full of vendors who assert that taking evidence abroad is easy and that they can assist you with the process. This assertion is predicated on two unspoken assumptions:
- The witness will cooperate
- All you need is assistance with the mechanics of taking evidence abroad
Let’s examine these assumptions more closely.
Assumption: Overseas Witnesses Will Voluntarily Cooperate
It is true that many of the countries who are signatories to the Hague Evidence Convention (HEC), including the United Kingdom, Canada, and Mexico, allow evidence to be taken without any formalities from a witness who will voluntarily cooperate. In addition, several other countries who are signatories to the HEC including Spain and France have streamlined procedures for taking evidence from cooperating witnesses.
But, is this information truly representative of taking evidence abroad? Not really.
Reality: Overseas Witnesses Rarely Provide Voluntary Evidence
Voluntary depositions are just that: voluntary. If you fly to another country to depose an individual and the deponent is a no-show, there’s not much you can do — and the vendors who arranged for transcription, videography, and interpretation will still need to be paid.
Most corporate third-party witnesses will not voluntarily cooperate. Additionally, most countries that are not signatories to the HEC (i.e., those countries subject to a Letter Rogatory  for evidence taking), either do not permit voluntary depositions (e.g. Chile, Russia) or have highly complex procedures that effectively prohibit the taking of a voluntary deposition (e.g., Japan).
Accordingly, it is only in the rarest of situations that evidence abroad is actually taken voluntarily.
As a rule of thumb, evidence abroad will need to be taken pursuant to HEC procedures or a Letter Rogatory.
Assumption: You Only Need Help with the Mechanics of Taking Evidence Abroad
Most online vendors who advertise their assistance with taking evidence abroad only provide assistance with the mechanics of the deposition; i.e. transcription, videography, and interpretation. These vendors will look after an attorney’s best interest by ensuring that:
- The attorney’s team members have the proper visas
- Videographers and transcriptionists arrive with equipment that will plug into the wall (if a local vendor is not hired, there is no guarantee that plugs on the equipment will fit the local wall socket)
- A proper room for consulate depositions is obtained
- Evidence is gathered properly. (For example, certain states including Pennsylvania, Michigan, Montana, and Virginia have statutory requirements that videography be indexed down to the second. Not all video cameras have this capability.)
Reality: You Also Need Assistance with the Procedural Aspects of Taking Evidence Abroad
All these mechanical considerations are important and when it comes to these aspects of taking evidence abroad, there are many good vendors in the market. However, if you need to take evidence abroad you’ll need assistance with the procedural aspects as well.
Some of these procedural aspects include:
- Drafting a well-written Letter of Request or Letter Rogatory
- Obtaining cross-examination of the witness
- Obtaining physical evidence
- Obtaining evidence from a Chinese manufacturer (which requires insight into Chinese law and judicial system)
- Obtaining evidence from Russia (where the type of evidence sought must be determined as pertaining to a civil or commercial matter)
- Recognizing situations where evidence is better taken under Aérospatiale, than pursuant to the HEC
In truth, very few vendors offer to assist attorneys with the procedure for taking evidence abroad. LLS is one of the only vendors that has successful experience with assisting attorneys in negotiating the procedures for taking evidence abroad. If you require assistance beyond the mechanics of depositions when taking evidence abroad (including drafting Letters of Request/Letters Rogatory, vetting with local counsel, and help with foreign law) contact us today.
 Substantively, a Letter of Request and a Letter Rogatory for taking evidence serve the same function; and have largely the same overall structure. The key differences between a Letter of Request and a Letter Rogatory for taking evidence is their transmission to the appropriate overseas court. Further discussion of the distinction between a Letter of Request and a Letter Rogatory for taking evidence is beyond the scope of this communication.
 This statement assumes that the witness is not a party to the litigation since the forum court can take evidence from an overseas litigant. See Aérospatiale v. US District Court for the Southern District of Iowa, 482 U.S. 522 (1987).
 It is important that a proper room for a consulate deposition be obtained due to: (1) Department of State (DOS) security issues; and (2) DOS fees. Many countries that allow US attorneys to take voluntary depositions require that any such deposition be taken at a consulate. However, many consulates do not have rooms for depositions and while embassies do have rooms, you may need to wait as much as 9 months for a room to be available.