It’s usually the case that international litigation differs from US litigation, and identifying corporate witnesses while taking evidence abroad is no exception.
Designation of a Representative Witness Within the US
US litigants are likely very familiar with the way in which an unknown corporate representative is identified and asked to attend a deposition in domestic litigation.
The operative rule in US matters is Federal Rule of Civil Procedure 30(b)(6), which provides in relevant part the following:
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization.
It is important to note that US rules places the burden of identifying a responsive witness on the company or organization that is being requested to provide a witness pursuant to F.R.C.P. 30(b)(6).
US courts view this approach as a way to streamline the discovery process and help make the deposition testimony more meaningful and useful, especially when the company or organization is large and could conceivably have dozens of witnesses who might be able to provide testimony relevant to the subject matter of the deposition notice.
Designation of a Representative Witness Outside the US
As with most things, the designation of company witnesses in an international litigation setting is much different than what US litigants are accustomed to pursuant to F.R.C.P. 30(b)(6). When taking evidence abroad, many attorneys come to LLS and simply ask that we assist them in obtaining the deposition testimony of the “person(s) most knowledgeable” within a foreign company regarding subjects important to the litigation.
Unfortunately, no judicial system outside the US has a direct analog to our Rule 30(b)(6).
US counsel must, therefore, undertake an investigation before they even start the process of requesting a representative witness’s testimony to determine who they should name in their Hague Evidence Convention Letter of Request or letter rogatory.
How US counsel ascertains exactly whom they should identify as a witness is a complex problem. Counsel must find out who is best able to address all of the matters they want to discuss during the deposition while at the same time recognizing that the best witness may be completely unknown to them at the start of this exercise.
As part of this effort, US counsel must also make a decision if they want to keep their investigation unknown to the foreign company or if they want to reach out to the company to see if they can get some assistance in identifying the best person to be the company’s representative witness. This is, of course, a question of strategy that must be determined on a case-by-case basis.
Legal Language Services has a wealth of experience in these types of cases and can assist you in determining the best path to take when you need to depose a company witness abroad. Contact us today to learn more.