Q: I represent the plaintiff in civil litigation currently pending before a federal court in the United States, and the testimony of a non-party witness residing in Germany is essential to the development of our case.
What kind of record of the witness’s oral testimony will the foreign court produce and will this record be admissible in the US court? Can I get a verbatim transcript? What about using a videographer? How does it work if the witness does not speak English or if for other reasons testimony will be taken in a foreign language?
A: Rule 28(b)(1) of the Federal Rules of Civil Procedure provides for the taking of a deposition in a foreign country “(A) under an applicable treaty; (B) under a letter of request, whether or not captioned a ‘letter rogatory’; (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony.”
Rule 28(b)(4) provides that “[e]vidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States.” (Emphasis added.)
Both the United States and Germany are signatories to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), which represents the “applicable treaty” under Rule 28(b)(1)(A) above.
Unlike the Hague Service Convention, which the US Supreme Court has ruled is mandatory and exclusive in all instances where it applies, the Hague Evidence Convention is considered to provide an additional means by which the parties may collect evidence abroad.
However, from the German perspective, the use of the Hague Evidence Convention is mandatory with respect to evidence taken in Germany for foreign proceedings. There is a line of US cases challenging the exclusivity of the Hague Evidence Convention, but these cases are beyond the scope of this discussion. Also beyond the scope of this discussion is a narrow exception by which the German Foreign Office stated it will not object to questioning of German or other non-US citizens by US consuls if certain prerequisites are fulfilled.
Thus, for purposes of this discussion, the analysis is limited to the taking of oral examinations in Germany pursuant the Hague Evidence Convention, Chapter I (compulsory evidence taking) or Chapter II (voluntary evidence taking). Chapter II of the Convention is a more streamlined means to gather evidence, but is only available if the witness is cooperative.
The mechanics of Chapters I and II of the Hague Evidence Convention in Germany are presented below.
Chapter I — Formal Examination of a Witness before a German Judge
Chapter I of the Hague Evidence Convention provides for the use of a Letter of Request, or commonly a “Hague Request,” to gather evidence, whether in the form of oral or written examination or requests for documents. Article 9 of Chapter I to the Hague Evidence Convention stipulates:
The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.
However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.
A Letter of Request shall be executed expeditiously.
Pursuant to Article 23,
A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.
And, pursuant to Article 33, a Contracting State may require translation into its official language(s).
In this case, the Germans declared they will execute Requests only if written or translated into German, and that Requests issued for the purpose of obtaining pre-trial discovery as known in common law countries will not be executed.
Finally, pursuant to Article 9, the German courts have generally ruled that many discovery procedures used in the United States are incompatible with German law.
The German courts, like those in most civil law countries, take a dramatically different approach to evidence gathering than the approach with which American lawyers are familiar. For example, the courts in Germany will not tolerate wide-ranging discovery, or what is derisively referred to as a “fishing expedition.” Thus, it is important to be aware that the witness’s testimony will be taken under German rules, in the manner directed by a German judge.
Typically, a German judge will not permit counsel to directly ask questions of the witness. Rather, the judge will examine the witness based on questions submitted with the Request. Similarly, opposing counsel must include any questions for the witness in counsel’s responses to the Request — cross-examination is unknown in German proceedings.
Depending on the judge, counsel may be permitted to submit written follow up questions. The judge will almost certainly examine the witness in German, even if the witness speaks English. Unlike courts in the United States, the German judge will not entertain objections during oral examination — the German judge reviews submitted questions in advance and reframes or rejects any questions he deems objectionable.
Again, depending on the judge, it may or may not be possible to arrange for a verbatim transcript to be taken. Requests that a special method or procedure be followed in the taking of evidence are presented pursuant to Article 9(2) of the Hague Evidence Convention.
The official position of the German authorities is that witnesses are not provided with an advance copy of the questions as contained in the Hague Request. However, it is Legal Language’s experience that witnesses often receive advance copies of the questions so the witness can prepare for the examination.
Another interesting fact about witness testimony in Germany is that the witness is to be given the opportunity in the first instance to present his perceptions on the subject on which the evidence is to be given in summary form. It is Legal Language’s experience that this opening statement can easily take an hour. Given that the court is unlikely to allow more than six hours total for the examination of a single witness, this can severely cut into the time available for a witness’s examination.
Unlike courts in the United States, where a witness’s verbatim testimony is transcribed by a court reporter, a German judge typically dictates a summary of the witness’s testimony and returns this summary as a record to the US court. Alternatively, a minute taker makes a summary of the proceedings, which the judge signs and returns to the US court.
Minute takers are trained specialists used for this purpose in Germany and throughout much of Europe. Court reporters are relatively unknown in Germany and there may be resistance from the German judge to admitting one to the hearing. At a minimum, it will be necessary to explain to the judge how the use of a court reporter differs from that of a minute taker, why the US judge will prefer a verbatim transcript, and how the use of a court reporter will impact the judicial proceedings.
Requests for a special method or procedure to be followed in the taking of evidence under the Hague Evidence Convention must be made pursuant to Article 9(2) of the Convention. Various Central Authorities in Germany, in response to Article 9(2) requests, have carried out the following special methods or procedures:
(A) witnesses are only interrogated under oath in principle,
(B) a record is made (presumably a verbatim transcript), and
(C) a video/audio recording is made of the interrogation; while the following special method or procedure was not carried out: cross-examination.
However, the courts in other jurisdictions, as well as other courts in the same jurisdiction, are not bound to honor these special methods or procedures.
Assuming the German judge is agreeable to allowing a verbatim transcript, there will be a number of logistical hurdles in a Chapter I examination. These hurdles are best appreciated by briefly describing what Legal Language does in order to have a verbatim transcript prepared in connection with a typical, one-day deposition.
First, because most German judges are unfamiliar with what is involved, it is necessary to explain the logistics to the judge and obtain his consent. Because the deposition will be conducted entirely in German while the transcript will be in English, we utilize simultaneous interpreting services.
Simultaneous interpreting is very challenging for the interpreter and it is often necessary to use two interpreters, who take turns interpreting, switching back and forth every 15 minutes. To avoid disrupting the proceedings, LLS brings in a portable, soundproof booth where the interpreters will sit throughout the proceedings.
The judge, the witness and the interpreters wear headphones and speak into a microphone. The interpreters interpret English to German as well as German to English. A court reporter sits in the room with headphones to hear and transcribe what the interpreters are saying. Likewise, English-speaking attorneys and members of the audience wear headphones to hear what the interpreters are saying.
As previously mentioned, the German judge is unlikely to allow more than six hours for the examination of a single witness. Thus, it is usually not advisable to use consecutive interpreting, which usually requires only one interpreter and is likely to cost less than simultaneous interpreting, which generally requires two interpreters.
Consecutive interpreting (where a question is asked and the parties pause to hear the English interpretation before the answer is given, and then interpreted, and so forth) is seldom considered to be a viable alternative. Consecutive interpreting significantly slows the examination and tends to disrupt the flow of the proceeding.
If the German judge refuses to allow a verbatim transcript, an audio or audiovisual recording of the proceeding may be requested for the benefit of the court in the United States. Any such request should be included in the Hague Request issued by the court in the United States. It has been Legal Language’s experience that most courts in Europe will refuse audio or audiovisual taping of the proceedings, although the court may find the idea of an audio-only recording somewhat less objectionable.
Even the simple matter of returning the final transcripts presents special challenges that should not be overlooked. For example, because court reporters are generally unknown in Germany, it is likely the court reporter and the witness will be from different cities. The court reporter will prepare the verbatim transcript at his or her office and then ship the transcript to the witness for review and signature, together with instructions for returning the signed transcript to the court reporter. Additionally, the German judge may demand to see the signed examination transcript before it is shipped overseas.
Finally, if there are a large number of attorneys involved, and if each attorney has asked for a copy of the transcript, and if there are a large number of exhibits attached to the transcript, it is not uncommon to ship Bankers Boxes full of papers overseas for express, overnight delivery. This can be costly both in time and money.
Chapter II — Voluntary Examination of a Witness in Germany
Chapter II, Articles 15 and 16 of the Hague Evidence Convention provide for the taking of evidence without compulsion.
Article 15 provides that a diplomatic officer or consular agent of one Contracting State (the “Originating State”) may, within the territory of another Contracting State (the “Destination State”) in which he exercises his duties, take evidence without compulsion of nationals of the Originating State, in aid of proceedings commenced in the courts of the Originating State.
The Destination State may declare that evidence may be taken pursuant to Article 15 only if permission is given on application to the appropriate authority in the Destination State. Germany has made no declaration with respect to Article 15 and therefore authority is not required to take a “consular deposition” of a US national (there is no provision under US law for the taking of depositions before a diplomatic officer).
However, based on bilateral agreements between the United States and Germany, the German Ministry of Justice must pre-approve all requests for depositions, and all such depositions must take place on the Consulate grounds, with oaths to be administered by a US Consul.
Article 16 provides that a diplomatic officer or consular agent of the Originating State may, within the territory of the Destination State in which he exercises his duties, may also take evidence, without compulsion, of nationals of the Destination or of a third State, in aid of proceedings commenced in the courts of the Originating State, provided that:
(A) a competent authority in the Destination State has given its permission either generally or in the particular case, and
(B) he complies with the conditions which the competent authority has specified in the permission.
The Destination State may also declare that evidence may be taken under Article 16 without prior permission. Germany has declared that the taking of evidence by diplomatic officers or consular agents is not permissible in its territory if German nationals are involved (it would be necessary to rely on Chapter I, even if the German national is a willing witness).
With respect to nationals of a third State or with respect to stateless persons, Germany has declared that the taking of evidence by diplomatic officers or consular agents shall be subject to permission from the Central Authority of the Land where the evidence is to be taken. Again, based on bilateral agreements between the United States and Germany, the German Ministry of Justice must pre-approve all requests for depositions, and all such depositions must take place on the Consulate grounds, with oaths to be administered by a US Consul.
If the witness is prepared to testify on a voluntary basis, many of the challenges of a Chapter I examination are avoided altogether.
First, it is unnecessary for the examination to be conducted by a German judge — the parties can conduct an American-style deposition, with counsel examining, and opposing counsel cross-examining, the witness directly.
Second, assuming the witness speaks English, and does not object to being examined in English, it is unnecessary to engage the services of interpreters or to address the logistics of simultaneous interpretation.
While it is clearly beneficial to obtain a verbatim transcript of the deposition, this may prove impossible to obtain if compulsion is required. Likewise, the German court is unlikely to allow an audio or audiovisual record of the proceedings, which would help to overcome many of the objections likely to arise if there is no verbatim transcript.
Thus, a summary of the witness’s testimony as prepared by either the judge or a minute taker may be all that is provided to the court in the US. Pursuant to the express language of Rule 28(b)(4) of the Federal Rules of Civil Procedure, which has also been incorporated into many State codes of civil procedure, the deposition testimony should be allowed in federal (and most state) courts, absent a showing that the summary of testimony is somehow unreliable. Many of these problems can be avoided if the witness is cooperative.
Legal Language also provides interpreting services, including simultaneous interpreting, and assists with oral examinations involving witnesses examined in another language.