Depositions have been especially hard during the pandemic. Luckily, the quick proliferation of Zoom and its competitors have made it possible to take remote depositions that roughly approximate the experience of angrily objecting across a conference table.
International depositions, however, have remained problematic. In the past, witnesses could simply be shuffled from a country with hugely restrictive deposition procedures to a more friendly jurisdiction -- be it the Netherlands, the UK, a consulate, or even beautiful Delaware.
Travel restrictions and the closing of consular offices have made this a non-starter in many cases and so there has been a bit of a resurgence in proceedings under the Hague as parties struggle to get what discovery they can under the circumstances. Although this is obviously a bit of a pain, it does have the pleasant side-effect of causing a few new rulings on which foreign deposition procedures are close enough to U.S. depositions to not give one party an unfair advantage.
On Monday, Judge Fallon reviewed the deposition procedures available in Germany in Fraunhofer-Gesellschaft Zur Forderung der angewandten Forschung e.V. v. Sirius XM Radio Inc., C.A. No. 17-184-JFB-SRF, D.I. 414 (D. Del. Mar. 8, 2021). In that case, the German Court had rejected a Hague request as inconsistent with German law, specifically noting the following three issues:
Cross-Examination Is Forbidden
The German Court noted in its letter that "cross-examination is incompatible with German law and therefore . . . cannot be approved." Id., D.I. 403, Ex. A. The parties disputed exactly what part of cross-examination was not allowed, but Judge Fallon eventually concluded that “'German and continental civil procedure has no regard for cross-examination. The Code of Civil Procedure allows a witness to give an independent account and only then to be asked additional questions, primarily by the court and only secondarily by the parties' . . . 'Leading questions for example are not admissible.'” Id., D.I. 414 (quoting the defendant's German law declaration).
Judge Fallon found this procedural difference fatal, noting that it raised a "legitimate concern that the bar on cross examination 'will afford Fraunhofer a preview to SXM’s line of questioning and time to prepare an answer, creating a tactical advantage for Fraunhofer over SXM.'” Id. at 4-5 (quoting D.I. 406 at 11).
The Court Reporter Would Have to Serve as a "Commisioner"
The German Court rejected the initial request which would have allowed the parties to act as their own "commissioners" and essentially run the deposition themselves. Instead, they were required to appoint an independent third party (the Court suggested a court reporter) to serve as a commissioner. The Court found this requirement "untenable," noting that the commissioner was charged with "preserving the personal rights of the witness" and that doing so while accurately transcribing the deposition was practically impossible.
No Video Recording of the Deposition
Surprisingly, although the German Court specifically noted that holding the deposition via teleconference was perfectly fine, recording the deposition was not allowed. This factor appeared to affect the calculus significantly less than the prior two, with Judge Fallon merely noting that "the better course in this particular case is to proceed with the depositions in a manner consistent with the options available under the Federal Rules of Civil Procedure." Id. at 6.
So there we have a few data points for foreign deposition proceedings infirm enough to give the party that doesn't have to use them a tactical advantage—use it in good health.
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