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Taking a Deposition Abroad - It's Not Mission Impossible

LexisNexis PSL, Dispute Resolution

Adam Miller, John Troost, Elizabeth R. Bailey

Imagine that your client, a multi-national enterprise, is the target of an investigation by the US government into violations of the Foreign Corrupt Practices Act. All of a sudden, plaintiffs' lawyers are circling in federal and state courts, looking to make a civil case out of any alleged improprieties. Now imagine that some of the key third-party witnesses your client may need to exonerate itself live and work abroad, beyond the subpoena power of any US court. Sound like a hopeless situation? Not necessarily. Rule 28(b) of the Federal Rules of Civil Procedure (FRCP) (and many corresponding state rules of civil procedure) allows depositions to be conducted overseas for use in US courts.

The procedures that govern these overseas depositions are set forth in a patchwork of treaties, conventions, and foreign laws, which vary from country to country. Together, these rules may give your client a lifeline to gather the testimony of its crucial overseas witnesses. This article will guide you in how to take advantage of that lifeline, while pointing out some of the potential pitfalls (and there are many) that you may encounter along the way. We focus on third-party witnesses because US courts generally may compel a party to make witnesses within its control available for deposition in the US.

Originally published on LexisNexis PSL, Dispute Resolution. Reprinted with permission. 

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