Depositions of Party Witnesses. The procedures for taking depositions of Japanese witnesses diverge depending on the status of the witnesses and whether they are associated with a party in the litigation. Depositions of litigation parties are governed by Fed. R. Civ. P. 30. In addition, most local rules and/or practice of U.S. District Courts require plaintiffs, who have invoked the court’s jurisdiction to resolve the dispute, to appear in the judicial district where the action is pending for depositions. This means that if the plaintiff is a Japanese entity, then its officers, managing agents, and witnesses who testify for the plaintiff under Fed. R. Civ. P. 30(b)(6) can be compelled to travel to the United States to give testimony in the local jurisdiction.
Typically, a defendant is not subject to these requirements unless it has asserted one or more counterclaims in the case. Thus, a Japanese defendant that has not asserted counterclaims ordinarily will not be required to produce witnesses in the United States. The court can compel both Japanese plaintiffs and defendants to produce their employees for deposition. However, those depositions typically occur where the witnesses reside or where they are employed, which means that the depositions are conducted in Japan.
Conducting depositions in Japan involves a somewhat complex and cumbersome procedure that requires some advance planning, coordination with opposing counsel, and involvement of the U.S. district court and U.S. State Department. The Japanese government is resistant to the appearance of U.S. courts exercising jurisdiction over Japanese citizens while in Japanese territory. As a result, it is technically not possible to take depositions “in Japan.” However, the Japanese government will permit its citizens to voluntarily appear for deposition at the U.S. embassy and consulates in Japan, which are thought of diplomatically as “U.S. territory.”
This concession is monitored by the Japanese government through its visa requirements. In order to enter Japan to conduct a deposition at the embassy or consulate, an attorney must obtain a special “deposition visa” for that purpose, first by obtaining a “commission” from the U.S. court to take the deposition and then by submitting the commission, deposition visa application, and U.S. passport to the local Japanese embassy in the United States. Currently, only the U.S. Embassy in Tokyo (one, narrow room adjacent to the public visa services waiting area) and the U.S. Consulate in Osaka (two, more private upstairs rooms) offer conference rooms for depositions.
The demand for the deposition rooms can be high, and scheduling the rooms through the embassy and consulate is something that should be done as soon as possible in the case. Moreover, given the distances to travel and the complex procedure, it is usually best to schedule as many depositions as possible into a single trip. Additional information about deposition visas, scheduling, fees, and other information can be obtained from the U.S. Tokyo Embassy website.
As a consequence of these constraints, parties often seek ways to avoid the procedural burdens of conducting depositions in Japan. The most common question that arises is whether depositions can be conducted by telephone or videoconference. Telephone and videoconference depositions are not permitted, even if the parties and the witness are all willing to participate. Often the best compromise is to conduct the depositions on U.S. soil, either in Hawaii or Guam. Given its location in the same time zone as Japan and the short 3.5 hour flight from Tokyo, Guam is often an ideal compromise as an alternative location for depositions of Japanese witnesses.
Depositions of Non-Party Witnesses. In the U.S., depositions of non-party witnesses can be compelled by subpoena under Fed. R. Civ. P. 45. However, Rule 45 subpoenas are ineffective in obtaining testimony from non-party witnesses located in Japan. Instead, the testimony of a non-consenting Japanese witness may be obtained through letters rogatory, a request from the U.S. district court through diplomatic channels to the Japanese courts. The letter request provides background about the case and a list of topics on which testimony is sought from the targeted witness.
In the past, these letter requests took a long time to execute and were often unsuccessful in obtaining testimony. In recent years, the process has been more successful and often results in testimony in a matter of a few months. Ultimately, the letter request is delivered to the local Japanese district court in which the witness resides. The local court exercises substantial discretion in how the testimony is taken. On rare occasion, the local court has permitted Japanese counsel for the parties to question the witness. More often the judge conducts the examination of the witness based on the topics indicated in the letter request without cross examination or follow up by the parties. A verbatim transcript of the proceeding can be requested, but there is no guarantee that the court will grant the request. Often, the court will prepare a summary of the testimony.
The admissibility of such testimony is often challenged but those challenges must overcome Fed. R. Civ. P. 28(b)(4) which acknowledges the difficulties of testimony procured through foreign courts. According to Rule 28(b)(4), foreign testimony may be admissible even if it was not taken under oath, there was not an opportunity for cross examination, or a verbatim transcript was not prepared. The Advisory Notes to Rule 28(b)(4) explain that such procedural defects should affect only the weight accorded the testimony, not its admissibility.
Most courts considering these issues have ruled that even in the absence of cross examination, the less robust foreign court procedures are sufficient to, at least, admit the testimony. See, e.g., United States v. Salim, 855 F.2d 944 (2d Cir. 1988) (counsel not permitted to attend judge’s interrogation of witness based on counsel’s questions); United States v. Trout, 633 F. Supp. 150 (N.D. Cal. 1985) (cross examination questions submitted in advance before witness testified).