Deposition service for US clients
DWFM Beckman has extensive experience in supporting US law firms and clients in depositions and the production of documents and Court Orders for use in US proceedings.
The depositions of witnesses for the taking of oral testimony and production of documents can be undertaken in England and Wales either by agreement with the witness or pursuant to a subpoena by Order of the High Court in London.
The United Kingdom is party to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. The Convention provides that a US Court may request via a formal Letter of Request of Letter Rogatory that the High Court in London appoints an independent examiner to obtain oral testimony and/or documents from witnesses in England and Wales. Whilst the English procedure appears straightforward the process is strict. We recognize that it is beneficial for our clients to appreciate the English process at the time that the Letter of Request or Letter Rogatory is sought in the US Court to avoid the expense of failed applications and wasted transatlantic travel expense.
There are a number of issues that an applicant seeking an order for English Court Order in this area should be aware of. Examples of these issues are:
- The discovery stage is dealt with differently in the English and US legal systems. The English Court will not as a matter of course allow for a wide discovery exercise to be undertaken. It will actively seek to avoid any “fishing expedition” to assess evidence. The Letter of Request must be drafted carefully to identify the documents that are reasonable to obtain as this will form part of the application to the English Court and be set out in the English Order.
- The issues and questions put to the witness at deposition hearing pursuant to an English Order can be limited to only those that are identified in the Letter of Request.
- A Records Custodian in England may not be qualified or able to answer questions in oral evidence as to the documents produced other than to authenticate them.
- Where the application to the High Court for an Order is made without notice then either the opposing party or deponent can apply (typically within 7 days of service of the Order) to stop, vary or limit the procedure.
- Where a witness fails to attend a deposition, further proceedings and personal service of a further Order may be immediately required to secure attendance.
- Unless specific provision is made to the contrary, the applicant for the subpoena is bound by the English rules of evidence in relation to leading the witness in questioning and cross-examination of evidence.
- The rules of privilege differ between the English and US legal systems e.g. in relation to Attorney correspondence and communications. Privilege may be claimed by a witness under English privilege, US privilege or both jurisdictions.
We are able to provide guidance as to the drafting of the Letters of Request/Letter Rogatory sought and arrange all aspects of deposition taking at our offices in central London to include:
- Drafting and strategic advice
- Tracing, locating witnesses in the United Kingdom
- Communications with witnesses for voluntary deposition taking and production of documents
- Sourcing expert witnesses for deposition evidence and advice
- Applying for Court Supboenas for depositions by oral testimony and production of documents as agent for the US Attorney
- Advising on drafting of authorities for disclosure of documentation within proceedings
- Arranging process serving of orders and witness conduct monies, and advising as to payments
- Arranging court examiners, court reporters, video conferencing facilities and audio recording at deposition hearings
- Providing a full range of office space facilities and on-call advice and support to US Attorneys during depositions
- Advising upon and auctioning immediate enforcement action where deponents object to Orders or fail to attend deposition hearings
- Lodging transcribed depositions with the High Court for approval and onward transmission to the US Courts
We have consistently achieved and delivered excellent results in our Deposition Service over the years. For enquiries please contact Elizabeth Johnson for further information by email or telephone (for enquiries made out of UK office hours please use the following number: +44 (0)7931 337585).