As with most jurisdictions, in the process of litigating in the USA the parties go through a fact gathering, or 'discovery', phase. This may include the taking of depositions (an oral statement from a witness, under oath, before trial) or interrogatories.
If the relevant witness is out of the jurisdiction, then support needs to be obtained within that jurisdiction to facilitate this process or even to safeguard the interests of the witness in question. For example, depositions of witnesses and the production of documents in support of US proceedings can take place in England & Wales. This can happen either with agreement as a voluntary deposition or pursuant to an order of the High Court.
Such an order is obtained by filing a Letter of Request or Letter Rogatory with the English Court setting out the questions to be raised or the documents to be requested and why these are relevant. Care must be taken with drafting this document as the English Court will not allow fishing expectations and will require the issues and/or documents to be carefully identified and relevant. In addition, documents requested must be in the individuals control and the information provided can only be used in the context of the litigation in which it is requested.
The Court will then, if satisfied, make the order and an independent examiner can be appointed.
Legal assistance can be provided during the course of the deposition on whether questions are allowable given the remit of the deposition. Only questions regarding the issues raised in the Letter Rogatory, and in turn set out in the Court Order, can be asked. Further, the usual principles of the English Court apply when it comes to the procedure of asking the questions. Leading questions and cross examination are not usually allowed unless your opponent has applied for the deposition. Again, we can advise on both sides of this process.
Even with voluntary depositions assistance can be given in providing independent legal advice to the witness being deposed. Witnesses may have to consider their own interests in terms of confidentiality obligations and exactly what information can be offered on a voluntary basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
