Taking Depositions for use in International Commercial Litigation: German requirements

by Anna Engelhard-Barfield

excerpted from ABA Section of International Law Newsletter, Issue 7, September 2013


Taking depositions of witnesses in Europe is quite different  from  taking depositions  in the U.S.   The Hague Evidence Convention, which applies to the taking of depositions in most European countries, imposes restrictions on where depositions can take place, and whether a foreign  court   will  be  involved.  Germany   has signed the Convention,  but has entered special reservations for the taking of depositions in Germany.   For example, voluntary depositions must   be  taken  at the  U.S.  Consulate in Frankfurt, but an unwilling witness must be examined by a German  judge in  the   courtroom. In Germany, only non-parties testify as witnesses and the scope of questioning is very narrow.

Depositions of an unwilling witness require the filing of a letter of request with one of the sixteen German "Central Authorities". Once the Central Authority has determined  that the request complies with the Hague Convention, the Central  Authority  will forward  the  request  to one of the local courts for execution. The judge commissioned  to examine the witness will rely on a list of questions provided by the attorneys.  Afterwards, the party attorneys may ask follow-up questions.   There is no court reporting, no video recording and no cross-examination.  The judge summarizes the testimony at the conclusion of the testimony.  The judge is in control of the process ( §§ 380, 390 ZPO  (German  Civil Procedure Rules)), and has arrest authority for a witness who refuses to testify.
The U.S. Consulate requires that all notices of deposition be submitted at least six weeks in advance, together with the payment of an administrative fee of $1,283.00.
A consular officer will administer the oath, but attorneys examine the witness.  Court reporting, video recording and cross-examination are allowed, however, attorneys are not allowed to bring laptops or mobile phones onto consular grounds  There is no internet access nor speaker phones in the conference room.
U.S. rules concerning  the attorney-client privilege, attorney work product, and in-house counsel privilege do not equally apply in Germany, Austria or Switzerland. Nonetheless, the panel agreed that in German-speaking courts the main purpose of taking witness testimony is to obtain information  towards  settlement  and  to  enable the judge to make an informed decision.  Witness coaching is not allowed. German attorneys and judges consider witness preparation a questionable, improper measure.
The 2013 Deposition Instructions  are available from the US Consulate upon  request. The official State Department  website currently shows only the 2011 Deposition Instructions, available at:  http://germany.usembassy.gov/

Download the ABA Section of International Law Newsletter below. This edition includes articles from Ms. Engelhard-Barfield on:

  • Use of ADR in Commercial Disuptes on page 15, and
  • Taking Depositions for use in International Commercial Litigation: German requirements on page 26
ABA Section of International Law, Europe Update, Issue 7, September 2013
ABA/DAV Conference Highlights
Europe Hot Topics 7 Final Edition.pdf
Adobe Acrobat Document 666.5 KB