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