A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.
It is important to keep in mind that Rule 15 depositions are not discovery depositions, but are only to be used for the purpose of preserving evidence.
Defendant Must Seek Court Approval
A defendant must first obtain the Court's approval to take a Rule 15 deposition. The actual procedure for taking the deposition is governed by Fed. Rule. Civ. Procedure 28 (b)(2). In addition, depositions must comply with domestic law of the country where the deposition will be taken.
The Department of State's web page, "International Judicial Assistance, Notarial Services and Authentication of Documents," and the Department of State Foreign Affairs Manual are useful sources of information pertaining to the technical requirements of Rule 15 depositions. Some countries prohibit taking depositions, or may permit depositions only if witnesses are neither compelled to attend nor required to answer all questions.
In addition to the Court's order authorizing the Rule 15 depositions, it may be necessary for the defense to petition the Court to issue a letter rogatory to the foreign court pursuant to Fed. R. Civ. P. 28 (b)(2), in order to secure the witness's attendance.
Additional resources provided by the author
Foreign Evidence Blog, regarding new case law on foreign evidence issues and extradition.
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