JESSICA STENDER, Legal Director Conducting Depositions Abroad National Border Law Conference January 29, 2015

ABOUT CDM Founded in 2005, Centro de los Derechos del Migrante, Inc. (CDM) is the first transnational legal services organization based in Mexico. CDM is dedicated to improving recruitment and employment conditions and promoting access to justice for Mexican low-wage migrants to the U.S. With offices on both sides of the U.S.-Mexico border, CDM has developed an innovative approach to legal advocacy and organizing that engages workers both in their communities of origin and while they are employed in the U.S.

ABOUT CDM: Program Areas Outreach, Education, and Leadership Development Intake, Evaluation and Referral Services Litigation Support and Direct Representation Policy Advocacy Special Initiatives Justice in Recruitment Project

Outreach: Community Workshops

Intake, Evaluation and Referral Services Refer clients to U.S. attorneys: Wage and Hour Employment Discrimination Workers’ Compensation Immigration Join CDM’s Referral Network

Litigation Support Assist U.S.-based attorneys with Mexico-based clients: Locate and communicate with workers in Mexico Send and receive documents Assist clients in applying for immigration relief to enter U.S. for hearings and other proceedings Class action settlement administration Facilitate transnational discovery Notarize documents Facilitate remote depositions

Bansefi Funds Transfer Mechanism CDM facilitates transfers of settlement funds to clients in Mexico Clients do not need to have a bank account Clients must show photo ID and provide PIN Transfers can be made to individuals or large groups

Policy Advocacy Provide policy analysis and recommendations to U.S. and Mexican policymakers and worker advocacy groups; Bring migrant voices to key policy forums; Produce investigative reports on recruitment and workplace conditions of migrants

Special Initiatives Justice in Recruitment Project Investigate and uncover the actors and processes in low-wage labor recruitment Work with allies and government agencies to address systemic abuses in international labor recruitment and U.S. employment Building Worker Power and transparency in labor recruitment

Conducting Depositions Abroad: Initial Considerations

Initial Considerations Before filing lawsuit, consider whether client, other parties, or non-party witnesses might be outside of the U.S. during litigation. Discuss with clients any plans to leave U.S. and importance of maintaining contact. Obtain at least 2 phone numbers in U.S. and in home country.

Initial Considerations Consider taking deposition before lawsuit is filed if client’s departure is imminent (e.g. in removal proceedings). FRCP 27(a): Petition by prospective party to perpetuate testimony before action is filed to prevent “failure or delay of justice.” Consider videotaping deposition for possible use at trial: FRCP 32(a)4)

Rule 26 Conference It is generally advisable to discuss with opposing counsel during Rule 26 conference: Locations of plaintiff(s) and potential witnesses; Options for meeting discovery needs; Plan for litigation costs.

The Hague Convention Establishes procedures for obtaining evidence outside of country where a case is pending. Not mandatory; permissive supplement to FRCP. Article 1: “letters of request.” Can be useful when seeking to depose hostile non-party witness not subject to U.S. court’s jurisdiction. Can be time consuming and expensive.

Taking Depositions Abroad: By Stipulation FRCP 30(b)(4) Parties may stipulate - or the court may on motion order - that a deposition be taken by telephone or other remote means.

Plaintiff Client Noticed for Deposition: Returning to U.S. Potential immigration barriers to return to U.S. Even if no admissibility bars exist, obtaining a visa or humanitarian parole can be expensive and time-consuming Attorney should understand procedures in order to discuss with opposing counsel or in motions filed with the court.

Plaintiff Client Noticed for Deposition General presumption: Plaintiff will be deposed in the forum in which she chose to file. However, if Plaintiff can show “hardship or burden to the plaintiff, which outweigh any prejudice to the defendant, the general rule may yield to the exigencies of the particular case.”

Plaintiff Client Noticed for Deposition If unable to stipulate to remote deposition: FRCP 26(c): “The court may... issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Court may order that a plaintiff’s deposition be taken in a different location, or by alternative means, “if justice so requires.”

Plaintiff Client Noticed for Deposition Rule 26 Motion Plaintiff had no choice but to file in U.S.; Immigration considerations and costly, uncertain processes impose undue burden on P; Financial hardship due to costs (visa fees, travel, lodging, subsistence) relative to damages; If P is guestworker: unjust enrichment if guestworkers denied access to justice; perverse incentive to hire foreign workers who are less able to protect rights; Satisfactory alternatives exists: no prejudice to D

Depositions of Non-Party Witnesses Abroad Attempt to obtain witness’s voluntary cooperation. If not possible: FRCP 28(b)(1)(B): Letter of request or “letter rogatory” Can be useful in seeking to depose a hostile, foreign non-party witness if not subject to U.S. court’s jurisdiction. A formal appeal from a court in one country to judicial authorities in another country to seek compulsion of evidence, i.e. direct that testimony be taken in a deposition. Under applicable treaty, or Diplomatic channels Consult State Department website for country- specific procedures to follow.

Taking Depositions Abroad: Foreign Law Check laws in foreign country relevant to U.S. discovery procedures within its borders: U.S. Department of State website – judicial assistance abroad In some countries, voluntary depositions of non- U.S. citizens can only be taken pursuant to a “letters rogatory” requesting judicial assistance from the courts in those countries. In some countries, State Dept. suggests taking deposition in presence of attorney from the country.

Taking Depositions Abroad: Oath FRCP 28 sets forth 4 ways to proceed with depositions abroad: (A) Under an applicable treaty or convention (B) Under a letter of request; (C) “On notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination;” (D) “before a person commissioned by the court to administer any necessary oath and take testimony.”

Taking Depositions Abroad: Oath FRCP 28(b)(1)(A): Under an applicable treaty or convention: The Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters (the Hague Convention on Evidence) Establishes procedures for obtaining evidence outside of country where action is pending, i.e. conducting depositions. Not mandatory and serves only as permissive supplement to FRCP Can be costly and time-consuming

Taking Depositions Abroad: Oath FRCP 28(b)(1)(B): Letter of request or letters rogatory Process can be complicated and time- consuming.

Taking Depositions Abroad: Oath FRCP 28(b)(1)(C): “On notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination” U.S. Consular Officials are authorized by federal law to administer oaths. Cost Persons authorized to administer oaths under law of place of examination: Consult local law and experts

Taking Depositions Abroad: Oath FRCP 28(b)(1)(D): “before a person commissioned by the court to administer any necessary oath and take testimony.” Party may petition Court and seek commission for a specific person to conduct oath abroad.

Taking Depositions Abroad: Oath FRCP 29: Stipulate to an agreed-upon procedure, including who will administer the oath, in writing and request the Court to order it. “Unless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified – in which event it may be used in the same way as any other deposition.” Must ensure that stipulated procedure does not violate law of the other country. OBTAIN WRITTEN STIPULATION AND REQUEST THAT IT BE SO ORDERED BY JUDGE.

Taking Depositions Abroad: Oath Stipulate to a oath administered remotely pursuant to FRCP 29 or seek court order through FRCP 26 U.S. court reporter remotely administers the oath from the U.S. to deponent abroad via telephone or video conference.

Taking Depositions Abroad: Logistics If participating remotely, deponent can participate via: Telephone Skype Video Conference

Taking Depositions Abroad: Logistics Recording deposition: FRCP 30: “Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means.” A party is not required to first obtain permission from the court or the other party as to the method of recording. Most practitioners utilize court reporters for who record the deposition remotely. Possible use of videographer in other country. Stipulate to procedure prior to deposition.

Taking Depositions Abroad: Logistics Interpreter No requirements for who can serve as an interpreter in a deposition, though federal court-certified interpreters are thought most reliable. Remote participation of interpreter in the U.S. via phone or videoconference Local interpreter present with deponent Check with U.S. Consulate

Taking Depositions Abroad: Costs Costs FRCP 30(b)(2): “the party taking the deposition shall bear the cost of the recording” However, this rule does not always apply, especially if the non-resident plaintiff is the deponent seeking a change from the normal procedure. Court may require plaintiff to cover the additional costs, even if defendant ordered the deposition.

QUESTIONS AND COMMENTS