What can be done to compel a foreign witness to testify in a US civil tria

[griffin1977]

So I just read this:

Virginia Giuffre seeks testimony from Prince Andrew’s former assistant

The civil case against Prince Andrew is likely to involve calling his former equerry to testify. Presumably he’s living in the UK, so is this just wishful thinking in the part of the plantiff?

Is there anything that can be done to compel or encourage a foreign national living abroad to come and testify in a US civil trial. I’m assuming there is no equivalent of the extradition system for civil cases? (and not for witnesses who aren’t accused of anything, even if it was a criminal case)

Is it possible to even serve a subeoana on someone living abroad who isn’t American? Would there be any repercussions if he chooses to ignore the case entirely then later visits the US, can you be held in contempt for not travelling across the world to appear in a US civil case?

Assuming it is voluntary is it legal for the plantiffs legal team to pay for his travel to the US, visa paperwork etc ? Seems like an obvious and corrupt way to encourage someone to testify how you want (first class flights, and oh there happens to be a layover in Vegas!)

[Schnitte]

The keyword here is judicial assistance. Essentially, a court in one country requests the authorities in another to “assist”, for instance by examining a witness. I’m not sure about US practice, but a common practice in Europe is that the court of country A issues such a request to the authorities of country B. The witness might then be questioned by a judge in country B, and the transcript of that testimony is sent to the court in A where it can be admissible evidence.

[TokyoBayer]

I’m sure an actual attorney will provide the real answers, but I was involved in a lawsuit in the States against a US manufacturer for breach of contract by the Japanese distribution company I worked for in the mid 90s. We were partway through the discovery process when we settled, but there were some difficult issues with obtaining testimony.

It’s my understanding that US courts could not easily compel testimony from foreign nationals not living in the States. We could ask our witnesses to cooperate but couldn’t force them. We could ask for assistance from the Japanese courts, but that was going to be uncertain and a lengthy process. We had not gotten to that stage before we settled so we hadn’t gotten into the details.

According to the ABA, there are some methods.

1. Hague Convention : The preferred method of seeking discovery from foreign jurisdictions is the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention). This multilateral treaty establishes methods of cooperation whereby judicial authorities in one signatory country may obtain evidence in another signatory country. It provides two mechanisms by which a party may seek evidence: (1) letters of request or (2) assistance through diplomatic or consular agents and commissioners. One advantage of using this process is that a party may pursue alternative methods of discovery while seeking discovery through the Hague Convention. However, a party should keep in mind that the Hague Convention process is often lengthy, and some parties may find themselves unable to obtain complete discovery because many countries that are signatories to the convention have issued limiting declarations and reservations that restrict discovery. One particular reservation is contained in Article 23, which allows a signatory to declare that it will not execute a letter of request “for the purpose of obtaining pretrial discovery of documents as known in Common Law countries.”

2. Letters rogatory : Alternatively, parties may consider applying for a letter rogatory from a U.S. judge. A letter rogatory is a formal request from a court in which an action is pending to a foreign court asking for assistance to perform a judicial act. In assessing whether to pursue this avenue, a party should keep the following observations in mind: (1) The process is unpredictable, cumbersome, and slow; (2) once prepared by counsel, a letter rogatory must be signed by a U.S. judge and authenticated, if required by the foreign jurisdiction, and then conveyed through diplomatic channels; and (3) letters rogatory are merely a request to the foreign jurisdiction to assist, and the foreign jurisdiction is not obligated to comply.

3. The Walsh Act : The Walsh Act, 28 U.S.C. § 1783, permits a federal court to issue a subpoena for testimony or documents from a U.S. citizen or resident abroad if the evidence sought is “necessary in the interest of justice” and is “not possible to obtain . . . in any other manner.” Of note, while the Walsh Act has been used in civil actions, it was originally enacted for use in criminal proceedings.

4. Use of foreign jurisdiction’s process : Parties to U.S. litigation may also seek discovery pursuant to the legal procedures of the foreign jurisdiction where the evidence is located. Research the foreign jurisdiction’s procedural rules early on and assess whether pretrial discovery is permitted.

Japan isn’t a signature to the Hague Convention, so we didn’t have that option.

There were even issues of taking depositions. IIRC, they needed to be done in the embassy or consulate but if both parties agreed, that requirement could be waived. It’s difficult to schedule time within the embassy so that could be a delaying tactic.

This was almost 20 years ago, so take it for what it’s worth.

[AK84]

There are several procedures and process which might be employed, as @TokyoBayer mentions in his post above.
Simply put there are basically two ways this can be done, either Court staff from one country travel to another to record evidence or the Court in the witnesse’s home jurisdiction can undertake the recording of evidence.
The instruments which allow for either to be done depend on the exact relationship between the countries.
Generally speaking the coercive process will be done by the resident jurisdiction regardless.

There is one new way in recent years which is evidence by video link and its only going to grow going forward but again the actual coercive processes will be done by the jurisdiction of residence.

[griffin1977]

Thanks. So a follow up question, is are witnesses who testify that way, in a foreign country, legally liable for perjury if they don’t tell the truth? If not is that a problem? Does an oath to a US court “count” if you are not legally liable for perjury if you lie?

[AK84]

To be honest, never thought of that. Where a person is examined by the Court of their home jurisdiction, then they will presumably be the ones who will look into any perjury.
When Court staff travel, its an open question, IMO and I cannot be sure.

[Schnitte]

If they are interrogated by a judge in the host country, and sworn in, then they are liable for perjury under the law of the host country (though not US law).

[MikeS]

@TokyoBayer

Japan isn’t a signature to the Hague Convention, so we didn’t have that option.

That won’t be a problem for the current case, since the UK and the US are both signatories.