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Trial Evidence

Deposing a Witness under the Hague Convention in a Mexican Court

By Maria-Vittoria "Giugi" Carminati – January 3, 2011


Parties seeking to depose reticent deponents abroad can do so under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The Hague Convention does not create substantive law. It creates a framework within which courts in different countries can cooperate, without the intervention of their foreign affairs ministries and embassies. It is entirely a procedural treaty that allows courts to recognize each other’s authority and assist each other in serving and subpoenaing individuals across borders. Deadlines, limitations on the scope and type of questioning, as well as time limitations will be dictated, in large part, by the law and customs of the country in which you are taking the deposition. Therefore, a review of the admissibility of foreign depositions in United States courts is indicated before you embark on such depositions. You certainly don’t want to invest time and resources into depositions that will be inadmissible in United States proceedings.


Hague Convention Procedure
Procedurally, noticing a deposition under the Hague Convention means that the United States court will ask the foreign court to subpoena the deponent for you. In practical terms, you will file an Application for Issuance of a Letter of Request (also called a “Letter Rogatory”) with the United States court in which your case is pending. The United States court will, normally, grant your application and issue a Letter of Request. Under the Hague Convention, each country designates an office (usually referred to as the “Central Authority”) to process and forward the Hague Convention requests. You will have to forward the Letter of Request to the Central Authority of the subpoenaing country. The Central Authority will then forward the Letter of Request to a court with jurisdiction over the deponent. The court will subpoena the deponent and inform you of the date and time for the deposition.


If a deponent is subpoenaed by a foreign court under the Hague Convention, the deposition will often take place in court, before the foreign judge who issued the subpoena pursuant to the Letter of Request. Although some sources will tell you that depositions in Mexico are limited to written questions or must be conducted by the judge, the truth is that practices vary widely. Some Mexican judges allow foreign parties to conduct oral depositions in their courts, but even an oral deposition will not look like a deposition in the United States. Here are some things to expect.


The Setting
You should not expect a courtroom with a bench, podiums, counsel tables, and silence. Courts in Mexico are administrative offices. The courtroom itself is the judge’s desk, which can be located in an individual office or in a wide-open office space where court employees and the public conduct court business all day. Even if the judge has an individual office, the door will likely remain open, and the office remains part of the common area.


The deposition itself takes place at the judge’s desk. You, opposing counsel, the witness, the court reporter, possibly the interpreter, the judge, the court secretary, and the typist all sit around a single desk. In all likelihood, you will be standing while opposing counsel questions the witness, and vice versa. The number of chairs available will vary widely throughout the day; therefore, dress comfortably and prepare to stand for hours.


The fact that court employees conduct business in the same space where the deposition takes place also means that noise levels will be relatively high. And in certain courts, such as Mexico City, Cancun, and Playa del Carmen, the practice is to drill holes in paper, rather than using a hole punch. Because of this, expect the sound of a drill to be a continuous background noise to the deposition.


Logistics
It is not uncommon for the Mexican court to subpoena several witnesses—three, four, or five—for the same day and at the same time. Depositions are not a common occurrence in Mexican courts, and they certainly do not last more than a few hours. Therefore, the Mexican courts will find it reasonable to notice several deponents for 2:00 p.m.


All of the witnesses will arrive at 2:00 p.m. Whether the witnesses can leave after their particular depositions varies from court to court. For example, certain judges will allow each deposition to be printed and signed individually so that each witness can be excused after being deposed. But certain judges will required that all witnesses remain for the entirety of “the proceeding,” consisting of all of the noticed depositions. In that case, all of the witnesses will have to remain in court until the end of the last deposition.


The court will ensure everybody’s presence by asking for everybody’s identification. “Everybody” includes the attorneys, the witnesses, and the interpreter. Therefore, advise all members of your team to bring their passports or other form of government identification. A state driver’s license is usually acceptable, but a passport is a safer bet. The court will transcribe the name, address, occupation, age, and possibly marital status of each person attending. This process easily takes over an hour.


The court will keep everybody’s passport, or other identification, until the end of the deposition. The Mexican court will return each piece of identification to its owner after each person has signed every page of the final deposition transcript.


Procedure: Objections
Before starting the deposition, you or a Spanish speaker you trust—such as local counsel—should talk to the judge to ask whether he or she is willing to withhold ruling on objections. In a Mexican court, the judge traditionally rules on objections. If the judge does so, you or opposing counsel will be unable to ask certain questions.


For example, Mexican judges may prevent parties from asking questions if the question asks the witness to testify about his or her state of mind or knowledge. In Mexico, these questions are “confessional” in nature and, therefore, impermissible. Of course, questions about a witness’s state of mind, or personal knowledge, are perfectly allowed in United States depositions. But if the Mexican judge rules on these types of questions, he or she will remove them entirely from the record, and the witness will not be allowed to answer those otherwise permissible questions. The record will then become woefully incomplete and may turn the entire exercise into a waste of time, energy, and resources for all parties involved. Asking the judge to refrain from ruling, and having both parties tell the judge that they agree to this procedure, will avoid significant inefficiencies.


If opposing counsel opposes your request in an attempt to hamper the deposition, be sure to note that on the record. If you decide to challenge the deposition because you were not allowed to ask certain questions, you will then have a record of opposing counsel’s role in preventing you from asking permissible questions.


Procedure: Presenting Documents
Certain Mexican judges will not allow witnesses to identify, or answer questions about, documents. It is therefore important to ask the judge for permission to do so before the start of the deposition. And, again, it is important that both you and opposing counsel make the request. If opposing counsel opposes the request, be sure to make a statement to that effect, describing your efforts to obtain the judge’s consent for transcription in the United States court reporter’s record.


Procedure: The Record
The Mexican court will insist on creating its own record of the deposition. This does not mean you should dispense with the court reporter. Quite the contrary: a United States court reporter is more important than ever in this setting. A typist creates the Mexican court record. But typists are not selected for their speed or accuracy and are not trained to be typists. They are regular court employees. In Mexico City, the typist can be a young person who types with one or two fingers at a time. Therefore, be ready for the fact that each answer and each question will be repeated three, four, five, or even six times to allow the typist to transcribe it. The court secretary typically stands behind the typist and proofreads over his or her shoulder. The secretary will suggest changes and correct spelling errors as the typist continues to type.


Further, the typist records only the questions and the answers. He or she does not record any conversations between counsel, or between counsel and the judge. To make sure that such conversations remain part of the record, as they would in the United States, your court reporter is extremely important. The court reporter should continue operating as he or she normally would. He or she should, as is customary, transcribe every question, answer, objection, and exchange. This is of particular importance if the judge forbids you from presenting the witness with documents or from asking certain questions. To challenge the deposition, a complete record of everything you were unable to do is just as important as a record of what you were able to do.


Procedure: Video Recording
The witness may arrive on the day of the deposition and refuse to be videotaped. The Mexican judge will probably respect the witness’s preference and forbid videotaping that particular witness. You should decide ahead of time whether this is something to which you will object on the record or whether it is not worth fighting over.


Failure to Appear
The fact that a Mexican court subpoenaed a witness does not guarantee the witness’s appearance. In most circumstances, the fine for failure to appear is not significant enough for most professionals—such as real estate agents, lawyers, appraisers, and surveyors—to make it worth their while. If a witness fails to appear, the court will simply subpoena the witness again and reschedule the deposition for another day and time. Keep in mind that if the witness fails to appear, you can still try to call him or her and negotiate a deposition. For example, you could ask the witness to meet you at a hotel conference room or in a local attorney’s office to give the deposition. You can also tell the witness you will ask the Mexican judge to dispense with issuing an additional subpoena, which will save the witness the hassle of being fined a second time.


Parting Words
Remember to bring food and water, because you will not necessarily get a lunch break when you expect to. Breakfast, lunch time, and dinner are not scheduled the same way in Mexico as they are in the United States.


In addition, consider the way you dress. The dress code in Mexico varies from business casual to casual. Always check with local attorneys as to temperature and dress code. Keep in mind that the Playa del Carmen, Cancun, and Mexico City courts have no air conditioning. In the middle of the summer, your clothing and your access to water will become important if you have to stand for hours while staying alert.


Last, local litigators are your best resource for local customs and practices. But with regard to the logistics and procedural quirks of an oral deposition in a Mexican court, they may be as much of a neophyte as you are. Depositions are uncommon in Mexico, and they are far more restricted than in the United States. Therefore, when it comes to the content of questions, objections, and logistics of creating a United States record, you may be the one doing the explaining, and not vice versa.


If your work takes you to Mexico for a Hague Convention deposition, you will be outside your element. But, I hope, you now have a better idea of what to expect.


Keywords: litigation, trial evidence, witness deposition, Mexico


Giugi Carminati is a complex commercial litigator in the Houston office of Weil, Gotshal & Manges, LLP.


 
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