7 FAM 920
TAKING VOLUNTARY DEPOSITIoNS OF WILLING WITNESSES
(CT:CON-949; 11-10-2022)
(Office of Origin: CA/OCS)
7 FAM 921 PROCEDURES FOR ORAL EXAMINATION OF WITNESSES
(CT:CON-949; 11-10-2022)
a. What is a Willing Witness? Voluntary depositions are taken with respect to the testimony of willing witnesses. Willing witnesses are simply witnesses who are not compelled to testify pursuant to court order. Accordingly, willing witnesses may include witnesses that are actually unhappy or reluctant witnesses (see 22 CFR 92.49, 22 CFR 92.50, and 22 CFR 92.51).
b. Statutory Function: Consular responsibilities with respect to taking depositions are statutorily recognized.
(1) See 22 U.S.C. 4215 and 22 U.S.C. 4221; and
(2) Rule 28 of the Federal Rules of Civil Procedure provides:
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Persons Before Whom Depositions May Be Taken (b) In Foreign Countries. Depositions may be taken in a foreign country (1) pursuant to any applicable treaty or convention, or (2) pursuant to a letter of request (whether or not captioned letters rogatory), or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or by the law of the United States, or (4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed "To the Appropriate Authority in [here name the country]." When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath or because of any similar departure from the requirements for depositions taken within the United States under these rules. |
(3) If the host country permits taking depositions, consular officers should try to comply with the request, subject to scheduling issues. Some countries prohibit taking depositions.
Note: See Department of State, Digest of U.S. Practice in International Law.
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Digest of U.S. Practice in International Law 2000 Declaration re Air Crash at Agana, Guam (Korea Judicial Assistance) Declaration re U.S. v. Jones (China Judicial Assistance) 2001 Declaration re U.S. v. Porecca (Brazil Judicial Assistance) |
(4) Host Country Permission to Take Depositions: Some countries generally permit taking depositions, but require specific permission to do so. For example:
Japan
Switzerland
Germany
c. Authority Under Local Law: The authority to conduct voluntary depositions may be secured in the host country by local law. Consular officers should be generally familiar with the provisions of local law regarding depositions. See the OCS Intranet Judicial Assistance feature for our questionnaire for host countries regarding judicial assistance.
d. Treaty Authority: There are a variety of treaty authorities for taking depositions. See Treaties in Force and the Treaties Feature on the OCS Intranet page.
(1) The Vienna Convention on Consular Relations;
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Article 5 f and j “(f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State.” “(j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State.” |
(2) Bilateral Consular Conventions:
(3) The Hague Evidence Convention. If a country is a party to the Hague Evidence Convention, it is important to review that countries reservations and declarations to see if it objected to the taking of depositions, see Hague Evidence Section.
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(4) Mutual Legal Assistance in Criminal Matters Treaties (MLATs) (see 7 FAM 960).
e. Information on the CA Internet, Post and International Organization Web Pages: CA/OCS/ACS maintains general information brochures about obtaining evidence and country-specific information brochures about judicial assistance at the Consular Affairs Internet home page. Posts that conduct many depositions also have information on post web pages about judicial assistance.
f. Countries that Prohibit Taking Depositions: If a consular officer in a country that prohibits taking depositions receives a court order issued by a Federal court in the United States ordering a consular officer to participate in taking the deposition of a willing witness, you should immediately notify CA/OCS/ACS and L/CA to respond to the court order.
g. Oral and Written Depositions: Depositions may be taken in person (oral depositions) or based on written questions. Procedures for oral and written depositions are similar. 7 FAM Exhibit 921 provides guidelines in taking depositions at post. Written depositions are those where counsel are not present, but have provided questions in writing, which are posed by the consular officer and answered orally by the deponent. Oral depositions are those where counsel are present and pose the questions themselves. They are preferred because counsel can adjust questions in light of the deponent’s answers. If attorneys agree, the consular officer may withdraw after the necessary oaths are taken.
h. Scheduling Depositions: A deposition should be scheduled for a date and time mutually agreeable to the consular officer, counsel, and witness(es). Depositions may be taken “on notice” 22 CFR 92.52, or pursuant to a commission issued a court, 22 CFR 92.53.
i. Arranging for Stenographer, Videographer, or Interpreter:
(1) Rcounsel must arrange for the presence or appearance of the witness, stenographer, and interpreter at the consular section for the taking of the deposition;
(2) Consular officers assist only as necessary; and
(3) If requesting counsel, citing 22 CFR 92.56, asks the consular officer to make all such arrangements, point out that the consular officer has other statutory duties that must take precedence. In addition, the consular officer is responsible for emergency services. Consequently, arrangements for the logistics of a deposition may take the consular officer more time than it would to request counsel and be subject to additional fees for consular time.
j. Consular Officers Administering Oaths and Withdrawing Subject to Recall: The consular officer administers the oaths to the witness(es), the stenographer or video operator and, if present, the interpreter or translator. After the oaths have been taken, the consular officer must ensure that any withdrawal or objection is recorded, noting the agreement of the attorneys and whether the officer was subject to recall. The names of all persons present should also be included in the record.
k. Instructing the Stenographer or Video Operator: The consular officer must ensure that the stenographer or video operator is instructed by the parties’ counsel to transcribe the proceedings verbatim and to give the transcript to the witnesses for correction and signature. Counsel can waive this requirement by mutual consent in certain cases.
l. Transcript: When the transcript has been made, the stenographer must execute before the consular officer an affidavit certifying that the record in the matter is a true and accurate transcription from notes made by the stenographer. This affidavit must give the date on which the notes were taken and indicate whether the transcribed testimony was given to the witnesses for correction, and, if so, whether any changes were made and in what manner. It must be attached to the testimony.
m. Consular Closing Certificate: The consular officer must also prepare a certification indicating that the witnesses (listed by name) were duly sworn by the consular officer and that, in accordance with an agreement of the parties, the officer withdrew, subject to recall, as reflected in the attached notice of commission. This certification must also refer to the stenographer’s affidavit of accuracy (see section 7 FAM 925.1 e).
n. Consular Fees: Consular officers must charge the current fees for administering each oath, for handling and returning the deposition, and for performing any other services for which fees are customarily charged. (See Schedule of Fees, 22 CFR 22.1.) Bear in mind that:
(1) Scheduling Fee and Deposit for Deposition Fees: A minimum deposit specified in 22 CFR 22.1 must be paid to the Embassy or Consulate before a deposition can be scheduled. If the consular officer believes the fees will far exceed the minimum deposit, a larger deposit should be requested. The fee should be in the form of a certified check or money order payable to the post concerned. It is used to cover consular officer and staff time in scheduling the deposition, and is not refundable if the deposition is canceled. If rescheduled, another deposit should be collected. Submit the deposit to the post’s class B cashier for placement in a post SDA (Suspense Deposit Abroad 19x6809) account, to be drawn upon for deposition fees as required;
(2) Payment of Fees: Payment in full should be received prior to the departure of the attorneys. Exception: if large sums of money are necessary, a written acknowledgment for the debt should be executed by the requesting counsel in the form of an affidavit; and
(3) Fees for Services Outside Consular Premises or After Hours: If depositions are taken outside consular premises at some distance, or after working hours, charge appropriate fees for consular transportation costs. (See Schedule of Fees, 22 CFR 22.1.)
o. Post Role Regarding Interpreting or Translating:
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NOTE: The consular officer, as a rule, may not serve as interpreter or translator. While 22 CFR 92.56 states that consular officers may act as interpreters/translators, few officers are fluent enough in technical aspects of languages to do so. |
(1) When necessary and practicable, the officer may see to it that a qualified interpreter is engaged;
(2) Counsel must agree about the fees appropriate for such private persons and should pay for the services;
(3) If a U.S. Government agency requests retention of such services, it should furnish a Federal appropriation number and fund code; and
(4) If no qualified interpreter or translator is available in the host country, the witness being deposed must have the questions posed and the responses translated by a competent person engaged outside the host country by the requesting counsel. In the case of written interrogatories, the questions must always be submitted both in English and in translation in the native language of the deponent. The deponent(s) may record responses in writing in their native language. Funds for translating the questions and the deponent’s responses into English must be provided by the requesting party.
p. Stenographer or Video Operator: Requesting parties often bring a stenographer or video operator from the United States in oral deposition proceedings. In the case of written interrogatories, if no stenographer is available locally, the witnesses may write out their own responses. If appropriate, a Foreign Service national employee or Foreign Service secretary may act as stenographer, charging fees set forth in 22 CFR 22.1.
q. Oaths to be used by Consular Officers in Taking Depositions: The consular officer should administer oaths with the appropriate solemnity.
(1) Oath for Witnesses;
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Do you solemnly swear (or affirm) that you will tell the truth, the whole truth, and nothing but the truth, in answer to the several questions now to be put to you? |
(2) Oath for Stenographer, Court Reporter or Video Recorder Operator; and
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Do you solemnly swear (or affirm) that you know the English and (name of appropriate language) languages and that you will truly and impartially reduce to writing or (take down notes and faithfully transcribe, video record) the questions to be asked of the witness and the testimony of (witness’ name), a witness now to be examined? |
(3) Oath for Interpreter or Translator:
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Do you solemnly swear (or affirm) that you know the English and (name of) languages and that you will truly and impartially interpret (or translate) the oath to be administered and questions to be asked of (name of witness), a witness, now to be examined, out of the English into the (name of) language, and that you will truly and impartially interpret (or translate) the answers of (name of witness) out of the (name of) language, into the English language? |
r. Deportment of Legal Counsel Participating in Depositions:
(1) Counsel for the party requesting an oral deposition has the right to conduct a direct examination of the witness without interruption, except in the form of objection by the opposing counsel;
(2) The opposing counsel has the same right on cross-examination;
(3) Cross-examination may be followed by re-direct and re-cross-examination until the interrogation is completed; and
(4) The consular officer should try to restrain counsel from indulging in lengthy conversations among themselves, digressions from the principal line of argument, or asides, and attempts to mislead the witness. Some witnesses may wish to be accompanied by an attorney to protect their interests.
s. Objections: The consular officer has no authority to sustain or overrule objections but should ensure that they are recorded, as provided in section 7 FAM 922.
7 FAM 922 PROCEDURES FOR WRITTEN EXAMINATION OF WITNESSES
(CT:CON-130; 03-22-2006)
a. While written depositions are now only rarely taken by consular officers, it remains important to follow carefully procedures in obtaining testimony (see 22 CFR 92.58). When a witness does not understand the meaning of a question, the consular officer should explain it, if possible, taking special care to elicit an answer strictly responsive to the question.
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NOTE: While 22 CFR uses the term “interrogatories”, the Federal Rules of Civil Procedure has been changed to use the term “questions”. This subchapter reflects the change, which is more easily understood by witnesses. |
b. Do not give the witness a copy of the questions, or allow the witness to examine them, before the questioning. It may be necessary for the officer to indicate the general nature of the evidence being sought, but the officer should not give this information in sufficient detail to permit the witness to formulate answers in advance.
c. The written questions should not be repeated in the record, but references to them should be made as follows:
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To the first question, the witness responded that. . . . |
d. All written questions must be put to the witness, even if the witness disclaims further knowledge of the subject.
e. When counsel for all the parties attend an examination conducted on written questions, the consular officer may, if counsel consents, permit oral examination of the witness following the examination on written questions. The oral examination should be conducted in the manner and order as if no written examination had preceded it.
f. To refresh a faded memory, permit a witness to refer to notes, papers, or other documents. Such occurrences must be noted in the record of the testimony. (See 22 CFR 92.60(b)).
g. When a witness confers with the accompanying attorney before answering an interrogatory, the consular officer should also include that fact in the record. (See 22 CFR 92.60 (c)).
h. The consular officer should request the witness not to leave the officer’s presence or the presence of the counsel asking the questions during the examination, except during recesses for meals, rest, and similar purposes. Note in the record failure of the witness to comply with this request.
i. If examination of a witness requires several hours or days, permit recesses for reasonable periods and for sufficient reasons.
j. The consular officer must mark, by exhibit numbers or letters; all documents identified by a witness or counsel and submitted for the record.
7 FAM 923 ROLE OF U.S. JUDGES
(CT:CON-949; 11-10-2022)
a. Judges from U.S. Federal, State, or local courts, including administrative law judges, should not perform official functions in foreign countries without the express consent of host country authorities. Such actions may violate the judicial sovereignty of the host country.
b. Judges occasionally attempt to “hold court” in U.S. embassies and consulates during the taking of depositions. Consular officers should report such incidents to the Department (CA/OCS, L/CA).
c. In March 1978 the Judicial Conference of the United States, Committee on Court Administration, disapproved, as a matter of policy, the practice of Federal judges traveling abroad to take testimony or depositions in cases pending before them. (See 7 FAM 942.)
7 FAM 924 ROLE OF SPECIAL MASTERS
(CT:CON-130; 03-22-2006)
a. A Special Master is an officer appointed by a court to act as its representative in some limited or specific legal function. Federal Special Masters are appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure. Like judges of U.S. Courts, Special Masters should not perform official functions in foreign countries without host country consent.
b. The use of Masters is to aid judges in performance of special duties as they may arise in a case. Their appointment and activities are only for the purpose of assisting the court to get at the facts in cases of complicated litigation, usually where special knowledge or expertise is required.
c. The word “Master” includes a referee, an auditor, a commissioner, and an assessor. Participation of a Special Master in depositions in complicated matters can be very helpful to consular officers who generally are not attorneys and who do not have expertise in the subject matter of the deposition.
d. When a Special Master participates in a deposition, the consular officer should instruct the court reporter/stenographer to include in the record any objection the participants may have to any of the actions of the Master.
7 FAM 925 PREPARATION OF THE RECORD
7 FAM 925.1 Transcription and Signing of the Record
(CT:CON-130; 03-22-2006)
a. Stenographer, Court Reporter, Or Transcription by Non-Stenographic Means: Depositions are usually recorded by a stenographer or court reporter, but other means, such as tape recording or videotaping, may be used. For information about how to prepare the record in such cases, see 7 FAM 926.3 e, 22 CFR 92.61, and 22 CFR 92.62.
b. Transcript: After examination of a witness is completed, the stenographic record of the deposition must be fully transcribed, and the transcript attached securely to any document or documents to which the testimony in the record pertains.
c. Review of Transcript by Witness: The transcription must then be submitted to the witness for examination by and read to or by the witness, unless the examination and reading are waived by the witness. Any changes in form desired by the witness must be entered on the record, at the end of the record of the deposition, by the consular officer, with a statement of the reasons given by the witness for the changes. No substantive changes can be made, but additions or clarifications may be added. The deponent, however, may provide a statement correcting previous testimony, or otherwise protect against a charge of perjury.
d. Witness Signature: The witness must then sign the transcript and initial in the margin each correction made at the witness’s request. Since the witness may depart before the transcript is completed, the consular officer should request counsel to send the original transcript to the witness with instructions to return it to the consular officer in person to sign it.
e. Stenographer, Video Operator and Interpreter Signature: The stenographer or video operator and interpreter must execute affidavits certifying the accuracy of their work. (See 7 FAM Exhibit 925.1e).
f. U.S. State Requirements: Some U.S. states require the witness and the officer taking the deposition to sign each page. Do so only on the explicit instructions of the requesting counsel. See the sample record of a deposition in 7 FAM Exhibit 925.1f.
g. Fees: Charge appropriate fees (see 22 CFR 22.1) and note them on the statement of account. For a sample statement, (see 7 FAM Exhibit 925.1g).
h. Consular Closing Certificate: The consular officer should prepare a closing certificate of the deposition (see 7 FAM Exhibit 925.1h and 22 CFR 92.62).
7 FAM 925.2 Arrangement of Papers
(CT:CON-130; 03-22-2006)
a. Unless special instructions to the contrary are received, arrange the papers forming the completed record of the deposition in the following order from the bottom of the packet to the top:
(1) Commission to take depositions (or notice of taking depositions), with written questions, if any, exhibits, and other supporting documents fastened to it;
(2) Statement of fees charged;
(3) Transcript of the deposition of the various witnesses, including any exhibits the witnesses may have submitted;
(4) Stenographer/interpreter affidavits; and
(5) Closing certificate (see 7 FAM Exhibit 925.1h, 22 CFR 92.63.)
b. Fasten all the above papers together, and affix the consular officer’s seal to the closing certificate. Use ribbons and wafer seals only if requested.
7 FAM 925.3 Filing of Depositions
(CT:CON-130; 03-22-2006)
a. Place the above papers in an envelope and seal it with the wax engraving seal of the post or rubber stamp seal with the signature of the consular officer across the envelope flap. The envelope must be endorsed with the title of the action and marked and addressed to the clerk of the court. Do not mail the documents directly to the court unless specifically instructed by participating counsel to do so.
b. Send the sealed envelope by registered mail to the counsel for the party that asked for the deposition unless the consular officer is instructed by counsel to send it to the court where the action is pending. If returned to the court, the envelope must indicate the title of the action. (See 7 FAM Exhibit 925.3). When the action is a Federal criminal case, send it to the Department (CA/OCS) for onward transmission or directly to the U.S. Department of Justice, Federal Prosecutor, or defense counsel, when instructed to do so.
c. Requesting counsel will often request that you transmit the documents by commercial express courier service, for which requesting counsel bears the costs. If international registered mail is unreliable in the host country, return depositions by pouch through the Department (CA/OCS) for relay to the court. Registered APO mail may also be used.
d. See 22 CFR 92.64.
7 FAM 925.4 Furnishing Copies
(CT:CON-130; 03-22-2006)
a. The consular officer may provide a copy of a deposition to the deponent or to any party to the action upon payment of the copying fees. Such copies may also be presented to the parties of action directly by the stenographer employed by counsel. If State rules require depositions to be sent to requesting counsel, comply with such a request. (See 22 CFR 92.64).
b. If a deponent desires certification under official seal that the copy is a true copy, also charge the certification fee prescribed in the Schedule of Fees (see 22 CFR 22.1).
7 FAM 926 MODERN PROCEDURES FOR RECORDING AND TAKING DEPOSITIONS
7 FAM 926.1 Impact of Advancing Technologies
(CT:CON-949; 11-10-2022)
The growing trend toward the use of telephones, videotape, video teleconference, web-based platforms and other technologies as ameans of obtaining evidence abroad compels the consular officer to observe carefully the pertinent legal procedures, if any, of the host country. Obtaining evidence under certain circumstances may place additional burdens on the consular officer’s time, especially when arrangements must be made for the use of dedicated international telephone lines and special telephone conference systems. When in doubt about recording or taking testimony under unusual circumstances, consult L/CA.
7 FAM 926.2 Taking Depositions by Telephone
(CT:CON-130; 03-22-2006)
a. Rule 30(b)(7) of the Federal Rules of Civil Procedure states that:
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“The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1) (of the Federal Rules of Civil Procedure), a deposition taken by such means is taken in the district and at the place where the deponent is to answer questions.” |
b. Consular officers may be called upon to administer oaths to witnesses, generally on consular premises, who will then be deposed by telephone from the United States. Charge only the fee for administering oaths, since the requesting counsel will ask the questions by telephone and responses will be recorded in the United States by stenographic or other means.
7 FAM 926.3 Recording Depositions by Nonstenographic Means
(CT:CON-130; 03-22-2006)
a. Rule 30(b)(4) of the Federal Rules of Civil Procedure states that:
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“Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes (A) the officer's name and business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.” |
b. At present, the non-stenographic means referred to in Rule 30(b)(4) of the Federal Rules of Civil Procedure are tape recording and videotaping. The consular officer should amend the wording of the certification to state the means used to record the deposition. 7 FAM Exhibit 926.3 provides guidelines on recording depositions by a non-stenographic method (tape recording, video teleconference, etc.).
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See … ABA E Technology Report Trends in the Electronic Courtroom ABA GPSOLO Practice Management Technology Courtroom 21 Project National Center for State Courts (NCSC); NCSC Technology Administrative Office of U.S. Courts Pacer Service Center |
c. Counsel is responsible for providing the tape recording and videotape equipment. Embassy equipment, when available, may be used to make a duplicate recording of the deposition but advise counsel that the consular officer will assume no responsibility for the quality of the recording.
d. Transporting electronic equipment of the kinds used in recording depositions is not permissible in some foreign jurisdictions. Be prepared to advise requesting counsel of the possibility that the host country government may confiscate the equipment or otherwise require it’s pre-clearance into the host country.
e. In filing depositions executed by non-stenographic means, the consular officer should prepare written certification about both the administration of an oath to the witness and the video camera operator or operator of the recording device. Attach the certification to the videotape or tape recording, place it in an envelope, and seal it similar to the sealing of a deposition. (See 7 FAM 925.2 b.) Then send it to counsel or the court of pending action.
7 FAM 927 LIVE VIDEOCONFERENCE COURTROOM TESTIMONY
(CT:CON-949; 11-10-2022)
In recent years, posts abroad have been called upon to participate in live videoconference testimony directly to a courtroom in the United States. Such requests should be coordinated with CA/OCS/ACS and L/CA. The use of this procedure is dependent on the laws of the host country regarding the taking of testimony. If a Federal court in the United States orders a post to participate in such a proceeding, post should notify L/CA immediately to coordinate a response to the court.
7 FAM 928 THROUGH 929 UNASSIGNED
7 FAM Exhibit 921
GUIDELINES FOR TAKING DEPOSITIONS
(CT:CON-130; 03-22-2006)
THINGS TO REMEMBER CONCERNING THE SCHEDULING OF A DEPOSTION:
1. Are depositions permitted by host country law? If so, is notification to the Foreign Ministry required?
2. Is the requesting attorney an official of U.S. State,
local or Federal government? If so, obtain host
country clearance from the Foreign Ministry as appropriate.
3. Is the witness willing to be deposed?
4. Will the deposition be done with oral or written questions?
5. What date is proposed for taking the deposition? Is the date compatible with the consular officer’s schedule?
6. How many people will be attending the deposition?
7. Will the deposition take place on consular premises? If so schedule the use of a room large enough to accommodate the deposition.
8. Will a consular officer be needed to administer oaths to witnesses and others? Will the officer’s presence be required throughout the proceeding or can the officer withdraw after administering the oaths, subject to recall?
9. Will the services of a stenographer or interpreter/translator be required? Are such services available in the host country or must they be retained in the United States?
10. Is the evidence to be obtained using non-stenographic means, such as telephone, videotape, or more advanced technology? Is so, obtain host country authority, if appropriate.
11. Who will arrange for the witness, stenographer, and interpreter to meet counsel at the post at a designated hour? (Preferably requesting counsel.)
12. Who is paying for the deposition? Obtain a deposit or Federal appropriation number and fund code.
THINGS TO REMEMBER CONDUCTING THE DEPOSITION:
1. Administer oaths to stenographer, interpreter/translator, and witness as appropriate.
2. Consular officer withdraws, if appropriate, after instructing stenographer to record departure, enumerate names of those present, transcribe proceedings, and give transcript to the witness for review.
3. Stenographer and interpreter/translator execute affidavits of accuracy before consular officer.
4. Witness signs record of deposition before consular officer.
5. At close of deposition consular officer prepares final statement of account and closing certificate.
6. Consular officer collects fees required under the Schedule of Fees for Consular Services (22 CFR 22.1).
7. Deposition documents are arranged and fastened together.
8. Deposition is placed in a sealed envelope correctly endorsed and addressed, bearing the post's seal, and is registered if mailed.
7 FAM EXhibit 925.1(e)
AFFIDAVIT OF STENOGRAPHER, COURT REPORTER OR VIDEO OPERATOR
(CT:CON-130; 03-22-2006)
VENUE.
Japan )
(Name of Country) )
)
)
)
(Name of County, Province, etc.) )
) ss:
)
City of Tokyo )
(Name of City) )
)
)
Embassy of the United States of )
America )
(Name of Foreign Service Post) )
Before me, (Name of Consular Officer), (Title of Consular Officer) of the United States of America at Tokyo, Japan, personally appeared the individual named below who, being duly sworn, made the following statements (or, the statements set forth in the attached instrument):
I, (name of stenographer), certify that I am a stenographer; that I faithfully transcribed the responses to the questions posed to the witness, (name of witness), as interpreted from English to Japanese by (name of interpreter), interpreter, and that the responses transcribed accurately record the witness’ statements as interpreted.
(Signature of Stenographer)
(Typed Name of Stenographer)
(Date)
(Signature of Consular Officer)
(Typed Name of Consular Officer)
(Title of Consular Officer) of the United States of America
(SEAL)
(Date)
AFFIDAVIT OF INTERPRETER
VENUE.
Japan )
(Name of Country) )
)
)
(Name of County, Province, etc.) )
) ss:
City of Tokyo )
(Name of City) )
)
Embassy of the United States of )
America )
(Name of Foreign Service Post) )
Before me, (Name of Consular Officer), (Title of Consular Officer) of the United States of America at Tokyo, Japan, personally appeared the individual named below who, being duly sworn, made the following statements (or, the statements set forth in the attached instrument):
I, (name of interpreter), certify that I understand the English language and the Japanese language. To the best of my knowledge and belief I did faithfully act as interpreter during the taking of the deposition of (name of witness), translating the English interrogatories into Japanese and the Japanese responses into English; and that the responses transcribed by (name of stenographer), stenographer, accurately record the witness’s statements as interpreted by me.
(Signature of Interpreter)
(Typed Name of Interpreter)
(Date)
(Signature of Consular Officer)
(Typed Name of Consular Officer)
(Title of Consular Officer)
(SEAL)
(Date)
7 FAM Exhibit 925.1(f)
RECORD OF A DEPOSITION
(CT:CON-130; 03-22-2006)
Japan )
(Name of Country) )
)
(State/Province/District) )
) ss:
City of Tokyo )
(Name of City) )
)
Embassy of the United States of )
America )
(Name of Foreign Service Post)
Deposition of a witness, taken before me, (Name of Consul), Consul of the United States of America at Tokyo, Japan, under a commission (or notice) in a certain cause pending in the United States District Court for the Southern District of New York in the matter of (Name of Plaintiff v. Name of Defendant), (Docket Number)
I examined (name of witness) under oath as follows, at my office in Tokyo, Japan:
“Do you solemnly swear (or affirm) that you will tell the truth, the whole truth, and nothing but the truth, in answer to the several questions now to be put to you?”
Because it appeared that the witness, (name of witness), could not under-stand the English language (or could not intelligently testify in the English language) but understood well the Japanese language, (name of interpreter), interpreter, who understands both languages well, was sworn in as follows:
“Do you solemnly swear (or affirm) that you know the English and (name of) languages and that you will truly and impartially interpret (or translate) the oath to be administered and questions to be asked of (name of witness), a witness, now to be examined, out of the English into the (name of) language, and that you will truly and impartially interpret (or translate) the answers of (name of witness) out of the (name of) language), into the English language?” and interpreted accordingly.
The questions, cross questions, and answers of the witness (or where the questions are written, the answers of the witness to the written questions) were taken down and transcribed by (name of stenographer), stenographer, who was sworn in as follows
“Do you solemnly swear (or affirm) that you know the English and (name of appropriate language) languages and that you will truly and impartially reduce to writing or (take down notes and faithfully transcribe) the questions to be asked of the witness and the testimony of (witness’ name), a witness now to be examined?”
The transcript was then read by the witness (or to the witness by interpreter) and was signed by the witness in my presence. (name and address of witness, profession), of lawful age, after being duly sworn by me deposes and says:
To the first question: My name is (Name of witness)
To the second question: I am employed at (name of employer).
(AND SO FORTH)
(If more than one witness is being deposed in a given case, the venue and the first paragraph citing the name of the case need not be repeated. Begin record of deposition of the second witness with repetition of the interpreter/stenographer paragraphs.)
(Witness’s Signature)
(Typed Name of Signature)
(Date)
(Seal)
7 FAM Exhibit 925.1(g)
STATEMENT OF ACCOUNT
(CT:CON-365; 03-07-2011)
|
STATEMENT OF ACCOUNT Schedule of Fees Item No. |
||
|
52a |
Scheduling, Arranging Appointments for depositions, including depositions by video teleconference (@ $1,283 per daily appointment |
$1,283 |
|
52b |
Attending or taking depositions or executing commission to take testimony (@ $309 per hour or part thereof) |
$309 |
|
52e |
Providing seal and certification of depositions |
$415.00 |
|
TOTAL CONSULAR FEES FOR TAKING DEPOSITION |
$2,007.00 |
|
|
Expense for mailing original deposition record to (Name and address) |
$55.00 |
|
|
TOTAL COST OF DEPOSITION |
$2,062.00 |
|
|
STATEMENT OF COST OF ONE COPY OF DEPOSITION |
||
|
76 |
Photocopying or otherwise duplicating a document (@ $1.00 per copy of each page (75 pages total) |
$75.00 |
|
41a |
Certifying under official seal that a copy or extract made from a private document is a true copy. (First Service $50) |
$50.00 |
|
TOTAL FEES FOR ONE CERTIFIED COPY OF SEVENTY FIVE PAGE DEPOSITION |
$125.00 |
|
|
22 CFR 22.1 Schedule of Fees for Consular Services (June 2010) |
||
|
No. |
Service |
Fee |
|
52 |
Taking depositions or executing commissions to take testimony |
|
|
a. |
Scheduling, arranging appointments for depositions, including depositions by video teleconference (per daily appointment) |
$1,283.00 |
|
b. |
Attending or taking depositions, or executing commissions to take testimony (per hour or part thereof) |
$309 |
|
c. |
Swearing in witnesses for telephone deposition |
$231 |
|
d. |
Supervising telephone Per Hour Plus Expenses. Depositions (per hour or part thereof over the first hour) |
$231 |
|
e. |
Providing seal and certification of depositions |
$415.00 |
|
53 |
Exemptions: Deposition or executing commissions to take testimony. Fees will not be charged when the service is performed: |
|
|
a. |
At the direct request of any Federal Government agency, any State or local government, the District of Columbia, or any of the territories or possessions of the United States (unless significant time required and/or expenses would be incurred).
|
No Fee |
|
b. |
Executing commissions take testimony in connection with foreign documents for use in criminal cases when the commission is accompanied by an order of Federal court on behalf of an indigent party. |
No Fee |
7 FAM Exhibit 925.1(h)
CONSULAR CLOSING CERTIFICATE OF A DEPOSITION
(CT:CON-130; 03-22-2006)
VENUE
Japan )
(Name of Country) )
)
)
(State/Province/District) )
) ss:
City of Tokyo )
(Name of City) )
)
Embassy of the United States of )
America )
(Name of Foreign Service Post) )
I do hereby certify that pursuant to a commission issued by the United States District Court for the Southern District of New York (or notice of the taking of a deposition), I examined (name of witness) under oath as follows, at my office in Tokyo, Japan.
“Do you solemnly swear (or affirm) that you will tell the truth, the whole truth, and nothing but the truth, in answer to the several questions now to be put to you?”
The witness, known to me to be the person named and described in the questions and commission. (Name of Interpreter) acted as interpreter, having been sworn by me as follows:
“Do you solemnly swear (or affirm) that you know the English and (name of) languages and that you will truly and impartially interpret (or translate) the oath to be administered and questions to be asked of (name of witness), a witness, now to be examined, out of the English into the (name of) language, and that you will truly and impartially interpret (or translate) the answers of (name of witness) out of the (name of) language, into the English language?”
Evidence was taken down by (name of stenographer), stenographer, who was sworn by me:
“Do you solemnly swear (or affirm) that you know the English and (name of appropriate language) languages and that you will truly and impartially reduce to writing or (take down notes and faithfully transcribe, video record) the questions to be asked of the witness and the testimony of (witness’ name), a witness now to be examined?”
And after being read over and corrected by the witness, was signed by the witness in my presence. I further certify that I am satisfied that neither (name of witness) or myself are in any way related to any of the parties to this cause or in any manner interested in the result thereof.
In witness whereof I have signed this certificate and affixed the seal of the Embassy of the United States of America at Tokyo, Japan.
(Signature of Consular Officer)
(Typed Name of Consular Officer)
(Title of Consular Officer)
(SEAL)
(Date)
7 FAM Exhibit 925.3
SAMPLE OF A FORMAT FOR INTERNAL ENVELOPE RETURNING A DEPOSITION
(CT:CON-130; 03-22-2006)
United States District Court for the Southern District of California
Modular Concepts of CA, Plaintiff )
) CIV File No 05-67379
v. ) Deposition of Robert Shaw
)
Starr Specialists, Inc., Defendant)
7 FAM Exhibit 926.3
GUIDELINES FOR RECORDING DEPOSITIONS BY NONSTENOGRAPHIC MEANS
(CT:CON-130; 03-22-2006)
GUIDELINES FOR RECORDING DEPOSITIONS BY NON-STENOGRAPHIC MEANS
1. The recording equipment shall be of such quality as to produce an accurate and trustworthy record, and shall be provided by the requesting party.
2. An independent operator, after being duly sworn, shall operate and monitor the recording equipment to ensure that a recording of the testimony is being made.
3. Each participant in the deposition shall be equipped with an individual microphone.
4. Two original recordings shall be made, each on a separate recording machine, and each receiving its signal from the microphones. Specifically, one is not to be the re-recording of the other.
5. The two recording machines upon which the originals are made are to be operated in tandem. They shall be equipped with digital counters to facilitate the making of a log index.
6. Counsel must keep in mind that one of the significant problems with the use of tape recorders is the identification of the speaker. The record must accurately reflect the parties to the deposition, as well as identify the speakers at any particular time. Prior to the start of direct examination, each person who speaks on record, including counsel, should identify himself or herself. If the subsequent testimony is limited to an exchange between two parties, no further words identifying the speakers are necessary. However, any third party, such as opposing counsel, who interjects any statements, must precede interjection with words of identification.
7. Objections should be made during the taking of the deposition.
8. The requesting party is to provide an independent third party operator, who shall, in addition to monitoring the equipment, be responsible for making a log-index. Such index must include the subject matter being discussed, cross-referenced to the reading on the digital counter, a listing of exhibits, and the names of all parties to the deposition.
9. At the close of the deposition, the independent third party’s certification must be re-corded orally. Thereafter, one of the originals shall be sealed in an appropriate container in the presence of counsel. The third party shall also certify the correctness and completeness of the recording in writing in the same manner a stenographic reporter certifies the typed record of a deposition. The original, with the certification attached thereto, shall be immediately filed with the clerk of the court. The original so filed may not be removed from the court’s custody except upon written order of the court.
10. The independent third party is to retain possession of the other original, which may be used for the production of duplicates for parties to the suit.