Agreement or subpoena. Attorneys seeking to depose witnesses in England & Wales and/or obtain production of documents can either do so (1) voluntarily by agreement or (2) by compulsion under subpoena by order of the English High Court. A voluntary deposition can be on terms agreed between the parties, including as to the applicable law and procedure; the parties are at liberty to agree anything they want. However, if no agreement can be reached then a court-ordered deposition must comply with the applicable rules of English law and practice.
Letter of Request. If there is no agreement then, the applicant seeking to depose the witness must first apply to the US court to issue a letter of request to the English High Court for the deposition of a witness in England and Wales in support of foreign proceedings under the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The Letter of Request should contain details of the claim and identify the potential witness(es), details of the evidence sought and any documents they are required to disclose. It is advisable to seek English law advice at this point as the Letter of Request must be carefully drafted to ensure compliance with the English rules or it risks rejection when it is sent to England to be enforced.
High Court. Once the Letter of Request has been issued and transmitted to the English Court, English lawyers must then apply to the High Court in London for an order to give effect to the Letter of Request and to appoint an "examiner" who will be responsible for supervising the deposition. The High Court has a wide range of powers, including orders for the examination of witnesses, production of documents, inspection, recording or detention of property, sampling and/or experimenting on property, and medical examination or blood/DNA testing of individuals, and any or all of these may be applied for. Orders will often specify the documents that must be produced and may specify the questions that the applicant wishes to put to the witness. The application can be made with or without notice to the other party and the potential witness, but if made without notice, the other party and/or witness will then have an opportunity to apply to dismiss part or all of the order if there are grounds to do so.
Examiner. The examiner is an independent individual, approved by the High Court, who performs a quasi-judicial role. They must be "fit and proper" and would usually be named in the affidavit supporting the letter of request. Although there is nothing to preclude a foreign lawyer or consular officer from fulfilling this role, it is usually preferable to use an English lawyer where English law applies. There is no such restriction if a deposition is being taken by agreement. The examiner's fee and expenses are payable by the party applying for the deposition.
Complying with the English rules. The High Court's jurisdiction to order the deposition is prescribed by English law and must comply with the usual rules of English law and practice. There is provision under the Hague Convention for an applicant to request a special procedure, but it must still be compatible with English law. This imposes limits on the type of evidence that can be sought. In particular, the following restrictions are in place:
- Pre-trial discovery. The High Court has no power to order the taking of evidence in the manner of pre-trial discovery in the US. In England, these requests are commonly known as "fishing expeditions" and are prohibited. English lawyers can advise on whether requests are compliant when drafting the letter of request. Generally speaking the permissible disclosure which can be sought is significantly narrower than would be permitted in the US;
- General discovery. The High Court will order a witness to produce documents, but will not permit the general discovery of documents other than those specific documents specified in the order as appearing or likely to be in the witnesses' possession custody or power. It is important to give thought to the scope of the documents sought prior to issuing the letter of request. Requests which are not specific enough will be rejected.
- Examination. The examination must be conducted as if the witness were giving evidence at an English trial. Under English rules of procedure, the party issuing the letter of request is deemed to be calling the witness. Their lawyers would only be entitled to ask questions appropriate for examination in chief or re-examination and could not lead or cross-examine the witnesses. The primary effect of this is that the applying party cannot go behind the answers given or seek to demonstrate they are inaccurate by cross-examination, though an examining party may put documents to the witness to solicit his or her answers to relevant questions. The other party would be entitled to cross-examine the witness after the examination is complete by the applying party. The examiner will ensure that the appropriate procedure is followed and will prevent questions being put which would not be allowed under English procedural rules.
- Privilege. Witnesses may refuse to answer questions (and/or refuse to disclose documents) under English and/or US law.
Mechanics. Depositions must be transcribed. They will often take place in the offices of English lawyers but can be held in any conference rooms.
Tactical advantage. There is a significant difference between depositions taken voluntarily and those taken under the Hague Convention. An applicant may benefit from the more flexible approach permitted by agreement. A witness or the opposing party may benefit from the more rigid English procedure.