The Covid-19 crisis and shelter-in-place orders have forced the legal profession to adapt to new circumstances when it comes to evidence gathering and witness depositions in aid of foreign proceedings. Depositions are now taken virtually which could soon be the norm rather than the exception. This article describes the process of taking oral testimony of a Swiss witness by remote means and highlights possible pitfalls from a Swiss law perspective.
The cross-border taking of evidence in Switzerland is governed by the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention). The Hague Evidence Convention in principle entitles not only courts but any duly appointed person (commissioners), including the attorneys of the parties, to take evidence abroad. Examinations of a Swiss-based witness under oath, for example in the context of US discovery proceedings, are generally permissible from a Swiss perspective. Switzerland however has a blocking statute in place which prohibits unauthorized activities by foreign states on Swiss soil. The examination of witnesses located in Switzerland by commissioners appointed by foreign courts hence require prior authorization from the Federal Department of Justice and Police, irrespective of whether the deposition is conducted in person or by remote means such as video conferencing. The request must be addressed to the central authority of the canton in which the taking of evidence is to take place. After examination of the request, the central authority of the canton will then forward the request to the Federal Department of Justice and Police which will render its decision and serve it on the petitioner. The request does not necessarily have to be submitted by the foreign court. Instead, it may also be submitted by a party or its Swiss representative. In this case, the request must be accompanied by a power of attorney as well as an authorization issued by the competent foreign court authorizing the applicant to take evidence. The request must – amongst other things – identify the nature of the proceedings for which evidence is sought and specify the evidence to be obtained. In view of potential sanctions under Swiss criminal law, it appears paramount to file a request covering all relevant aspects of, e.g., a deposition. The fees in connection with the decision rendered by the Federal Department of Justice and Police are in a range of CHF 500-5’000, depending on the amount in dispute and the complexity of the request.
Rights of Swiss witness
The witness concerned must be summoned in the language of the place where the evidence is to be taken. A translation accompanying the foreign deposition notice is sufficient. Further, the witness must be informed that it may consult legal counsel. He or she is not obliged to appear or participate in the taking of evidence in any way. In practice, this means that the witness may terminate the cooperation or discontinue the taking of evidence at any time. The witness may also refuse to give evidence in so far as he or she has a privilege or duty to refuse to give evidence under the law of Switzerland or under laws or the requesting state. Finally, evidence must be taken without the use of any form of coercion vis-à-vis the witness.
Responsibilities of commissioners
The commissioners, e.g. the duly authorized counsels of both parties, are responsible for ensuring that the taking of evidence proceeds in accordance with the request filed by the applicants, the authorization of the Swiss authorities, the foreign order authorizing the parties to take evidence as well as applicable law. Applicable law comprises the Hague Evidence Convention and confidentiality provisions of Swiss criminal law, in particular art. 321 and 273 Swiss Criminal Code.
Conduct of deposition
Under the current circumstances, depositions are often taken entirely online with the parties, the witness, court reporters and Swiss counsel participating remotely from around the globe. Virtual depositions are usually hosted by one or more service providers which administer the online meetings and provide technical support if needed. They also send out invitations to the participants with the link to a virtual meeting room a few days ahead of the deposition. During the deposition, the moderator may show deposition exhibits in real-time by way of screen sharing, including the possibility to mark or highlight certain paragraphs or sections. Real-time transcription, if provided, is also available on the screen of each participant.
Within the framework of the Hague Evidence Convention, depositions are in principle conducted in accordance with the law of the requesting state provided that the conduct is not incompatible with Swiss law or contrary to the permission granted by the Swiss authorities. For these purposes, it is usually advisable that Swiss counsel of both parties attend the deposition. To prevent the commissioners from violating Swiss law, Swiss counsel should work closely with the commissions when preparing the deposition.