Granted, this issue doesn't come up that often, but what are you supposed to do when the evidence and witnesses you need for your case are located overseas, outside the jurisdiction of your court?
We recently had that very issue come up in the context of a non-compete case we are currently litigating before a New York County trial court, and needed the Court's help in order to secure the testimony under oath of a witness that is located roughly 6,000 miles away, in the Middle East.
In short, my client is suing for damages they allegedly sustained as a result of one of their rogue salesman diverting their sales leads to a competitor.
"Why did you need his testimony?" you ask.
For two (2) reasons:
First, although my client, his former employer, arbitrated their claims against him - and won - the panel before whom the arbitration was held did not put any of the witnesses under oath - a prerequisite for having this witness's testimony being admissible for the purposes of trial in New York against the remaining defendants (the competitors to whom the sales leads were supposedly diverted); and,
Second, since the remaining defendants did not participate in the arbitration, they did not have the opportunity to question this witness, which is also a sine qua non, or necessary condition, to having this witness's testimony being deemed admissible at trial under New York law.
What We Were Forced to Do
In this instance, we were compelled to ask the New York court to issue a "Letter of Request" to the directorate of the courts in that overseas jurisdiction, in this case, Israel, outlining the documents and testimony we wanted from this witness, and the reasons why it was needed for the prosecution of our action, and asking that tribunal to issue its own order compelling the witness to appear at a specific date and time on threat of judicial contempt.
That's not all; we also needed to ask for permission to 1) conduct the deposition in accordance with New York procedures; that we be allowed to conduct the questioning of the witness, rather than being forced to retain local counsel to conduct the questioning; and, 3) to conduct the deposition in the English language, as none of those criteria are a given.
And that's precisely what happened.
Why Such Motions (and Depositions) Are Extremely Rare
There are a number of reasons this doesn't happen very often, including the following:
- Most cases do not inherently involve witnesses or discovery that is located overseas; and,
- To the extent such information does exist, it is unusual for that evidence - or the case in general - to warrant going through the trouble of seeking judicial relief, service of the papers via the Hague Convention, and traveling to the Middle East for purposes of a deposition.