Taking Depositions in China Part 1: It Can Be Done

In theory.

Here's the scenario: you're a litigator preparing a case in the United States. You have reached the onerous task of discovery. A key witness is located in the PRC. You, or your adversary, need to take the Chinese witness's deposition. The witness is unable to come to the U.S., and their deposition must be taken in China. How do you go about taking this deposition, or preventing the other party from taking the deposition?

Two agreements, one bilateral and one international, govern this scenario. The earliest agreement is the U.S.-China Consular Convention of 1980. Article 27(1) of this Convention allows consular officers of either nation to take and witness statements and testimony for use in connection with a legal proceeding of either nation. China clarified this Convention in a series of diplomatic notes from the Chinese Ministry of Foreign Affairs to the US Embassy in Beijing. In Diplomatic Note No. 106 dated 6 November 1981, Diplomatic Note No. 88 dated 11 September, and Diplomatic Note No. 77 dated 11 September 1996, the Chinese government has stated that depositions under oath can only be taken by a US Consular official or foreign attorney if Beijing gives permission after receiving a letter rogatory through the proper diplomatic channels. The proper diplomatic channel is through the Bureau of International Judicial Assistance of the Ministry of Justice of the People's Republic of China. Beijing has only granted permission for a limited deposition once, in 1989 for a heroin smuggling criminal case in California District Court. And in connection with this permission, Beijing told the U.S. government that the grant of permission should not be construed as precedent.

The international agreement covering depositions is the Hague Conference on Private International Law Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which China acceded to on 24 June 1998. In China's declaration of accession, they declared that they would not be bound by Articles 16-22 of Chapter II, and would only be bound by Article 15 of Chapter II. Article 15 allows voluntary depositions by consular officials, but only if granted permission by the Bureau of International Judicial Assistance of the Ministry of Justice of the People’s Republic of China. No depositions have been allowed under this Convention.

Only one limited deposition of a Chinese citizen in China has been allowed in 25+ years of China signing agreements allowing depositions to be taken. There is a very good reason for this. Depositions require the swearing of an oath. China has very strict laws regarding the administering and swearing of oaths. China likely regards the administering of oaths by foreign attorneys and consular officials as a "violation of China's judicial sovereignty." When foreign attorneys or consular officials administer an unauthorized oath in China, the penalties include arrest, detention, expulsion, or deportation of all participants in the oath. Even conducting a deposition in a hotel room with an oath by private persons could result in criminal penalties under Chinese law.

If you are involved in litigation and wish to take a deposition of a Chinese citizen, and you would mind having to sit in a Chinese prison, then you should probably seek permission from the Chinese authorities. If you are on the other side, and want to block the deposition of a Chinese citizen from being taken then you should raise an objection to the deposition as illegal under Chinese law, in a timely manner.

Over the next few days, I'm going to put up a few more posts on depositions in China. Two will be on exceptions to the inability to take depositions in China, one tried and true but illegal, another speculated upon in a law review article. Another post will tell the story of the one deposition that was allowed. The deposition involves all the good elements of a Hong Kong action flick: guns, drugs, and Janet Reno.

Most of the information in this post can be found at the U.S. Department of State. Their time lines and facts had to be cleared up a little. If I've got anything wrong, please let me know.