Taking Depositions in China Part 2: Just Do It

[Note: The purpose of the following is to show how to make sure that your opponent in litigation does not succeed in taking illegal depositions in China. By no means is this an endorsement of violating Chinese law.]

In Popular Imports v. Wong's International, 166 F.R.D. 276 (E.D.N.Y. 1996), Popular Imports was denied a motion to suppress eight depositions that were taken in China based on the theory that the depositions were taken illegally under Chinese law. "On June 7, 1995 Wong's served notices of deposition on eight non-party witnesses located in China." Two days later, Popular Imports objected to the depositions because of the burden in traveling to China. Popular Imports did not object at this time on the grounds that it was illegal to take depositions in China without a letter rogatory submitted through the proper diplomatic channels. The judge did not accept the objection and directed the parties to travel to China and take the deposition with a local Public Security Officer administering the oath. The lawyers traveled to China, hired a notary public, and took the depositions June 26-28, 1995. On September 8, 1995, Popular Imports challenged the legality of the depositions by alerting the court that the depositions were illegally taken under Chinese law, and a motion to suppress the illegally taken depositions followed.

Magistrate Judge Mann denied the motion to suppress. The U.S. District Court for the Eastern District of New York affirmed the decision of Judge Mann. Federal Rule of Civil Procedure 29 controls stipulations between the parties regarding depositions. The court held that, "where, as here, a party fails to raise issues of foreign illegality until after a deposition has been taken, that objection has been waived, the parties' Rule 29 stipulation controls, and the deposition 'may be used like other depositions.'"

The take away from all of this: If you don't want the other side to take depositions of Chinese witnesses, make sure that you object on the illegality of taking depositions without going through the proper diplomatic channels before the depositions are taken. Otherwise, your opponents are free to use these illegally taken depositions. All of the case law on this decision is positive.