NOTES TO RULE 28
HISTORY: (Amended Mar. 19, 1948; July 1, 1963; Aug. 1, 1980; Aug. 1, 1987; Dec. 1, 1993)
Notes of Advisory Committee on Rules.
In effect this rule is substantially the same as U.S.C., Title 28, former § 639 (Depositions de bene esse; when and where taken; notice). U.S.C., Title 28, former § 642 (Depositions, acknowledgements, and affidavits taken by notaries public) does not conflict with subdivision (a).
Notes of Advisory Committee on 1946 amendments to Rules.
Note. The added language [in subdivision (a)] provides for the situation, occasionally arising, when depositions must be taken in an isolated place where there is no one readily available who has the power to administer oaths and take testimony according to the terms of the rule as originally stated. In addition, the amendment affords a more convenient method of securing depositions in the case where state lines intervene between the location of various witnesses otherwise rather closely grouped. The amendment insures that the person appointed shall have adequate power to perform his duties. It has been held that a person authorized to act in the premises, as, for example, a master, may take testimony outside the district of his appointment. Consolidated Fastener Co. v Columbian Button & Fastener Co. CC ND NY 1898, 85 Fed 54; Mathieson Alkali Works v Arnold Hoffman & Co. CCA 1st, 1929, 31 F2d 1.
Notes of Advisory Committee on 1963 amendments to Rules.
The amendment of clause (1) is designed to facilitate depositions in foreign countries by enlarging the class of persons before whom the depositions may be taken on notice. The class is no longer confined, as at present, to a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States. In a country that regards the taking of testimony by a foreign official in aid of litigation pending in a court of another country as an infringement upon its sovereignty, it will be expedient to notice depositions before officers of the country in which the examination is taken. See generally Symposium Letters Rogatory (Grossman ed 1956); Doyle, Taking Evidence by Deposition and Letters Rogatory and Obtaining Documents in Foreign Territory, Proc ABA, Sec Int'l & Comp L 37 (1959); Heilpern, Procuring Evidence Abroad, 14 Tul L Rev 29 (1939); Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale LJ 515, 526--29 (1953); Smit, International Aspects of Federal Civil Procedure, 61 Colum L Rev 1031, 1056--58 (1961).
Clause (2) of amended subdivision (b), like the corresponding provision of subdivision (a) dealing with depositions taken in the United States, makes it clear that the appointment of a person by commission in itself confers power upon him to administer any necessary oath.
It has been held that a letter rogatory will not be issued unless the use of a notice or commission is shown to be impossible or impractical. See, e.g., United States v Matles, 154 F Supp 574 (ED NY 1957); The Edmund Fanning, 89 F Supp 282 (ED NY 1950); Branyan v Koninklijke Luchtvaart Maatschappij, 13 FRD 425 (SD NY 1953). See also Ali Akber Kiachif v Philco International Corp. 10 FRD 277 (SD NY 1950). The intent of the fourth sentence of the amended subdivision is to overcome this judicial antipathy and to permit a sound choice between depositions under a letter rogatory and on notice or by commission in the light of all the circumstances. In a case in which the foreign country will compel a witness to attend or testify in aid of a letter rogatory but not in aid of a commission, a letter rogatory may be preferred on the ground that it is less expensive to execute, even if there is plainly no need for compulsive process. A letter rogatory may also be preferred when it cannot be demonstrated that a witness will be recalcitrant or when the witness states that he is willing to testify voluntarily, but the contingency exists that he will change his mind at the last moment. In the latter case, it may be advisable to issue both a commission and a letter rogatory, the latter to be executed if the former fails. The choice between a letter rogatory and a commission may be conditioned by other factors, including the nature and extent of the assistance that the foreign country will give to the execution of either.
In executing a letter rogatory the courts of other countries may be expected to follow their customary procedure for taking testimony. See United States v Paraffin Wax, 2255 Bags, 23 FRD 289 (ED NY 1959). In many noncommon-law countries the judge questions the witness, sometimes without first administering an oath, the attorneys put any supplemental questions either to the witness or through the judge, and the judge dictates a summary of the testimony, which the witness acknowledges as correct. See Jones, supra, at 530--32; Doyle, supra, at 39--41. The last sentence of the amended subdivision provides, contrary to the implications of some authority, that evidence recorded in such a fashion need not be excluded on that account. See The Mandu, 11 F Supp 845 (ED NY 1935). But cf. Nelson v United States, 17 Fed Cas 1340 (No. 10,116) (CCD Pa 1816); Winthrop v Union Ins. Co. 30 Fed Cas 376 (No. 17,901) (CCD Pa 1807). The specific reference to the lack of an oath or a verbatim transcript is intended to be illustrative. Whether or to what degree the value or weight of the evidence may be affected by the method of taking or recording the testimony is left for determination according to the circumstances of the particular case, cf. Uebersee Finanz-Korporation, A. G. v Brownell, 121 F Supp 420 (DDC 1954); Danisch v Guardian Life Ins. Co. 19 FRD 235 (SD NY 1956); the testimony may indeed be so devoid of substance or probative value as to warrant its exclusion altogether.
Some foreign countries are hostile to allowing a deposition to be taken in their country, especially by notice or commission, or to lending assistance in the taking of a deposition. Thus compliance with the terms of amended subdivision (b) may not in all cases ensure completion of a deposition abroad. Examination of the law and policy of the particular foreign country in advance of attempting a deposition is therefore advisable. See 4 Moore's Federal Practice paras. 28.05--28.08 (2d ed 1950).
Notes of Advisory Committee on 1980 amendments to Rules.
The amendments are clarifying.
Effective date of 1980 amendments. Section 2 of the Order of April 29, 1980, 446 US 995, 64 L Ed 2d, xlv, -- S Ct --, which adopted the 1980 amendments to this Rule, provided "That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on August 1, 1980, and shall govern all civil proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending."
Preliminary draft of proposed amendment. A preliminary draft, dated September, 1989, proposed amendments to Rule 28 as follows:
(a) [Unchanged]
(b) In Foreign Countries. Subject to the provisions of Rule 26(a), depositions may be taken in a foreign country (1) pursuant to any applicable treaty or convention, or (2) pursuant to a letter of request (whether or not captioned a letter rogatory), or (3) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (4) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony. A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or by descriptive title. A letter of request may be addressed 'To the appropriate Authority in [here name the country].' When a letter of request or any other device is used pursuant to any applicable treaty or convention it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
(c) [Unchanged]
Notes of Advisory Committee on 1989 proposed amendments to Rule.
This revision is intended to make effective use of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and of any similar treaties which the United States may enter into in the future, as sources of additional methods for taking depositions abroad. Pursuant to revised Rule 26(a), the party taking the deposition is obliged to conform to an applicable treaty or convention if an effective deposition can be taken by such internationally approved means, even though a verbatim transcript is not available or testimony cannot be taken under oath. The term "letter of request" has been substituted in the rule for the former term, "letter rogatory" because it is the primary method provided by the Hague Convention. A letter rogatory is essentially a form of letter of request. There are several other minor changes that are designed merely to carry out the intent of the other alterations.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendment is technical. No substantive change is intended.
Notes of Advisory Committee on 1993 amendments to Rules.
This revision is intended to make effective use of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and of any similar treaties that the United States may enter into in the future which provide procedures for taking depositions abroad. The party taking the deposition is ordinarily obliged to conform to an applicable treaty or convention if an effective deposition can be taken by such internationally approved means, even though a verbatim transcript is not available or testimony cannot be taken under oath. For a discussion of the impact of such treaties upon the discovery process, and of the application of principles of comity upon discovery in countries not signatories to a convention, see Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987).
The term "letter of request" has been substituted in the rule for the term "letter rogatory" because it is the primary method provided by the Hague Convention. A letter rogatory is essentially a form of letter of request. There are several other minor changes that are designed merely to carry out the intent of the other alterations.