7 minute read | November.17.2016
You have a case involving a witness in Japan. Maybe the witness is a corporate custodian, or a key executive of a party. For whatever reason — a witness’s inability to travel, discovery rules, or simple agreement of the parties — the witness is going to be deposed in Japan. Now what? Based on our own experience, our team offers the following practical observations and suggestions to make your own experience smoother, whether you are taking or defending a Japanese deposition.
Unlike, for example, in China, it is at least possible to take a deposition in Japan for later use in U.S. litigation. But the process is nowhere near as simple as holding a deposition in the U.S., or even in many foreign locations. Which brings us to our first suggestion — if you can, secure agreement of the parties and witness to have the deposition in Hong Kong. This is not to say that depositions cannot be taken in Japan with successful results, and there are situations, including our own, where Japan really was the only option. But the savings in effort, time and money, and potentially additional deposition time on the record, warrant at least a closer look at an alternative venue.
The primary reason depositions in Japan can be more complicated than elsewhere is that depositions for use in U.S. litigation can only be taken in three conference rooms in the entire country. That’s it. The depositions must occur in either (1) the U.S. Embassy in Tokyo, or (2) the U.S. Consulate in Osaka. Tokyo’s lone conference room can hold eight people. Osaka has one larger conference room — although even that will only hold 15 people — and another eight-person room. Depositions cannot be moved, even with agreement of the parties, to a hotel, or law firm, or anywhere other than these three rooms. There are no telephonic depositions, and while we did not try this, video-conference depositions are reported to be only available via special request to the Japanese government and rarely granted.
Originally published in Law360; reprinted with permission.