Who Can Conduct a Hague Evidence Deposition?
As our readers may know, the Hague Evidence Convention allows for litigators to collect evidence in another country in connection with a pending lawsuit. We discuss the Hague Evidence Convention process at length in our Guide. Under this process, a witness (i.e., an Israeli witness) can be compelled to undergo a deposition in connection with a foreign proceeding (i.e., a U.S. proceeding).
Israeli law and practice are very flexible and pragmatic when it comes to taking the deposition of an Israeli witness in a Hague Evidence proceeding. Generally, an Israeli court adjudicating an incoming request from a foreign country (i.e., a U.S. court) will appoint a local attorney to supervise the collection of evidence and to take the deposition.
Does the attorney need to be a licensed Israeli lawyer? Can the lawyers for the parties in the U.S. proceeding (i.e., foreign counsel) conduct or participate in the deposition?
Section 17 of Israel’s Judicial Assistance Between Countries Law, 5758-1998 (the “Judicial Assistance Law”) states that a court may allow an individual who is not an Israeli-licensed attorney to cross-examine the witness if the court is convinced that the individual is authorized to conduct such an examination in the originating country. Section 17 also allows for the witness to be represented by foreign counsel (i.e., U.S. counsel).
The practical implication of this provision is that the U.S. (or other foreign) attorneys who are handling the case in the U.S. can continue to control the collection of evidence and the deposition in Israel. They simply need to submit a request to the Israeli court asking for leave to supervise the collection of evidence and the deposition. Rule 14 of Israel’s Judicial Assistance Between Countries Regulations, 5759-1999 provides that such a request should be submitted to the court at least 15 days before the date of the taking of evidence (i.e., the deposition).
To the extent the U.S. attorney wishes to conduct the deposition, we recommend that the initial letter of request (for more on this, see our Guide), contain a provision with such a request, including a statement that the attorney is authorized to conduct such a deposition in the originating state (i.e., the U.S.).
The fact that foreign attorneys can conduct the deposition in Israel is just another example of Israel’s practical and flexible policy in implementing the Hague Evidence Convention.