Depositions of witnesses residing in Mexico, at one time a relatively rare occurrence, are becoming commonplace for large law firm litigators. This is because many U.S.-based businesses have relocated manufacturing operations in Mexico in order to take advantage of free trade agreements, lower costs for skilled labor, and proximity to U.S. consumers. General Motors, Ford Motors, Honeywell, Medtronics, Bridgestone Tires, and General Electric are just some of the large U.S. companies with substantial manufacturing operations in Mexico.
The [Hague] convention creates a legal framework for international depositions. It establishes baseline obligations for each signatory country, allows each country to establish the extent and fine-print details of its agreement to allow pretrial depositions within its borders, and it provides contact information for the governmental entity in charge of administering the convention.
It should come as no surprise that deposition witnesses in U.S. courts are increasingly likely to have a Mexican address. When that happens, local pretrial discovery rules take a backseat to international conventions.
Mexico, along with 66 other countries, is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The convention creates a legal framework for international depositions. It establishes baseline obligations for each signatory country, allows each country to establish the extent and fine-print details of its agreement to allow pretrial depositions within its borders, and it provides contact information for the governmental entity in charge of administering the convention.
In the case of Mexico, that government entity is the Mexico Secretaría de Relaciones Exteriores. The details of Mexico’s participation in the Hague Evidence Convention, as well as contact information, are spelled out – in English – on this page. Staff speak both Spanish and English.
Ascertaining the citizenship of a potential deposition witness located in Mexico is the first step to navigating the Mexican system. If the witness is a U.S. citizen and the witness is willing to be deposed, then the deposition may be conducted without seeking assistance from Mexican authorities.
If, however, the deposition witness is a Mexican or other country’s national, then the party seeking to take the deposition must work to contact Mexican authorities and submit a formal letter of request to depose the witness. The letter must be written in Spanish. Proposed deposition questions must be submitted along with the request, although the questions will not be shared with the witness in advance. Mexico does not regulate which types of technology may be used to conduct the deposition.
The deposition may be required to take place at a U.S. Embassy or consulate office. According to the U.S. State Department guidance, “oral depositions or depositions on written questions may be taken on notice by U.S. consular officers or by private attorneys from the United States or Mexico at the U.S. Embassy, one of the U.S. Consulates or at another location such as a hotel or office.”
These procedures must be followed regardless of whether a Mexican (or some other non-U.S. national residing in Mexico) witness is willing to submit to the discovery deposition. Mexican authorities advise that the entire process may take as long as six months to complete.
Though this list is far from complete, here are a few considerations that all litigators should weigh when faced with a discovery deposition in Mexico:
- Explore proceeding via stipulation with the opposing party’s counsel whenever possible. U.S.-based litigators enjoy considerable freedom to write their own discovery ground rules.
- Distinguish between parties and non-parties as deposition witnesses. Mexican laws are most protective of citizens who are not parties to the litigation.
- If the witness is a Mexican citizen, counsel should work with appropriate Mexican authorities to learn whether an interpreter and a local lawfully authorized official will be necessary to administer the oath.
- Confirm that the court reporter can (a) travel to the chosen deposition location, (b) lawfully administer the oath if necessary, (c) understand and accurately capture the language spoken by the witness, and (d) deliver the transcript on counsel’s chosen deadline.
- In all cases, counsel should decide whether an interpreteror legal videographer will be necessary.
The need to obtain testimony from witnesses located outside the United States is a compelling use case for remote depositions. Remote depositions reduce travel costs, ease scheduling among litigators based in different states (or countries), and bring all interested parties and litigation teams into a convenient, productive virtual space.
In fact, the desire to avoid long-distance travel in order to conduct a discovery deposition is one of the most commonly accepted legal justifications for insisting on a remote deposition over an adverse party’s objection. Experienced deposition services providers can be a trusted partner in all deposition planning activities, particularly when navigating the unfamiliar terrain of international depositions.
