Deposition in Thailand

[stevemowry]

I am a US citizen retired in Thailand that is also a plaintiff in civil litigation in Rhode Island District Court. I was identified as a witness for the plaintiffs; however, the attorneys could not concur on my deposition terms and conditions in Thailand. So the defense attorneys filed a motion to compel. The judge granted the defense’s motion to compel and ordered the following.


a. On or before August 5, 2016, Plaintiff is ordered to submit to being deposed in this case pursuant to the requirements set forth below.
.
.
.
f. Plaintiff is specifically ordered to give his solemn oath or affirmation and to testify truthfully as if the oath or affirmation had been administered by the officer in his presence.


I had informed my attorney that compulsory depositions are prohibited in Thailand and that I was a willing and cooperative witness. I proposed service of notice by registered mail with return receipt; however, the motion to compel was granted and the deposition has been ordered.

Below is an excerpt from the US State Department website.

“Thailand is not a party to the Hague Evidence Convention. Voluntary depositions may be conducted in Thailand regardless of the nationality of the witness, provided no compulsion is used. Oral depositions or depositions on written questions may be taken by U.S. consular officers or by private attorneys from the United States or Thailand at the U.S. Embassy or at another location such as a hotel or office, either on notice or pursuant to a commission.”

Below is an except from USA passport website.

“Depositions of willing witnesses may be conducted in Thailand regardless of the nationality of the witness. The procedure does not vary in civil, administrative or criminal cases. Depositions may take place on U.S. consular premises or at other locations such as offices or hotels. The witnesses may refuse to take an oath or refrain from answering any or all questions. No compulsory measure, either direct or indirect is allowed.”

I suspect that the compulsion is an issue. If I was retired in Alaska for example, the order would look the same as for Thailand. It seems that the court has ignored Thai law and/or regulation along with reasonable diplomacy.

So my concern is that the deposition will be invalid and could be challenged at trial or on appeal. My attorney asked what can Thailand do to the USA? He also speculated that if I object to a compulsory deposition, then the judge will dismiss the case.

Can anyone shed some light on this situation?

 

[tranquility]

Thai law is pretty much irrelevant here. Your attorney advised you properly. Follow the judges order or I suspect the sanction will be a dismissal with prejudice. A deposition is only to establish some facts. It will hardly be considered "invalid" for the reasons you state.

 

[stevemowry]

Chris Neumeyer, Special Counsel at Duane Morris Selvam LLP published a discussion of Best Practices for Taking Depositions in Asia at LinkedIn.

The first two paragraphs are contained below.

"Global commerce often leads to litigation and the need to obtain evidence from foreign parties and witnesses. However, in most Asian (and other civil law) countries, discovery is conducted by judges, not attorneys, depositions and other formal discovery procedures do not exist, and attempts by foreign litigants to gather evidence contrary to local laws may be seen as violations of national sovereignty, for which criminal sanctions may be assessed.

Fortunately, lawful methods exist for U.S. litigants to depose parties and non-parties in most countries. Primarily, the Federal Rules of Civil Procedure (“FRCP&#8221 and corresponding state laws authorize the taking of foreign depositions pursuant to (a) treaty or convention, (b) letters of request or letters rogatory, (c) deposition notice, or (d) before a consular officer; and the Hague Convention on Taking of Evidence Abroad authorizes depositions before a consular officer or pursuant to letters rogatory."

Thailand has not signed any of the treaties indicated above. The Department of State website lists the treaties with a "no" or N/A designation.

The consensus of opinion here does seem fair and reasonable but when searching the literature on the topic, the consensus of opinion on the process of taking depositions in Thailand is not as simple as a court order subsequent to a 10 minute telephone conference hearing. Chris Neumeyer goes on to explain.

"In short, plenty of depositions take place in Asia, but there are myriad legal and practical complications, so it is critical that U.S. counsel plan well in advance, informing the presiding judge of the plans, consulting with foreign counsel, and carefully observing best practices concerning the following matters, to ensure that the process will succeed and testimony will be admissible in court."