Japan: Conducting Discovery In Japan: Depositions, Letter Rogatory, And Production Of Documents

In the course of litigation, you may find the need to conduct discovery in Japan. The unique problem with conducting depositions in Japan, or requesting production of documents in Japan, however, is that you cannot simply go to Japan and conduct discovery, because it could be considered a violation of Japan's judicial sovereignty. You also cannot rely on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Unlike the U.K., France, Germany, Italy, China, Australia, and many other countries, Japan is not a party to this Hague Convention. Therefore, you need to look to other ways of conducting discovery in Japan. Below we will examine the ways to take depositions, to obtain testimony through a letter rogatory, and to request production of documents in Japan.

Depositions

Depositions are permitted only in certain circumstances under the U.S.-Japan Consular Convention of 1963 (the "Treaty"). The Treaty is a bilateral treaty between the U.S. and Japan that governs judicial assistance between the two countries. Article 17(e)(ii) of the Treaty provides that a consular officer may "take depositions, on behalf of the courts or other judicial tribunals or authorities of the sending state, voluntarily given." Under the Treaty, depositions are permitted only if they are "voluntarily given."

If you look closely at the terms of Article 17(e)(ii), the Treaty only seems to provide authority for what a consular officer can do in connection with depositions. It does not seem to prohibit other ways of taking depositions. However, according to the U.S. Department of State's website (Japan Judicial Assistance, http://travel.state.gov/law/judicial/judicial_678.html), the Government of Japan strictly interprets the terms of the Article. The Government of Japan advises that "it opposes deviations from these conditions, and that it would consider any action beyond the strictures of the U.S.-Japan understanding to be a violation of its judicial sovereignty."

Under Japan's strict interpretation of the Treaty, depositions in Japan must be taken at either the U.S. Embassy in Tokyo or the U.S. Consulate in Osaka-Kobe (Depositions in Japan, http://japan.usembassy.gov/e/acs/tacs-7116.html ). Depositions rooms are available only at these two locations. There are no deposition rooms at the U.S. Consulates in Fukuoka, Naha, or Sapporo, and depositions are rarely taken at these U.S. Consulates. It is not permissible for the deposition to be held at the offices of the deponent's company, offices of a law firm, rooms of a hotel, or any other location in Japan. It is the requesting party's responsibility to reserve a deposition room. There is a flat fee that must be paid before a deposition can be scheduled, and there are additional fees going forward. Depositions typically must be scheduled approximately six months in advance. Much to the inconvenience of the parties, deposition rooms are often fully booked for several months.

After you reserve a deposition room, you must carefully plan in advance. It is the parties' responsibility to make necessary logistical arrangements. You must schedule the appearance of deponents. You must make arrangements for court reporters, stenographers, or interpreters. You must obtain a Special Deposition visa to enter Japan and participate in the deposition. This Special Deposition visa must be applied for at least two weeks before departure for Japan. You cannot take a deposition via telephone or videoconference, absent specific authorization from the Japanese Ministry of Foreign Affairs. Thus, all participants must be physically present at the deposition. While Japan once allowed a live video-teleconference deposition (see U.S. v. Nippon Paper Industries, Co., Ltd., Order (D. Mass., July 28, 1998), the Government made clear that this should not be considered a precedent. Videotaping of the deposition is permitted. The U.S. Embassy or the U.S. Consulate does not, though, provide you with tapes, taping equipment, or equipment operators. You must make all arrangements with the video-taking service providers. To bring equipment to the deposition room, you must make prior arrangements with the U.S. Embassy or the U.S. Consulate.

Once you are in the deposition room to take the deposition, the presiding consular officer will typically administer oaths to the deponent, interpreters, and stenographers. The consular officer will then usually withdraw. The requesting counsel will then start the actual questions. The deposition must occur during the hours of 8:30 a.m. to 1:00 p.m., and 2:00 p.m. to 4:00 p.m. All participants must vacate the deposition room between 1:00 p.m. and 2:00 p.m. The deposition room at the U.S. Embassy seats approximately eight persons.

Article 17(e)(ii) of the Treaty provides that a consular officer may take depositions "in accordance with the laws of the sending state." Thus, U.S. law applies to the depositions. U.S.-qualified attorneys can participate in the depositions, and the deponent may claim privileges under U.S. law.

Letter Rogatory

Under the Treaty, depositions can be taken only if they are "voluntarily given." There may be cases, though, where the deponent does not agree to "voluntarily give" a deposition. In such a case, the requesting party could consider requesting the U.S. court to issue a court order known as a "letter rogatory." A letter rogatory is a request from a court in one country for assistance from a court in another country. It can be used to compel a Japanese witness to appear before a Japanese judge and give testimony. Letters rogatory are not, however, a very popular method of obtaining testimony from a witness. The execution of letters rogatory by Japanese courts can be time-consuming, taking six months to a year to execute in some cases.

Once a letter rogatory is issued, it will be transmitted through diplomatic channels. The letter rogatory must attach a Japanese translation of the letter rogatory and all of its attachments. It will ultimately end up in the Japanese district court that has jurisdiction over the witness. Then the Japanese district court will compel the witness to appear before a Japanese judge to respond to written questions annexed to the letter rogatory. The judge will question the witness in accordance with procedures called a "witness examination (shounin jinmon)" under Japanese law. After questioning the witness, the Japanese judge will prepare an official document as a record of the "witness examination." This document will be in Japanese and will include the testimony given by the witness. The Japanese court will then send the document back to the U.S. court.

Japanese law applies to the procedures in connection with the execution of letters rogatory. Only Japan-qualified attorneys (bengoshi) can represent clients in the courts. U.S. attorneys are generally not permitted to sit in the attorney seats. They can only sit in the visitor seats. On a case-by-case basis, however, the Japanese judge may permit U.S. attorneys to participate in the procedures. For these procedures, U.S. attorneys do not need to obtain Special Deposition visas. The witness may claim "right to refuse testimony (shougen kyozetsu ken)" under Japanese law. The "right to refuse testimony" is witness' right to refuse testimony on matters specified under law, such as "matters concerning technical or professional secrets." Typically, "technical secrets" would include technology-related know-how, and "professional secrets" would include product cost and customer lists. If the witness claims privileges under U.S. law, the Japanese courts will likely make a record of such claim and defer to the U.S. courts.

Production of Documents

In the U.S., you can compel production of documents even from a third party if you have a subpoena. You cannot, however, do that for a third party in Japan. Doing so could be considered a violation of Japan's judicial sovereignty.

So again, you must look into the Treaty. Article 17(1)(f) of the Treaty provides that a consular officer may "obtain copies of or extracts from documents of public registry." Under the Treaty, the consular officer can only obtain documents of public registry. The consular officer cannot obtain other documents, such as those in the hands of a third party.

Now, you might try using the letter rogatory. In the past, various parties have tried using the letters rogatory to compel production of documents in Japan. Unfortunately, this usually does not work. This is due to provisions of the Civil Procedures Code of Japan. Under the Code, the Japanese judge who assists the execution of the letter rogatory has the authority to examine a witness, but does not have the authority to order production of documents. In accordance with the Code, the Japanese judge will likely not allow a request for production of documents even if so written in the letter rogatory. As a result, the only way to obtain documents in Japan from a third party in Japan would be to ask that third party to "voluntarily" produce the documents.

Conclusion

Conducting discovery in Japan is not easy and litigants should not expect to obtain nearly the same quantity or quality of information from Japan. However, if you know the available discovery devices and the special procedures to take advantage of those devices, discovery may not be lost. Only if you understand the distinct rules and limitations, will you be able to effectively and smoothly conduct discovery in Japan.

Original published in The Corporate Counselor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions