Depositions in China
You are a litigator preparing a case in the United States. Your case is in the discovery phase and you want to depose a key witness located in Mainland. This witness is either unable or unwilling to come to the United States, and so their deposition must be taken in China. How do you go about taking this deposition?
Depositions are Generally not Allowed in China
Though deposing a Chinese witness in China for a US court case is theoretically possible, it is nearly impossible in real life.
This is because depositions require the deponent/witness swear under an oath to provide truthful testimony, and China generally regards administering oaths by foreign attorneys and consular officials as violating China’s judicial sovereignty, and it imposes penalties, including arrest, or deportation on all participants in the oath. Even conducting a deposition in a hotel room with an oath by private persons could result in criminal penalties under Chinese law.
If you are involved in litigation and wish depose a Chinese citizen you should seek permission from the Chinese authorities. This is a time consuming and complicated task, which typically requires you first get a request for this from the court in which your lawsuit is pending.
On the flip side, if you want to block the deposition of a Chinese citizen you should raise a timely objection to the deposition as illegal under Chinese law.
Alternative China Deposition Strategies
The international dispute resolution lawyers at my law firm have been involved in a number of cases where it has made sense to depose Chinese witnesses in China, and in none of them did it ever occur. Instead, the following happened:
1. The opposing party wanted to depose five witnesses in Hong Kong. We moved to require the opposing party to first try to secure Chinese government approval for these depositions to go forward in China. We pointed out that my law firm had lawyers in China who could handle the depositions there, and that having to fly one of our lawyers to Hong Kong to cover a deposition would greatly increase costs. The court denied our motion and the depositions went forward in Hong Kong. Though Hong Kong is now much more a part of Mainland China today than when we had this case, Hong Kong still treats depositions differently than dMainland China.
2. We were representing the defendant and two China witnesses who were critical to the plaintiff’s case. The case ended up settling before trial for nuisance value when it became clear plaintiff”s two witnesses would never leave China to be deposed nor come to the United States to testify at trail, and the plaintiff’s attorney could not figure out what it needed to do to take these depositions.
3. In one case, we brought a key witness to the United States for deposition.
One possible option would be to convince a Chinese witness to be deposed within a US embassy or consulate within China. My law firm has taken depositions overseas in US embassies, consulates, and on US military bases, but it has never done this in China. The problem with China is that the cost/risk of seeking to depose someone in China (even at a consulate or embassy) is so high that it is usually just easier to fly the witness to some other country for the deposition.
May 16, 2024 UPDATE: Thanks in large part to COVID, U.S. courts are now more likely to allow video depositions than when this post was written nearly 15 years ago. This has made deposing willing witnesses in China far safer and easier, though it is not clear how safe it is for a witness in China to take an oath and it may still be possible to block a deposition based on that.
My law firm recently had a huge case with nearly 100 Chinese plaintiffs, and a number of those plaintiffs agreed to be deposed via video from China and they were deposed that way, without incident. These depositions went forward without any oath beyond promising to tell the truth.
