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Conducting Discovery in Japan
In the course of litigation, you may find the need to conduct discovery in Japan. The unique problem with conducting depositions or requesting production of documents in Japan, however, is that you cannot simply go there 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 UK, 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 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). This 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.”
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