Tag Archive for: International Deposition

On May 8, 2019, the Higher Regional Court of Frankfurt (“HRCF”) in Germany held that although a translation of the statement of claim is not required under the law, a plaintiff is responsible for doing so if he or she opts for a translation under Regulation (EC) No. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the “Regulation”). If the process of service of the statement of claim (“statement”) is delayed for lack of translation, the plaintiff bears the legal risk under applicable German law that the time limitations on filing a suit are not tolled because the statement was served months after the filing.

 

The Case

 

The lawsuit was filed by a plaintiff-insolvency administrator against a defendant that was domiciled in France. According to applicable law, the deadline to file a claim expired on December 31, 2015. Plaintiff initiated the claim on December 15, 2015 at Darmstadt Regional Court (“DRC”) without a translation of the statement of the claim. Instead, the plaintiff asked the DRC to obtain a translation and paid the fee in advance to the court. DRC had difficulty finding a translator and, as a result, only received the translated statement of claim in October of 2016. The translated statement of claim was served on the defendant in December of 2016. Not surprisingly, the defendant alleged the statute of limitations had passed.

 

Court Decisions

 

The DRC ruled in plaintiff’s favor, allowing the case to proceed, and cited Section 167 of the German Code of Civil Procedure (“ZPO”). UnderSection 167, the deadline to serve a statement of claim is suspended with its filing if it is served “in the near future” and the party seeking service did not cause the delay. The DRC found that the delay in the service of the statement of claim was not due to the plaintiff but, rather, the court’s slow handling of the translation. Defendant appealed.

 

The HRCF reversed the DRC’s decision and dismissed the lawsuit, determining it was statute-barred. The HRCF held that the plaintiff did not do all that was reasonably required to ensure service was effectuated “in the near future” under Section 167 of the ZPO. The court did not address the question of whether service of a statement of claim a year after its filing could be construed as “in the near future.” The HRCF held that under Article 5(1) of the Regulation, the plaintiff is not required to provide a translation of the statement of claim for the defendant. That being said, Article 8(1) of the Regulation allows a defendant to refuse service if he or she does not understand the content of the document or it is written in another language than that of the receiving member state. If a defendant refuses to accept, then the document must be served with a translation. Notably, the relevant service date for tolling a statute of limitation under Article 8(3) of the Regulation is the initial service attempt.

 

For more information on the case, visit Baker McKenzie’s Global Litigation News.

For international service of process; visit Ancillary Legal.

Since our announcement, late last year regarding our new international deposition services, many of you may be curious about just how we accomplish depositions abroad. Here we will describe a few of the tools we use. The main obstacle when undertaking a deposition abroad is the distance.

Bridging the Distance

While you could fly halfway across the world to take down a deposition, this on top of the transcript fees could wind up being quite costly for your client. Enter Video Conferencing! Taking a nod from our sister company, who has embraced video conferencing for US depositions for a number of years now, Ancillary utilizes video conferencing to shorten the distance between deponent and attorney in an affordable way. Ancillary’s extensive knowledge of foreign and domestic laws allow us to properly advise you as to whether your deposition can take advantage of this modern technology.

Handling Exhibits

Now, you may be thinking “I can’t do a video conference deposition. I have exhibits that I need to use!” Not a problem. You can share those exhibits right inside of your video conference in real time with the help of screen sharing. We have even prepared a means for you to digitally mark those exhibits either in real time, or prior to your deposition using Adobe Stamps! You can download our free template from  ALC’s google drive. Just extract the pdf in the zipped folder and put it in your relative folder to:

Once the file has been placed there, the stamps will appear in in your Adobe software under the stamps menu in a list named “Ancillary Legal Corporation.” These stamps will work in both Adobe Acrobat Reader DC and Pro DC. If you do not yet have Adobe software you can download the software from their official download page.

Taking it to the Next Level

If you are an Adobe Acrobat Pro user, you can take advantage of the included feature called “Prepare Form” to customize our exhibit stamp template. Ancillary was easily able to use this feature to prepare a multitude of custom stamps for our Atlanta-based sister company, Elizabeth Gallo Court Reporting’s  many court reporters to utilize during the COVID-19 outbreak.  This feature is easy to use, and can offer you individualized functionality for your stamps.  In this YouTube video, a litigation technology firm explains how you can even use Adobe’s “Prepare Form” to program digital exhibit stamps to automatically fill with the file name for your pdf! These are just a few of the tools Ancillary has at their disposal to assist you with you with your international deposition. Click here for your free consultation. Ancillary’s staff attorney will review your case and let you know your option for depositions abroad.