Detailed Information on Deposition Taking in Tokyo

Article 17 of the United States - Japan Consular Convention authorizes U.S. consular officers to take depositions in Japan, "on behalf of the courts or other judicial tribunals or authorities of the sending state (United States), voluntarily given, in accordance with the laws of the sending state (U.S.) and in a manner not inconsistent with the laws of the receiving state (Japan)."

This general reference to the authority of consular officers to take depositions has been interpreted by the Government of Japan very strictly. Japanese law and practice, and the mutually agreed upon interpretation of the United States - Japan Consular Convention concerning obtaining evidence in Japan, permits the taking of a deposition of a willing witness for use in a court in the United States only:

(a) if the deposition is presided over by a U.S. consular officer (in order for the consular officer to preside over the deposition, it must be conducted in the English language);

(b) is conducted on U.S. consular premises;

(c) is taken pursuant to a U.S. court order or commission;

(d) and if any non-Japanese participant traveling to Japan applies for and obtains a Japanese special deposition visa.

Therefore, depositions may be taken in Japan:

(a) pursuant to a commission (28 U.S.C. App. Fed. R. Civ. P. Rule 28(b)(2)) to take a deposition issued by a court to any Consul or Vice Consul of the United States at Tokyo or

(b) on notice, provided a court order specifically authorizes a U.S. consular officer to take the deposition on notice.

The Ministry of Foreign Affairs has informed the U.S. Embassy that Japan does not permit telephone or videoconferenced depositions.

Arranging the Deposition

The following is our detailed information concerning depositions in Tokyo. Please note that we do not make any commitments until we receive the required reservation fee, court order/commission and the consular fees.

Reservation Fee

A flat fee of $475.00 must be paid to the Embassy before a deposition can be scheduled. The fee is not refundable if the deposition is later canceled. This covers consular officer and staff time in scheduling the deposition, communicating with requesting counsel by telephone or fax, and coordinating with Japanese authorities to confirm the scheduling of a deposition before Japanese authorities will issue the special deposition visa to persons traveling to Japan to participate in a deposition. If additional inquiries are made by counsel or their representative, canceling and rescheduling deposition time, an additional $475.00 non-refundable fee will be charged. Please note that the Embassy cannot confirm a reservation for a deposition until we receive the reservation fee.

This fee must be paid within 3 weeks from the date the tentative reservation was made and is non-refundable. Payment should be made by international money order or certified bank check payable to the U.S. Embassy, Tokyo, Japan. Personal or corporate checks are not acceptable.

The Embassy does not schedule the appearance of deponents or make arrangements for court reporters/stenographers or interpreters for private attorneys.

Court Order/Commission

The court order/commission should be addressed to "ANY CONSUL OR VICE CONSUL OF THE UNITED STATES ASSIGNED TO TOKYO, JAPAN" and worded "ON OR ABOUT" a date for maximum flexibility in scheduling. The names of all persons to be deposed must be included in the court orders/commissions noted above. The original or a certified copy of the court order/commission must be sent to the U.S. Embassy in advance. (These documents must bear the seal of the court).

Please see sample commission text here (PDF format).

Special Deposition Visa

Apply for a "special deposition visa" at the Japanese Embassy or Consulate in the United States nearest you. You will be required to present a photocopy of the commission or court order to the Japanese consular officer when you apply for the "special deposition visa." This special deposition visa must be applied for at least two weeks before departure for Japan. The request should be made on letterhead stationery and include the following information:

(a) the name and location of the court; (b) name and occupation of each witness; and (c) a summary of the case. Travelers will also be required to present their U.S. passport, complete Japanese Embassy/consulate visa application forms and to provide the requisite photographs. A photocopy of the commission or order for a U.S. consular officer to take the deposition must accompany the request.

Special deposition visas may also be required of deposition participants other than attorneys (American stenographers, interpreters, parties, etc.). Inquiries should be made of the appropriate Japanese consular officer in the United States.

Once it receives the application for the special deposition visa, (a) the Japanese Embassy or Consulate in the United States will contact the Japanese Foreign Ministry for permission to issue the "special deposition visa"; (b) the Japanese Foreign Ministry will contact the U.S. Embassy to confirm whether the U.S. consular officer has received the reservation fee, a certified copy of the U.S. court order/commission and the statutory consular fees (see paragraph 5 below); and (c) the Japanese Foreign Ministry will authorize the Japanese Embassy or Consulate in the United States to issue the "special deposition visa."

Note Regarding Foreign Attorneys Residing in Japan

In Note Verbale Hokubei 1 No. 220 dated October 31, 1996, the Japanese Ministry of Foreign Affairs provided additional clarification regarding the visa status of American attorneys residing in Japan who wish to participate in depositions at the U.S. Embassy or Consulate in Japan. American lawyers residing in Japan under the status of "legal/accounting services" (as "gaikokuho jimubengoshi"), "permanent residents," or "spouse or child of Japanese national" may participate in depositions under their current visa status, that is, without the special deposition visa, under certain circumstances. They must notify the Ministry of Foreign Affairs through the U.S. Embassy in Tokyo of their proposed participation.

When submitting the note verbale notification to the Ministry, the Embassy will need to provide the names of such lawyers, their company affiliation in Japan, their address, telephone number, and the type and validity of their visa, in addition to a copy of the requisite commission or court order issued by the court in the United States for the taking of the deposition before the U.S. consular officer on U.S. consular premises. In order to facilitate the notification procedures, the Embassy has prepared a worksheet which each lawyer resident in Japan will need to fill out in order for the Embassy to submit the requisite note verbale.

Statement of Concurrence

We must request that you provide in writing a statement of concurrence from the opposing party in this action. This statement should document the fact that opposing counsel is aware of the timing and venue of the deposition and understands they will be able to attend the deposition should they (opposing counsel) choose to do so and provided that they, too, obtain the special deposition visa. In this way, we can ensure that all parties to a dispute are apprised early on of the proposed timing of the deposition and thus maximize limited embassy resources.

Prescribed Statutory Fees

The prescribed statutory fee for consular services in connection with depositions, item 52(b), is $235.00 per hour. You should notify the Embassy of the necessary time required to take the deposition, allowing additional time required for interpreter/translator services' questions and answers. Be aware that the use of interpreters will approximately double the time required. The Embassy will estimate the amount of the deposit and inform you.

The Embassy must receive the deposit in full prior to the taking of the deposition. Additional $235.00 per hour fees may be charged if additional consular time is expended during the deposition beyond the time originally estimated. Any unused portion from your deposit will be refunded. Payment should be made by international money order or certified bank check payable to the U.S. Embassy, Tokyo, Japan.

Signing, Certifying and Mailing Depositions

Participants to a deposition may stipulate regarding the manner in which the transcript of the deposition (any exhibits) should be signed, certified and mailed. The transcript may be forwarded to counsel rather than to the clerk of court which requested the deposition. Moreover, participants may stipulate that after the deposing of witnesses is completed and the stenographer transcribes the testimony, the transcript may be sent directly to the witness for signature or to counsel who will make arrangements directly with the witness for signature of the transcript.

If required by local or federal rules in the United States, the witness may bring the transcript to the U.S. Embassy for signature before a consular officer, making any necessary corrections in the presence of a consular officer. If required, a consular certification of the deposition may be made at this time.

If you plan to have the deposition taped without subsequent transcription, the Embassy asks that the court order or commission specify whether audio or video tape is to be used. Tapes may be sent directly by the video operator or by the Embassy via registered air mail to either the person stipulated by the participants or directly to the court clerk immediately following completion of the deposition. Any change in the above procedures would have to be agreed to by both parties in the dispute and, if necessary, covered by an amended court order.

Deposition Closing Certificate Fee and Postage

The U.S. Embassy requires a $60.00 fee for the consular certification of the completed deposition transcript in accordance with Schedule of Fees item 52(e). Actual costs for postage and packing materials must be received in advance before transcripts can be forwarded. The Embassy may require a deposit for these postage and packing costs from which any unexpended monies will be refunded.

Firms may provide the Embassy with their express delivery service account number against which such costs may be charged. If extraordinary additional consular time is expended in the packing and shipment of transcripts, an additional $235.00 per hour fee may be assessed. As federal regulations prohibit the performance of consular services in advance of payment of statutory consular fees, depositions cannot be convened until all the required funds have been deposited.

Working Hours

For administrative and security reasons, the Embassy's deposition room and consular staff are not available for deposition taking outside the working hours of 8:30 a.m. to 5:00 p.m. or on weekends or holidays. The Embassy will be closed on both U.S. and Japanese national holidays. No one is allowed to remain in the deposition room during the lunch hour of 13:00 - 14:00. Please note also that deposition taking must stop at 4:30 p.m. each day to enable all participants to leave the consular premises prior to 5:00 p.m. at which time the doors will be locked. The Embassy deposition room will hold up to 10 people.

Electronic Equipment

The Embassy does not provide tapes, taping equipment or equipment operators. If a video taped deposition is planned, or if you plan to bring some type of electronic equipment, such as a tape recorder, please so notify the Embassy 3 days prior to the actual deposition, so that the Embassy can obtain the necessary clearance from the security office for the entry of the equipment and the operators into the Embassy premises.

Voluntary Depositions on Written Questions

The U.S. Embassy in Tokyo generally does not take written depositions due to limited staffing. However, voluntary depositions on written questions may be taken in Japan (28 USC Fed. R. Civ. P., Rule 31, 22 C.F.R. 92.58) after coordination with the Embassy. Requesting counsel should contact the U.S. Embassy to arrange a mutually convenient day when the deposition may be conducted. The requirements for a U.S. court order or commission, consular fees and scheduling the Embassy special deposition room based on space availability still apply. Counsel must make all the arrangements for the witness to appear and for stenographic or video services and translators if necessary.

The Consular Officer will administer the oath to the witness, and if necessary to the stenographer, video tape operator or interpreter/translator, and be continuously present throughout the deposition to read the questions provided in a court order. If the witness does not speak or read English adequately, a Japanese translation of the English text should be provided. The questions should be sent directly to the U.S. consular officer at the U.S. Embassy. If preferred, the witness may write down the answers to the questions, rather than dictate the answers to the stenographer or video tape operator. The consular officer will affix a closing certificate after the deposition is completed.

Please inform all attorneys, for both the plaintiff and the defendants, of the above requirements, particularly the special deposition visa.

Should you have further questions about the procedures for holding depositions overseas, please contact the office of Overseas Citizens Services, U.S. Department of State, (202) 647-3675, or this office directly at 81-3-3224-5174 (FAX No. 81-3-3224-5856).

For more information, including our phone and FAX number, please contact the office serving your part of Japan.

The U.S. Embassy and our Consulates are closed on both U.S. and Japanese holidays.

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