UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMISSION

In the Matter of

Polyp ore International, Inc.,

a corporation.

)

)

)

)

)

Docket No. 9327

Public

Emergency Motion

COMPLAINT COUNSEL'S MOTION FOR CERTIFICATION TO

THE COMMISSION FOR COURT ENFORCEMENT

Complaint Counsel respectfully submits this Motion pursuant to Federal Trade

Commission Rules of Practice ("Rules") section 3.38(c), 16 C.F.R. § 3.38(c), for the Cour to

grant Complaint Counsel's Motion for Certification to the Commission for Court Enforcement

of a subpoena in order for Complaint Counsel to conduct a voluntar deposition of Nippon Sheet

Glass ("NSG") in Japan. Complaint Counsel must obtain an order from a United States federal

court authorizing the taking of a voluntary deposition ofNSG in Japan. The only way that

Complaint Counsel can procure this order is by ê-sking this Court to grant Complaint Counsel's

Motion for Certification to the Commission for Court Enforcement ofthe NSG subpoena.

Complaint Counsel canot directly make the motion for authorization to take a voluntar

deposition ofNSG in Japan to a United States federal court because the FTC Act only allows the

Commission to be before a United States federal court for an enforcement action. 15 U.S.C. §

9& 10 (2008). Complaint Counsel has discussed this motion with Respondent and Respondent

will make its position on the motion known as soon as possible.

Facts

On January 21,2009, Complaint Counsel served NSG, a Japanese company with

businesses in North America, with a 3.33(c) Subpoena asking it to designate one or more persons

1
to testify about, among other things, any present or future plans it has to supply battery

separators to customers located in North America. On January 22,2009, NSG's General

Counsel responded to the Federal Trade Commission's Subpoena stating that the person most

knowledgeable about the matter on which examination is requested was in Japan and NSG "was

unable to make NSG's corporate representative available for a deposition in the United States

due to the overwhelming demands ofthe business in Japan at this time." See Exhibit 1 - NSG's

Response to FTC's 3.33(c) Subpoena. NSG's General Counsel did say that its corporate

representative would be available in Japan on "February 27,2009 to voluntarily appear" to

answer questions. See Exhibit 1 - NSG's Response to FTC's 3.33(c) Subpoena (emphasis

added).

Statement of Authority

The purpose of this motion is to have this Cour certify to the Commission that federal

court enforcement of the Rule 3.33(c) subpoena properly issued to and served upon NSG is

appropriate. According to Rule 3.38(c), in "instances where a nonpary fails to comply with a

subpoena," the Administrative Law Judge "shall certify to the Commission a request that court

enforcement ofthe subpoena or order be sought." 16 C.F.R. § 3.38(c). NSG's representative

wil not appear in the United States, but will appear voluntarily in Japan.

The United States - Japan Bilateral Consular Convention permits the taking of a deposition

in Japan of a wiling witness for use in a United States court proceeding provided that a United

States federal court authorizes the takng of such voluntary deposition. Consular Convention

and Protocol, Mar. 22, 1963, U.S. - Japan, ar. 17.1 Under the United States - Japan Bilateral

IHowever, the United States - Japan Bilateral Consular Convention does not allow

Japanese citizens to be deposed in Japan pursuant to a subpoena issued in the United States.

2
Consular Convention and the All Writs Act, once the Commission authorizes enforcement ofthe

subpoena from a United States federal cour, the Commission's General Counsel will be able to

ask a federal court to authorize a consul or vice-consul of the United States to take a voluntary

deposition ofNSG's representative in Japan, which is already scheduled for February 27,2009.

Consular Convention and Protocol, Mar. 22, 1963, U.S. - Japan, art. 17; 28 U.S.c. 1651.

Aricle 17 of the U.S. - Japan Consular Convention provides that consular officers may...

(ii) take depositions, on behalf ofthe cours or other judicial tribunals or

authorities of the sending state, voluntarily given, or

(iii) administer oaths to any person in the receiving state in accordance

with the laws of the sending state and in a maner not inconsistent with

the laws of the receiving state ...

Consular Convention and Prot0901, Mar. 22, 1963, U.S. - Japan, ar. 17(1)(e).

"This general reference to the authority of consular offices to take depositions has been

interpreted by the governent of Japan very strctly." See U.S. Department of State - Bureau of

Consular Affairs, Japan Judicial Assistance, http://trave1.state.gov/law/info/iudicial 678.html

(last visited January 21,2009) (Exhibit 2). Agreed upon interpretations ofthe U.S. - Japan

Consular Convention and Japanese law and practice permit the taking of a deposition of a

willing witness for use in a court in the United States only

1) if the deposition is presided over by a U.S. consular officer;

2) is conducted on U.S. consular premises;

3) is taken pursuant to an American court order or commission;

4) and if any non-Japanese paricipant traveling to Japan applies for and

obtains a Japanese Special Deposition visa.

Consular Convention and Protocol, Mar. 22, 1963, U.S. - Japan, art. 17

Here, an NSG company representative will willngly travel to the United States Consulate in

Osaka, Japan and wil have the oath administered to him by a consular or vice-consular. In order

3
for Complaint Counsel to satisfy the third and fourh steps of the U.S. - Japan Consular

Convention, this Court must grant Complaint Counsel's Motion for Certification to the

Commission for Court Enforcement ofNSG's Rule 3.33(c) Subpoena.

Complaint Counsel did not request leave of this Court under 3.362 of the Rules to seek the

issuance ofa subpoena to be served in Japan. Under 3.36(b)(4), Complaint Counsel would not

have been able to meet its burden that "the discovery requested would be permitted by treaty,

law, custom, or practice in the country from which the discovery is sought. . . before the

subpoena is served." Because the United States - Japan Bilateral Consular Convention only

permits the taking of a deposition of a wiling witness for use in a United States cour

proceeding, a Commission subpoena issued for discovery to be conducted in Japan would be

insufficient to compel NSG's testimony in Japan.3 Consular Convention and Protocol, Mar. 22,

1963, U.S. - Japan, ar. 17.

A federal court order under the All Writs Act can grant administrative agencies the

authority to take voluntary depositions in Japan. 28 U.S.C. 1651. An order from a United States

federal cour specifically authorizing a United States consular offcer to take the voluntary

2 Rule 3.36 deals with procedures for issuing subpoenas to be served in a foreign country.

Specifically Rule 3.36(b) states the party serving the subpoena must show: 1) the material sought

is reasonable; 2) the material sought is reasonably expected to yield information relevant to the

allegations ofthe complaint, to the proposed relief, or to the defenses ofthe respondent; 3) the

information or material sought canot reasonably be obtained by other means; and 4) that the

pary seeking discovery has good faith belief that the discovery requested would be permitted by

treaty, law, custom, or practice in the country from which the discovery is sought and that any

additional procedural requirements have been or wil be met before the subpoena is served. 16

C.F.R. § 3.36(b).

3 One ofthe policies behind 3.36 ofthe Rules was to encourage non-compulsory

production of evidence from abroad. Thus, Complaint Counsel's request that this Court certify

the matter to the Commission so that a United States federal cour can authorize a voluntary

deposition in Japan is consistent with Rule 3.36(b).

4
deposition in the United States Consulate in Osaka, Japan is required for an American attorney

seeking to paricipate in depositions of Japanese nationals in Japan. Consular Convention and

Protocol, Mar. 22, 1963, U.S. - Japan, ar. 17. Moreover, a United States federal court order

authorizing the taking of a voluntary deposition in Japan is a necessar prerequisite for obtaining

the requisite Special Japanese Deposition Visa and Host Countr Clearance, which is specific to

officials of the United States Governent. Without this type of order being granted, Complaint

Counsel would be unable to proceed with the taking of the voluntar deposition in Japan.

As of today, the Deparment of State is on notice that Complaint Counsel intends to

commence voluntary depositions of Japanese nationals. Additionally, the United States

Consulate in Osaka, Japan has reserved a deposition room for Complaint Counsel on February

27,2009. However, all ofthe clearances that must be obtained canot occur until Complaint

Counsel can present an order from a United States federal court to the Japanese Embassy stating

that it has authority to take voluntar depositions in Japan ofNSG's representatives on Februar

27,2009 at the United States Consulate in Osaka, Japan. Therefore, time is ofthe essence.

Conclusion

Accordingly, Complaint Counsel requests that the Cour grants Complaint Counsel's

Motion for Certification to the Commission for Cour Enforcement ofNSG's Rule 3.33(c)

Subpoena on an expedited pace, so that Complaint Counsel may comply with the various

necessar visas and country clearances.

5
January 22,2009 Respectfully submitted,

~ W ~/ti

J obert Robertson

Chief Trial Counsel

Bureau of Competition

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, DC 20580

Telephone: (202) 326-2008

Facsimile: (202) 326-2884

6
CERTIFICATE OF SERVICE

I hereby certify that on Januar 23, 2009 I fied via hand and electronic mail delivery an

original and two copies of the foregoing Complaint Counsel's Motion for Certification to the

Commission for Court Enforcement with:

Donald S. Clark, Secretary

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW, Rm. H-135

Washington, DC 20580

I hereby certify that on Januar 23,2009, I served via electronic mail and mail delivery a

copy ofthe foregoing Complaint Counsel's Motion for Certification to the Commission for

Cour Enforcement with:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW, H-I06

Washington, DC 20580

oalj~ftc.gov

I hereby certify that on Januar 23,2009, I served via electronic mail delivery and first

class mail two copies of the foregoing Complaint Counsel's Motion for Certification to the

Commission for Cour Enforcement with:

Wiliam L. Rikard, Jr., Esq.

Eric D. Welsh, Esq.

Parker, Poe, Adams & Bernstein, LLP

401 South Tryon Street, Suite 3000

Charlotte, North Carolina 28202

willainrkard~parkerpoe.com

ericwelsh(£parkerpoe.com

By:

Linda Cunningham

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

Telephone: (202) 326-2638

1cunnngham~ftc.gov

7
UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMISSION

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation.

rPROPOSEDl ORDER ON COMPLAINT COUNSEL'S MOTION FOR

CERTIFICATE TO THE COMMISSION FOR COURT ENFORCEMENT

On January 23,2009, Complaint Counsel fied a motion to certify Complaint Counsel's

Motion for Certification to the Commission for Cour Enforcement. Complaint Counsel's

motion for Certification to the Commission for Cour Enforcement is granted.

It is hereby ORDERED pursuant to 16 C.F.R. § 3.38(c) that Complaint Counsel's request

for cour enforcement is certified to the Commission for cour enforcement ofthe subpoena as of

this day, January _, 2009.

Ordered:

D. Michael Chappell

Administrative Law Judge
UNITED STATES OF AMERICA

BEFORE THE FEDERA TRAE COMMISSION

Polyp ore International, Inc.

a corporation.

)

)

)

)

)

)

Docket No. 9327

In the Matter of

Complaint Counsel has conferred with Mr. Welsh, who represents Respondent, in an

effort in good faith to resolve by agreement the issues raised by the motion. Mr. Welsh agreed

to the voluntary deposition of a NSG representative on February 27,2009. During the "Meet

and Confer," which was held on January 21,2009, Mr. Welsh stated that he did not oppose the

motion in principle, but merely wished to review it. Respondent's counsel received the Motion

on the evening of Januar 21,2009, but Respondent is now looking into the procedural process

detailed in the motion for taking a deposition in Japan in a matter before the Federal Trade

Commission. Complaint Counsel has requested that Respondent fie any response by Friday,

Januar 23,2009. Respondent asserts that it wil make its position on the motion known to the

Court as soon as possible.

~tted' .._

- -----

Steven A. Dah, Esq.

Bureau of Competition

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, DC 20580

. Telephone: (202) 326-2192

Facsimile: (202) 326-2071
EXHIBIT 1

TO

COMPLAINT COUNSEL'S MOTION

FOR CERTIFICATION TO THE

COMMISSION FOR COURT ENFORCEMENT
PILKINGTON

January 22, 2009

Alan R. Graham

Counti)i Managei; Nol'fi America

General Counsel & Secre/ai)'

('-.

Mr. Stephen Antonio

Federal Trade Commission

600 Pennsylvania Aveue, N.W.

Washington, DC 20580

Email: santonio~ftc.gov

Re: Rule 3.33(c) Deposition of Nippon Sheet Glass ("NSG")

Dear Mr. Antonio:

This will confirm my receipt of the referenced FTC subpoena ofa 3.33(c) deposition of

the NSG corporate representative. The person most knowledgeable about the subject

matter to be discussed is located in Japan. As such, please be advised that we are unable

to make NSG's corporate representative available for a deposition in the United States

due to the overwhelming demands of the business in Japan at this tie. However, in

looking at calendars, it appears that we could make NSG's corporate representative

available to you in Japan on the afternoon of Februar 27 to voluntarily appear and

~~. . answer your questions relative to the matters contemplated in the referenced deposition

Please advise at your earliest convenience as to whether this arangement is acceptable.

As you can appreciate, calendars do fill quickly.

Sincerely,

Alan R. Grahai

1:~

Pilkington North America, Inc.

8\1 Madison Avenue PO Box 799 Toledo Ohio 43697-0799

Offce + I 419 247 4503 Fax + 1 4192474884

A member of NSG Group
EXHIBIT 2

TO

COMPLAINT COUNSEL'S MOTION

FOR CERTIFICATION TO THE

COMMISSION FOR COURT ENFORCEMENT
Japan Judicial Assistance Page 1 of9

Law, Regulations &

Public Policy

Information for

Americans Abroad

Consular Notification

and Access

Citizenship and

Nationality

Legal and Public

Policy Information

Family Issues

Law Enforcement

Issues

Disclaimer: I he Intormation in this circular relating to the legal requirements ot

specific foreign countries is provided for general information only and may not be

totally accurate in a particular case. Questions involving interpretation of specific

foreign laws should be addressed to foreign counseL. This circular seeks only to

provide information; it is not an opinion on any aspect of U.S., foreign, or international

law. The U.S. Department of State does not intend by the contents of this circular to

take a position on any aspect of any pending litigation.

~;~

Summary

Service of Process

Service of Criminal Subpoenas

Service on a member of the U.S. MJl!la-ryJiapan

Service on a Foreiqn State

Obtaini Evidence Overview Summary

Japanese Sovereiqntv

U.S. Diplomatic and Consular Premises and Extraterritoriality

Special Japanese Deposition Visas

U.S. Court Order for the Taking of the Depositions

Participation of Judqes From the United States

Islephone or Videoteleconferençe Testimony

Special Note Reqarding American Attornexs Residinq in JaRan

Voluntarv Depositions on Written Questions

How Consular Depositions Are Conducted

Schedulinq Depositions

Consular Fees for Depositions

Video Tape Equipment

Signing. Certifying and Mailing Deposition Transcripts

Travel to Japan For Judicial Assistance Activities

Compulsion of Testimony - Letters Rogatory

Compulsion of Documents and Other Phvsical Evidence

Participation of American Attorneys in Japanese Court Proceedings

Reqarding Execution of Letters Rogatory

Criminal Matters

Defense Requests in Criminal Matters

Conductinq Informal Interviews 

Authentication of Documents

Enforcement of Judgments

Lists of Attorneys in Japan

lLS~ Emb-i;i-s-s-y Address and Contact Information

Links

Selected References

i~;"

p.

Summary: Judicial assistance between the United States and Japan is governed by

Article 5(f) of the Vienna Convention on Consular Relations (VCCRI. 21 UST 77, TIAS

6820,596 U.N.T.S. 261, Article 17 of the !"H::L-=,J¡man Bilateral Consular CQnvention of

1963 (15 UST 768), the U.S. - Japan bilateral Mutual Legal Assistance in Criminal

Matters treaty (Treaty Doc. 108-12), the multiateral Haque Convention on the Service

Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, 20

UST 361; to which the United States and Japan are parties, customary international

law and the practice of nations, and applicable U.S. and local Japanese law and

regulations.

Service of Process: The United States and Japan are a parties to the l:a-~

Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil

and C..moiercial Mç¡-lers. Persons requesting service of process of U.S. documents in

Japan in civil and commercial matters should execute the USM-94 form or the new

interactive Service Convention form available from the Hague Conference on Private

International Law web page. The request form should be completed in duplicate and

submitted with two sets of the documents to be served directly by the requesting

attorney or clerk of court to the Japanese Central Authontv. The Japanese Central

Authonty is Ministry of Foreign Affairs, 2-2-1 Kasumigaseki Chiyoda-ku, Tokyo 100-

8919 Japan. The person executing the request form should be either an attorney or

clerk of court. The applicant should include attorney at law or clerk of court title on the

identity and address of applicant and signature/stamp fields. See the U.S. response to

the 2003 Questionnaire in preparation for the Special Commission on the Practical

Operation of the Convention. Question 17.3 addressed the issue of who is authorized

under U.S. law to execute a request under the Convention. Attorneys should cite Rule

4 of the Federal Rules of Civil Procedure or comparable state statute permitting

attorneys to execute service requests. Proof of service is transmitted to the requester

by the Japanese central authority through the Japanese embassy and consulates in

http://travel.state. gov Ilaw linfo/judicial/judicial_ 678 .html 1/22/2009
Japan Judicial Assistance Page 2 of9

Handbook on the Operation of the HaGue Service Convention.

Service of Criminal Subpoenas: U.S. consular officers are permitted to serve

criminal subpoenas on U.S. citizens and U.S. Lawful Permanent Residents abroad

pursuant to 22 CFR 92.86, when specifically authorized by the Department of State.

Service on a member of the U.S. Military in Japan; It is possible to effect service on

members of the U.S. Armed Forces in Japan through the Japanese central authority.

Service by mail may also be used if state law permits (APO and FPO are U.S. mail).

Also, contact the Judge Advocate General's (JAG) Office at the Pentagon for the

particular branch of the service (tel: 703-545-6700).

Service on a Foreign State: See our Service Under the ForeiGn Sovereign

Immunities Act (FSIA) feature and FSIA Checklist for questions about service on a

foreign state, agency or instrumentality.

Obtaining Evidence Overview Summary: Japan is not a part to the Hague

Convention on the TakinG of Evidence Abroad in Civil and C9mmercial Matters.

Judicial assistance between the United States and Japan in obtaining evidence is

governed by Article 17 of the U.S. - JaQiJ;ijlilGIflLG-nnsular Convenllm of 1963 (15

UST 768), customary international law and the practice of nations, and applicable U.S.

and local Japanese law and regulations. Article 17(1) (e) of the U.S. - Japan Consular

Convention provides that consular officers may...

"(ii) take depositions, on behalf of the courts or other judicial tribunals or authorities of

the sending state, voluntarily given.

(iii) administer oaths to any person in the receiving state in accordance with the laws of

the sending state and in a manner not inconsistent with the laws of the receiving state."

This general reference to the authority of consular offcers 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 .\.S. - Japan bilateral G.onsular

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

1. if the deposition is presided over by a U.S. consular offcer;

2. is conducted on U.S. consular premises

3. is taken pursuant to an American court order or commission;

4. and if any non-Japanese participant travellng to Japan applies for and

obtains a Japanese Special Deposition visa.

The Japanese Ministry of Foreign Affairs and Ministry of Justice have advised the

United States that these requirements apply in civil, criminal and administrative cases.

The Japanese requirement for a court order and special deposition visas would apply

in all cases, even though the depositions began in the United States initially.

Therefore, depositions may be taken in Japan:

1. On U.S. consular premises;

2. 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, Naha, Osaka-Kobe, Sapporo, Fukuoka) or

3. on notice, provided an order issued by a court in the United States

specifically authorizes an U.S. consular offcer to take the deposition on

notice.

NOTE: U.S. Government officials traveling to Japan to participate in the taking of

depositions or informal interviews should see also Travel to Japan For Judicial

Assistance Activities for guidance about obtaining the additional requisite host country

clearance which requires a diplomatic note from the U.S. Embassy to the Ministry of

Foreign Affairs. This is in addition to the Special Deposition Visa requirement. This

additional requirement host country clearance does not pertain to private U.S. citizen

attorneys, but as noted below the Special Deposition Visa requirement applies to all

U.S. participants.

Japanese Sovereignty: The Government of Japan has advised the United States

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. The United States recognizes the right of judicial sovereignty of foreign

governments based on customary international law and practice; See, e.g., the

Restatement (Third) of Foreign Relations Law (1987); Cumulative Digest of United

States Practice in International Law, 1981-1988, Office of the Legal Adviser, U.S.

Department of State, Vol. ii, 1430-1432, 1440 (1994).

U.S. Diplomatic and Consular Premises and Extraterritoriality: All depositions

http://travel.state.gov /law /info/judicial/judicial_ 678 .html 1/22/2009
Japan Judicial Assistance Page 3 of9

(Japan); the premises are not part of the territory of the sending state (the United

States of America). See Restatement (Third) of Foreign Relations Law, Vol. 1, Sec.

466, Comment a and c (1987). See also, Persinger v. Iran, 729 F.2d 835, (D.C. Cir.

1984). It should be noted that Japan has further advised that depositions may

not take place on U.S. miltary bases in Japan as that is not sanctioned in the

U.S. - Japan Status of Forces Agreement.

Special Japanese Deposition Visas: Japan has instituted a requirement that

persons from the United States wishing to participate in a deposition of a witness in

Japan must apply for a Japanese "special deposition visa". As prerequisite to the

issuance of the Japanese special deposition visa, Japan requires presentation of a

U.S. court order, citing Article 17 of the jJ.S. - JaQiliLbilat,"J.iLÇons-LlI;;u:J:;gnvenJkm.

See suggested text for the court order below.

1. Apply for a "special deposition visa" at the Japanese Embassy or

Consulate in the United States nearest you. The Consular Section of the

Jaoanese Embassy is located at 2520 Massachusetts Avenue, N.W.,

Washington, D.C. 20008, tel; (202) 939-6700. Japanese consulates are

also located in Anchorage, Atlanta, Boston, Chicago, Detroit, Guam,

Honolulu, Houston, Kansas City, Los Angeles, Miami, New Orleans, New

York, Portland, San Francisco and Seattle.

2. This special visa must be applied for at least two weeks before

departure for Japan.

3. 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

Embassylconsulate visa application forms and to provide the requisite

photographs. A photocopy of the commission or court order for a U.S.

consular offcer to take the deposition must accompany the request.

Special visas may also be required of deposition participants other than

attorneys (stenographers, interpreters, parties, etc.). Inquiries should be

made of the appropriate Japanese consular offcer in the United States.

For guidance about applying for a U.S. passport, see the Passports

feature on the U.S. Department of State Bureau of Consular Affairs

internet page.

4. The Japanese Embassy must seek concurrence from the Ministry of

Foreign Affairs in every case. The Japanese Embassy or Consulate in

the United States will contact the Japanese Foreign Ministry for

permission to issue the "special deposition visa".

5. The Japanese Foreign Ministry wil contact the U.S. Embassy or

Consulate to confirm whether the U.S. consular offcer has received a

photocopy of the court order issued by a court in the United States and

whether the deposition has been scheduled. See below for guidance on

how to schedule a deposition at the U.S. Embassy or one of the U.S.

Consulates in Japan.

6. The Japanese Foreign Ministry will authorize the Japanese Embassy or

Consulate in the United States to issue the "special deposition visa".

U.S. Court Order for the Taking of the Depositions: A certified copy of the court

order must be provided to the U.S. Embassy in Tokyo before application is made for

the special deposition visa so that the U.S. Embassy is in a position to respond to the

requisite inquiry made by the Ministry of Foreign Affairs to the U.S. Embassy before

the Ministry authorizes the Japanese Embassy or consulate in the United States to

issue the special deposition visa. Japan wil not accept orders issued by

administrative law judges. Examples of court orders obtained from U.S. courts under

the All Writs Act, 28 U.S.C. 1651, by various administrative agencies for the taking of

depositions in Japan are available from upon request (ASKPR)(Qstate.qov). We

suggest that the court order be worded "on or about" a date for maximum flexibility in

scheduling.

Sample Suggested Text for Court Order or Commission

Japanese authorities have requested that the court order or commission contain the

following information:

NAME OF COURT

CAPTION )

)

)

TO ANY CONSUL OR VICE CONSUL OF THE UNITED STATES

UNITED STATES (EMBASSY/CONSULATE) (NAME OF CiTY)

Upon the application of (plaintiff, defendants), and pursuant to Article 17 of the United

States - Japan consular convention,

You have been duly appointed and you are hereby authorized to take oral depositions

http://trave1.state. gov /law /info/judicial/j udicial _678 .html 1/22/2009
Japan Judicial Assistance Page 4 of9

It is ordered that the depositions on notice of the following witnesses be taken at the

United States (embassy/consulate) in (name of city), Japan

(names, addresses, and employer of witnesses) commencing on or about (date),

(time) and terminating on or about (date), (time), and to mark any documentary

exhibits in connection therewith.

Counsel for defendants who wil participate in said depositions are (names); and

counsel for plaintiffs who wil participate in said depositions are (names). The

proceedings wil be reported by (name of court reporter, if one is travelling to Japan).

Please cause the testimony of said witnesses to be reduced to writing and the

depositions signed by said witnesses and annex said deposition testimony to your

commission and close the same under your seal and make return thereof to this court

with all convenient speed.

Date signature of judge

Name of judge

Seal

Participation of Judges From the United States: Japan has advised the United

States that it will not permit the participation of foreign judges in the deposition of a

witness located in Japan. For a general discussion of participation of judges in foreign

depositions, see, Cumulative Digest of United States Practice in International Law,

1981-1988, Vol. II, 1400, 1402, Department of State (1994). See also, Administrative

Office of the U.S. Courts, Guide to Judiciary Policies and Procedures, Vol. II, Judges'

Manual, February 1988, trans. 2, vol. III, chap. XV, p. 3, Sec. B.1.c.

Telephone or Videoteleconference testimony; Japanese authorities have informed

the United States that Japan does not permit the taking of telephone or

videoteleconference testimony. In light of the U.S. treaty obligation pursuant to

Article 17 of the U.S. - Japan Consular Convention, as interpreted by the U.S. and

Japan, absent specific authorization from the Japanese Ministry of Foreign

Affairs, the U.S. Embassy in Tokyo and U.S. consulates in Japan cannot participate in

any way in a telephone or teleconference deposition. See, Restatement (Third) of

Foreign Relations Law, 441-442. See also, interpretive notes, Rule 28(b), Federal

Rules of Civil Procedure which provides "effectiveness and even availability, of one of

the methods Rule 28(b) provides for taking of depositions in foreign countries depends

largely upon law of foreign country in which deposition is to be taken." Zassenhaus v.

Evening Star Newspaper Co., 404 F2d 1361, (D.C. Cir. (1968), 131 App DC 384. The

U.S. Department of State would again advise U.S. citizens contemplating participation

in such a proceeding outside of U.S. consular premises to consider carefully the

impact of such an action. In 1998, the Government of Japan permitted the taking of

live videoteleconference testimony of a witness in Japan at the U.S. Embassy to a

Federal courtroom in the United States. See United States v. NiDDon PaDer Industries.

Co.. Ltd., Order (D. Mass., July 28,1998); Order July 28,1998. Permission must be

obtained on a case by case basis by the U.S. Embassy in the form of a diplomatic note

to the Ministry of Foreign Affairs which would consult with the Ministry of Justice. It

should be noted that when the Government of Japan granted permission for the

videteleconference testimony in 1998, Japan specifically stated that this should not

be considered a precedent.

Special Note Regarding American Attorneys Residing in Japan and Voluntary

Depositions: Japanese authorities have informed the United States that Articles 3

and 72 of the Japanese Lawyer Law may prohibit the taking of depositions in Japan

outside the procedures established for taking consular depositions under Article 17 of

the U.S. Japan bilateral Consular Convention by private attorneys not admitted to

practice law in Japan. In Note Verbale Hokubei 1 No. 220 dated October 31,1996, the

Japanese Ministry of Foreign Affairs advised that private 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 "gaikokuhu jimubengoshi"), permanent residents, or their spouses 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 verba Ie notification to the Ministry, the Embassy will need to

provide the names of such lawyers, their company affilation 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 offcer 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.

Voluntary Depositions on Written Questions: Voluntary depositions on written

questions may be taken in Japan (28 USC Fed. R. Civ. P., Rule 31,22 C.F.R. 92.58).

Requesting counsel should contact the U.S. Embassy or Consulate to arrange a

mutually convenient day or days when the deposition may be conducted. The

requirements for an American court order, consular fees and scheduling the Embassy

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interpreter/translator, and withdraw, subject to recalL. 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 offcer at the U.S.

Embassy or Consulate. 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 U.S. consular officer will affix a closing certificate after the deposition is

completed.

How Consular Depositions Are Conducted: When a deposition of a wiling witness

is taken before a U.S. consular offcer in Japan on U.S. consular premises, the

procedures set forth at 22 CFR 92:55-92.64 and 7 Foreign Affairs Manual (FAMl920 .

Generally, consular offcers preside over the taking of the deposition, following special

instructions of the requesting court or parties (22 CFR 92.56), consistent with

Japanese requirements. Actual asking of the questions is usually done by requesting

counsel after the consular officer administers oaths to the witnesses, stenographers,

interpreters, video-tape operators, etc. The consular officer then withdraws, subject to

recalL.

Scheduling Depositions: Contact the U.S. Embassy or Consulate and make

arrangements to schedule the availability of U.S. consular premises and a U.S.

consular officer to conduct the deposition. Note: The American Embassy in Tokyo is

generally booked six months in advance. See Taking Depositions in Tokyo - U.S.

Embassy which includes an on-line tool for scheduling depositions; Taking Depositions

in Osaka - U.S. Consulate General. Depositions are rarely taken at the U.S.

Consulates in Fukuoka, Naha or Sapporo. Special arrangement must be made with

the consular sections for depositions in these locations as there is no dedicated space

in the consulates for depositions. Review the information on the U.S. Embassy Tokyo

and U.S. Consulate General Osaka-Kobe web sites carefully as that information is

subject to change. In general:

1. Please note that for administrative and security reasons, the

embassy/consulate"s deposition room and consular staff are not available

for deposition taking outside of working hours 8:30 a.m. to 5:00 p.m. or on

weekends or holidays.

2. The Embassy/consulate can tentatively schedule a deposition, and hold

the dates reserved for three weeks. If the non-refundable scheduling fee

($475.00) is not received at the Embassylconsulate within three weeks,

the dates tentatively reserved wil be released to others.

3. In addition, the Embassylconsulate cannot confirm a scheduled deposition

until both the court orderlcommission and deposit for the prescribed

deposition fee are received at the Embassy/consulate.

4. The embassylconsulate does not schedule the appearance of deponents

or make arrangements for court reporters/stenographers or interpreters

for private attorneys.

Consular Fees for Depositions: Current consular judicial assistance services fees

are set forth in 22 CFR 22.1 . The current fees include:

22 CFR 22.1 Schedule of Fees item 52 a - Scheduling/arranging appointments for

depositions (per daily appointment) - $475.00. This is a non-refundable fee.

22 CFR 22.1 Schedule of Fees item 52 b - Attending or executing commissions to

take testimony (per hour thereof) - $265.00. If the consular officer administers the

oaths and withdraws, subject to recall, at least one hour is charged pursuant to item

52b.

22 CFR 22.1 Schedule of Fees item 52 c - Swearing in witnesses for telephone

depositions. $265.00.

22 CFR 22.1 Schedule of Fees item 52 d - Supervising telephone depositions (per

hour or part thereof over the first hour - $265.00.

22 CFR 22.1 Schedule of Fees item 52 e - Providing seal and certification of

depositions - $70.00.

In addition, actual costs for mailing transcripts must be furnished.

No fees are normally charged for depositions at the request of U.S., state or local

government officials (22 CFR 22.1 Schedule of Fees item 53(a)) or at the request of

parties in criminal cases that have been found to be indigent by the court (22 CFR 22.1

Schedule of Fees item 53(b)).

Video Tape Equipment: The embassy/consulate does not provide tapes, taping

equipment or equipment operators. The embassy/consulate also does not provide

commercial rates for tapes, taping equipment or equipment operators. Participants

must make all arrangements directly with the service providers. Participants are

responsible for obtaining their own clearances from Japanese Customs authorities for

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electrical equipment at the U.S. Embassy/Consulate. After the advance arrangements

are completed, please so notify the U.S. Embassy a few days in advance of 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.

Signing, Certifying and Mailing Deposition Transcripts: 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 for the participants who wil 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 American

embassy or consulate for signature before a consular offcer, making any necessary

corrections in the presence of a consular offcer. 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/consulate 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/consulate 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. Completed transcripts and related documents are sent via

registered mail to the court in which the action is pending, or to requesting counsel

unless the action is a federal criminal case, in which case, the documents are returned

to the Department of State for onward transmission.

Compulsion of Testimony: Japan is not a party to the Hague Convention on the

Taking of Evidence Abroad in Civil or Commercial Matters. There is not in force

between the United States and Japan any other treaty or international agreement on

judicial assistance. Compulsion of evidence in Japan from an unwiling witness can

only be achieved on the basis of comity, pursuant to a letter rogatory. See Rule 28(b),

Fed. R. Civ. P.; 4 Moore"s Federal Practice 28.05-28.8 (2d ed. 1950); Ristau,

International Judicial Assistance (Civil and Commercial), Vol. I, 3-36 et seq.,

International Law Institute, 1984; Article 50) of the Vienna Convention on Consular

Relations (1963), 21 UST 77 to which the United States and Japan are both

parties. For criminal matters see guidance below. A letter rogatory is a request from a

court in one country for assistance from a court in another country. Such requests are

executed by Japanese district courts in accordance with the laws of Japan and

generally take six months to a year to execute. The Japanese court wil compel the

witness to appear before a Japanese judge to respond to written questions annexed to

the letter rogatory. All proceedings wil be conducted in the Japanese language. The

letter rogatory should be written in clear, simple language and should be written in the

form of a request, not a demand for assistance. Japan requires that requests for

international judicial assistance be processed through the diplomatic channeL. This

means that a request must be transmitted to the Department of State by the requesting

court, or by counseL. See our general brochure on preparation of letters rooatorv.

Moreover, the Department of State understands that the following Japanese conditions

must be met before such a request will be honored:

1. The request must be made through diplomatic channels (as mentioned);

2. The letter rogatory should have attached documents showing parties to be

examined, the type of evidence to be examined, the name, nationality and

address of the persons to be examined and the items with respect to

which they should testify (Japanese Law W relating to Reciprocal Judicial

Aid to be Given at the Request of Foreign Courts - Law 63 of March 13,

1905, as amended);

3. The letter rogatory and all attachments must be translated into

Japanese. Japanese courts often reject a letter rogatory if the documents

including all attachments are not completely translated into Japanese, or if

the quality of the translation is poor;

4. The letter rogatory must assure the Japanese court that compensation for

all expenses incurred by the Japanese court will be paid;

5. The letter rogatory must assure the Japanese court that the requesting

court will honor similar requests from the Japanese court.

6. Moreover, Japan requires that any document annexed to the letter

rogatory must bear the seal of the requesting court and the signature of

the judge. Japan will reject a request if the letter rogatory or

accompanying documents bear the signature of the clerk of the court.

Japanese authorities do not honor amendments to a letter rogatory which

are not under the seal of the requesting court.

Letters rogatory for compulsion of evidence should be\transmitted to the U.S.

Department of State, Bureau of Consular Affairs, Overseas Citizens Services, Office

of American Citizens Services and Crisis Management, East Asia Division,.

CA/OCS/ACS/EAP. Mailing address: SA-29, 4th Floor, 2201 C Street NW.,

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payable to the U.S. Embassy. No fees are charged for letters rogatory at the request

of U.S., state or local government officials or at the request of parties who have been

found to be indigent by a court.

Compulsion of Documents and Other Physical Evidence: Japan has advised the

United States that Japanese law does not include any provision for compulsion of

documents or other physical evidence except in criminal cases. The Department of

State continues to explore this issue with Japanese authorities. In the interim, while the

Department is prepared to transmit such requests, be aware that attempts to compel

such evidence by means of letters rogatory in civil cases have proven unsuccessfuL.

However, production of documents and other physical evidence may be compelled

through the Japanese courts by letters rogatory in criminal cases.

Participation of American Attorneys in Japanese Court Proceedings Regarding

Execution of Letters Rogatory: Most American attorneys would prefer to participate

in the proceeding before the Japanese court. This may well pose a problem in that it

appears generally prohibited by Articles 3 and 72 of the Japanese Lawyer Law. The

Japanese judge, however, may permit American counsel to participate on a case-bycase basis. For this reason, it may be preferable for you to prepare the letter rogatory

in a way which offers the Japanese court alternative ways of executing the request.

For example, the letter rogatory could request that:

1. American counsel be permitted to participate in the proceedings before

the Japanese court;

2. If this is not possible, the letter rogatory could ask that local Japanese

counsel representing the American client be permitted to participate in the

proceedings;

3. Finally, if this alternative is not possible, the letter rogatory could enclose

written questions to be put to the witness by the Japanese court.

Travel to Japan For Judicial Assistance Activities: Before traveling to Japan for

judicial assistance related activities, see the Country Specific Information and any

applicable Travel Ale_rt-s or Travel Warniri9-~. It is also recommended that U.S.

travelers register with the U.S. Embassy using our on-line re9latio-Ðsy-slem. If a

U.S. federal, state or local offcial wil participate in the deposition, contact the Offce of

Policy Review and Inter-Agency Liaison (ASKPRI(ástate.qov; (202-736-9125; fax 202-

736-9111) for assistance in obtaining host countQLG!earanÇ!lQLthe tra'Lel of ~

officials to conduct iudicial assistance activities abroad.

Criminal Matters: U.S. federal or state prosecutors should also contact the Office of

International Affairs. Criminal Division. Deoartment of Justice at (202) 514-0015 for

guidance about the U.S. - Japan bilateral Mutual Legal Assistance in Criminal Matters

treaty (Treaty Doc. 108-12). The treaty was signed August 5,2003. See U.S.

.QizQartment of Justicepress Release Auaust 5. 2QQ;; ",apanese Ministry of Foreign

Affairs sianina of Mutual Leaal Assistance Treaty with the United States; Transcript

U.S. Embassy Statements at Exchanae of Instruments of Ratification 2006.

Defense Requests in Criminal Matters; The U.S. Department of State expects

criminal defendants, or their defense counsel, who wish to request judicial assistance

in obtaining evidence or in effecting service of documents abroad in connection with

criminal matters to make such requests pursuant to letters rogatory in accordance with

Article 50l of the VCCR. Defense requests for compulsion of evidence in criminal

matters may be prepared in the form of a letter rogatory transmitted via diplomatic

channels from the U.S. Department of State, Bureau of Consular Affairs, Overseas

Citizens Services, Offce of American Citizens Services and Crisis Management, East

Asia Division, 1-888-407-4747. See 22 CFR 22.1 regarding current consular fees. For

general guidance about preparation and transmittal of such requests, see our Letters

Roaatory feature. Fees: The consular fee for letters rogatory is set forth in 22 CFR

22.1. The current fee provided in 22 CFR 22.1 Schedule of Fees item 51 is $735.00

which should be furnished in the form of a certified or corporate check payable to the

U.S. Embassy. No fees are charged for letters rogatory at the request of U.S., state or

local government officials.

Conducting Informal Interviews: While the taking of depositions, under the

conditions explained above, is a right secured under the U.S.-Japan Consular

Convention, 15 U.S.T. 768, conducting interviews and other informal evidence

gathering or investigation techniques are entirely subject to the discretion of the

Japanese government. The Japanese Ministry of Foreign Affairs has advised the U.S.

Embassy in Tokyo that it considers the conducting of information interviews by in

Japan to constitute formal evidence gathering and therefore to be subject to the

Japanese law on international investigative assistance. Private litigants may need to

obtain a special visa for travel to Japan to conduct informal interviews, inspections or

other investigations. Contact the Japanese Embassy or consulate in the U.S. for

information. Japanese authorities may require that the request to conduct such

interviews be made in the form of a letter rogatory, or in criminal cases, on behalf of

the U.S. Government, a formal letter of request. Local, state and federal

prosecutors/attomeys seeking to conduct such interviews/inspections should contact

the Offce of American Citizens Services for additional information.

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Ll..U...''u..o;Uv., '..Lt...'... ...... i,..,v u... ...... ....~LO'..'....'. V' v..;.....' \"'U''-''''~.!Vi,..~

wbpaqe. Additional guidance for consular offcers about authentication of documents

is available at I Foreign Affairs Manual 870..

Enforcement of Judgments: There is no treaty in force between the United States

and any country on the reciprocal enforcement of iudqments in general.

Lists of Attorneys in Japan: See the U.S. Embassy in Tokyo Lisl.Qf Aii~-sJn

Japan by Prefecture. See also Retaininq a Foreiqn Attorney.

ADDRESS OF THE AMERICAN EMBASSY IN JAPAN: See the Country Specific

Information Japan.

Links

U.S. Government Links

Takinq Depositions in Tokyo - U.S. Embassv

Takir:eJ2tiQ.ns in Osaka =.JLS~.c.QDsulale_GJmeniInternational Adoption - Japan

International Child Abduction - Japan

Librarv of Conqress Guide to Law Online - Japan

Japan Backqround Notes

World Fact Book - Japan

NGO Links

Columbia Law School Center for Japanese Studies

Japan Links

Japanese Ministry of Justice

The Japanese Judicial Svstem

Japanese Law Links

Selected References

Bendix, Helen, Interaction of Business and Government in Japan: Lessons for the

United States?, 151ntl Law. 571, (1981).

Britt, Robert, Japanese Legal System And International Trade: Up-To-Date Sources Of

Information In English, 82 Law Libr. J. 313, Spring 1990.

Forstner, James A., Patent Litigation in Japan, China and Korea, 366 PU/Pat 13, 15

(1993).

Hartmann, H. Michael, Discovery and Relation Motion Practice, 349 PU/Pat 245, 250

(1992) (Comparing U.S. discovery procedures with those of England, Germany and

Japan).

Hasebe, Yukiko, Shoko Shushutetsuzuki no Arikata (Existing Methods of Evidence

Gathering), 1028 Juristo 103, 103 (1993).

Hattori, Takaaki and Henderson, Dan Fenno., Civil Procedure in Japan (1988).

Helm, Kenneth D., Enforcing Foreign Civil Judgments in Japan, 1 Willamette Bull. Int'I

L. & Pol'Y 71 (1993).

Kenadjian, R. Wohl, S. Chemtob, & G. Fukushima, Practice By Foreign Lawyers in

Japan, Fordham International Law Journal, 1989-1990, Vol. 13, No.3, pp. 390-404.

Koroyasu, Transnational Litigation - Part II: Perspectives from the U.S. and Abroad:

Japan, 18 Int'I Law 785 (1984).

Mackey, Thomas S., Litigation Involving Damages to U.S. Plaintiffs Caused by Private

Corporate Japanese Defendants, 5 Transnat'l Law. 131 (1992).

MacMullin, Foreign Attorneys in Japan; Past Policies, The New Special Measures Law

and Future Expectations, Florida International Law Journal, Fall 1988, Vol. 4, No.1,

pp. 51-84.

Matsuo, Jurisdiction in Transnational Cases, 23 Int'I Law. 6 (1989).

Mochizuki, Toshiro M., Recent Development, Baby Step or Giant Leap?: Parties'

Expanded Access to Documentary Evidence Under the New Japanese Code of Civil

Procedure, 40 Harv. In!'1 L.J. 285 (1999).

Mori, Discovery and Taking Evidence (in Japan): The Difference Between U.S.

Discovery and Japanese Taking of Evidence, 23 Int'I Law. 3,3 (1989).

Ohara, Judicial Assistance to be Afforded by Japan for Proceedings in the United

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Japan Judicial Assistance Page 9 of9

79 (1985).

Ramseyer, Lawyers, Foreign Lawyers, and Lawyer-Substitutes: The Market for

Regulation in Japan, 2740 Harv. Int'l L.J. 499 (1986).

Rovine, Arthur, Section Recommendation And Report: American Bar Association

Section Of International Law And Practice Reports To The House Of Delegates:

Report on Japanese Law Practice, 21 Int'I Law. 278, (1987).

Sawaki, Recognition and Enforcement of Foreign Judgments, 23 Int'I Law. 29 (1989).

Sheehey, Japan's New Foreign Lawyer Law, Law and Policy in International Business,

Vol. 19, No.2, 1987, pp. 361-383.

Tada, Role of Corporate Legal Departments in Japan, 22 Int' Law. 1141 (1988).

Takaishi, Hirakawa and Tomatsu, International Civil Litigation Over Securities-Related

Disputes in Japan, Hastings International and Cornparative Law Review, Winter 1991,

Vol. 14, No.2, 423.

Taniguchi, Yasuhei, The 1996 Code of Civil Procedure of Japan - A Procedure for the

Coming Century?, 45 Am. J. Compo L. 767 (1997).

Tessensohn, John and Yamamoto, Shusaku, The BBS Supreme Court Case: A Cloth

Too Short For An Obi And Too Long For A Tasuki, 5 Compo Lit. Jnl. 23 (1999).

Wagnild, Craig P., Civil Law Discovery in Japan: A Comparison of Japanese and U.S.

Methods of Evidence Collection in Civil Litigation, 3 Asian-Pacific L. & Pol'y J. 1

(2002).

Watts, R.E., Briefing the American Negotiator in Japan, 16 Int' Law. 597, (1982).

Yamanouchi and Cohen, Understanding the Incidence of Litigation in Japan: A

Structural Analysis, 25 Int'I Law. 443 (1991).

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