Rule 28(b) of the Rules of Civil Procedure for the District Courts of the United States provides that depositions may be taken in foreign countries by any of the following four methods:
(a) Pursuant to any applicable treaty or convention, or
(b) Pursuant to a letter of request (whether or not captioned a letter rogatory), or
(c) On notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States. Notarizing officials as defined by 22 CFR 92.1 are so authorized by the law of the United States, or
(d) Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. [60 FR 51722, Oct. 3, 1995] Sec. 92.52 ``Deposition on notice'' defined.
A deposition on notice is a deposition taken before a competent official after reasonable notice has been given in writing by the party or attorney proposing to take such deposition to the opposing party or attorney of record. Notarizing officers, as defined by 22 CFR 92.1, are competent officials for taking depositions on notice in foreign countries (see Sec. 92.51). This method of taking a deposition does not necessarily involve the issuance of a commission or other court order. [60 FR 51722, Oct. 3, 1995] Sec. 92.53 ``Commission to take depositions'' defined.
A commission to take depositions is a written authority issued by a court of justice, or by a quasi-judicial body, or a body acting in such capacity, giving power to take the testimony of witnesses who cannot appear personally to be examined in the court or before the body issuing the commission. In Federal practice, a commission to take depositions is issued only when necessary or convenient, on application and notice. The commission indicates the action or hearing in which the depositions are intended to be used, and the person or persons required to take the depositions, usually by name or descriptive title (see Sec. 92.55 for manner of designating notarizing officers). Normally a commission is accompanied by detailed instructions for its execution. [22 FR 10858, Dec. 27, 1957, as amended at 60 FR 51723, Oct. 3, 1995] Sec. 92.54 ``Letters rogatory'' defined.
In its broader sense in international practice, the term letters rogatory denotes a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. In United States usage, letters rogatory have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity. The legal sufficiency of documents executed in foreign countries for use in judicial proceedings in the United States, and the validity of the execution, are matters for determination by the competent judicial authorities of the American jurisdiction where the proceedings are held, subject to the applicable laws of that jurisdiction. See Sec. 92.66 for procedures in the use of letters rogatory requesting the taking of depositions in foreign jurisdictions.