Representing Absentee Migrant Workers in U.S. Courts (Global Workers Justice Alliance, 2008)

8/14/2019 Representing Absentee Migrant Workers in U.S. Courts (Global Workers Justice Alliance, 2008)

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Produced Nov., 2008

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113 University Pl, 8th Fl, New York, New York, 10003 United States917-238-0979 www.globalworkers.org [email protected]


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This manual is dedicated to farmworker advocates who have always gone the extra mile to

ensure that their transnational migrant clients, no matter where they go, get their day in court.

Acknowledgements

There are many people to thank for making this Manual possible. Several people deserve specialattention for their unique contributions. A special thank you goes out to Elisa Catera, RebeccaHeller, Kyle Smith, and Melissa Brennan; legal interns who provided critical research andanalysis. Rebecca Smith, Greg Schell, and the Centro de Derechos de los Migrantes deservecredit for their insightful editorial comments. Finally a thank you to the staff at Global Workers,Cathleen Caron, Kate DAdamo, and Griselda Vega, for the countless hours required to make theManual a reality.


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This Manual was printed with the support of the Southern Poverty Law Center.


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TableofContentsINTRODUCTION............................................................................................................................................. 1I.Discovery.................................................................................................................................................... 3

A.Depositions.......................................................................................................................................... 31.AppearingintheUnitedStatesforDepositions................................................................................ 32.MechanismstoBringClientsintotheUnitesStatesforLegalProceedings...................................... 4

a. Tourist Visas ................................................................................................................... 4b. Parole.............................................................................................................................. 6

3.ConductingDepositionsAbroad...................................................................................................... 10a. Moving for Protective Orders...................................................................................... 10b. Paying Expenses Related to Depositions Outside of the United States ........................ 15c. Procedural Challenges.................................................................................................. 16

II.Trial......................................................................................................................................................... 23A.ReturningforTrial............................................................................................................................... 23B.AdmittingDepositionsinLieuofLiveTestimony................................................................................ 23

III.UsingU.S.CourtstoAddressViolationsofU.S.LawtoForeignClientsonForeignSoil........................ 25A.ExtraterritorialApplicationsofU.S.Law............................................................................................. 25

1.Background..................................................................................................................................... 252.ExtraterritorialApplicationofFederalLaws................................................................................... 253.QualifiedforEmployment............................................................................................................... 264.ContactswiththeUnitedStatesMayRenderExtraterritorialApplicationArgumentUnnecessary

............................................................................................................................................................ 27IV.CONCLUSION.......................................................................................................................................... 29AppendixA:Programs................................................................................................................................ 31AppendixB:HowGlobalWorkersCanAssistyouwithyourOverseasLowWageClients......................... 33


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ChallengesinTransnationalLitigation: Page 1Representing Absentee Migrant Workers in U.S. Courts

INTRODUCTIONEvery two years, farmworker advocates from across the nation come together to discuss

strategies and challenges to representing their ever-mobile farmworker clients. Over the years,the profile of the American farmworker has changed from one born in the United States to oneborn overseas, mostly Mexico. Today, the majority of farmworkers labor without properauthorization (a.k.a. undocumented), and increasingly they come temporarily, through the H-2A guestworker program. The changing demographics have also meant a change in strategy forfarmworker advocates. No longer do the chronically exploited clients remain in the UnitedStates, but many leave to return to their home countries. Their absence, whether temporary orpermanent, due to an injury, deportation, or just plain homesickness, presents unique and newchallenges. Farmworkers will continue to enter the United States from an increasingly diverselist of foreign countries. One of the great challenges of the 21

stcentury farmworker advocate is

how to ensure that these workers, no matter where they go, can have their day in court for abuses

suffered while working in the United States.

After presenting at the National Farmworker Law Conference in 2006 on the challengesof transnational litigation, Global Workers Justice Alliance (Global Workers) endeavored to drafta manual that would be of use to all advocates who litigate on behalf of todays exploited andmobile immigrant workforce. The fact is that immigrant workers dominate the low-wageemployment sector in the United States today. As a consequence, an increasingly wider circle ofadvocates now struggle to represent their often absent clients.

The mission of Global Workers is to combat worker exploitation by promoting portablejustice for transnational migrants through a cross-border network of worker advocates andresources. Global Workers believes that portable justice, the right and ability of transnationalmigrants to access justice in the host country even after they have departed, is key to achievingjustice for todays global migrants. Global Workers message to advocates is simpledont giveup on your clients who leave the United States. Global Workers was founded in 2005 toempower U.S. advocates to handle the unique challenges of representing clients who have leftthe United States.

This Manual attempts to outline the challenges involved, and suggest ways that they canbe addressed. This will be a living document. Global Workers encourages practitioners toprovide us with tips they have learned on the way and suggest additional areas that should beexplored. The Manual will be updated every few years to reflect that input.


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Challenges in Transnational Litigation:

Representing Absentee Migrant Workers in

U.S. CourtsI.Discovery

Civil discovery is the first phase in litigation where special challenges will present themselves ifyour client is no longer located in the United States.

A.Depositions1. Appearing in the United States for Depositions

Because the plaintiff often chooses the forum, she will more likely be required to attendher deposition in the forum district. [O]rdinarily, a defendant is entitled to examine a plaintiff inthe forum where plaintiff has chosen to sue.

1A defendant, on the other hand, does not choose

the forum and, therefore, the Court is more likely to protect him from a deposition set in theforum district. A deposition of a corporation through its agents or officers should normally betaken at the principal place of business of the corporation.2

However, "if special circumstances are shown, such as hardship or burden to the plaintiff,which outweigh any prejudice to the defendant, the general rule may yield to the exigencies ofthe particular case. The matter rests at the discretion of the court . . . "3 In these circumstances,you may apply to the court for a protective order allowing your client to be deposed in her home

country.4

But in certain circumstances, your client may need to appear in person.

The court may also choose to compel your client to return. The Federal Rules of CivilProcedure grant federal courts the discretion to determine the location of a deposition. 5 Thecourts reasoning may vary, and may be challenged with a protective order, but it is within thejurisdiction of the court to require in-person testimony.

In some jurisdictions, local rules require that a non-resident plaintiff provide in-persontestimony. For example, the Indiana Rules of Trial Procedure stipulate that, A non-resident

1Seuthe v. Renewal Products, Inc., 38 F.R.D. 323, 324 (S.D.N.Y. 1965); See also Clem v. Allied Van Lines Int'lCorp., 102 F.R.D. 938, 939 (S.D.N.Y. 1984);Institutio Per Lo Sviluppo Economico Dell' Italia Meridionale v.Sperti Prod., Inc., 47 F.R.D. 530, 533 (S.D.N.Y. 1969);Haviland & Co. v. Montgomery Ward & Co., 31 F.R.D.578, 580 (S.D.N.Y. 1962).2Turner v. Prudential Ins. Co. of America, 119 F.R.D. 38 (M.D.N.C. 1988)(citing 8 C. Wright & A. Miller, FederalPractice and Procedure, 2112 at 409-10 (1970)).3Seuthe, 38 F.R.D. at 324.4See infra I(A)(3)(a) Moving for Protective Orders5 Fed. R. Civ. P. 26(c)(2). See alsoGen. Leasing Co. v. Lawrence Photo-Graphic Supply, Inc., 84 F.R.D. 130 (W.D.Mo. 1979).


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plaintiff may be required to attend at his own expense an examination in the county of this statewhere the action is commenced or in a county fixed by the court.6The Middle District ofFlorida Local Rules states that it is the general policy of the court that a non-resident plaintiff,or a plaintiff living outside the state of Florida, can reasonably expect to be deposed at least oncewithin the District.7 The Northern District of Florida Local Rules similarly read, [I]t is the

policy in this district that the deposition of a non-resident plaintiff may be taken at least once inthis district.8

Despite the rule, the Northern District of Florida has overturned a magistrate judgesruling that required in-person depositions when a Mexican plaintiff was unable to obtain a visa totravel to Atlanta.9 But the U.S. District Court for the Middle District of Florida chose to upholdthe rules inBrown v. Bray.

10In this case, the plaintiff moved for a protective order to allow her

to testify from her home in Indiana because she suffered from dementia and severe asthma. Thecourt denied her protective order, ruling, Other than making general statements that submittingto a deposition would result in undue burden and expense on her personal health and well being[sic], Plaintiff failed to demonstrated that she cannot travel to Florida and cannot submit to afull-length deposition for a case thatshe initiated.11

It is important to note that both the phrasing in Brown and the rules for the Middle andNorthern Districts of Florida imply room for leniency. The rules state only that requiring in-person testimony is a general policy, not an exclusive mechanism for deposing plaintiffs. InBrown, the Courts reasoning implies that if Plaintiff had submitted more specifics, and a more adetailed doctors note, it would have considered her protective order.

2. Mechanisms to Bring Clients into the Unites States for Legal Proceedings

If the client needs, or prefers, to return to the United States to give her deposition, thereare several avenues you can pursue to bring her back. Circumstances may vary depending on the

country of origin, immigration bars that may apply to the client, and availability of funding fortravel. The simplest way to bring a client into the United States is through a tourist visa, butmigrant workers will often have a difficult time obtaining tourist visas due to reasons describedbelow. If your clients visa is denied, you can apply for the client to be temporarily paroled intothe country for purposes of participating in the litigation. While there are no explicit bars onapplying for parole, it is difficult to receive parole; therefore it is unlikely that your client will begranted parole more than once.

a. Tourist Visas

Tourist visas are the most common way for transnational worker advocates to bring their

clients to the United States. During a recent conversation with U.S. consular officials in Mexico

6 Indiana Rules of Trial Procedure 45(D)(2).7 Middle District of Florida Local Rules 3.04(b).8 Northern District of Florida Local Rules 26.2(2)(2).9Javier Lizarraga-Ruiz v. Georgia-Pacific Corp., Court Order No. 4:00cv37/RV/SMN, at *2 (N. Dist. of Fl. Nov. 8,2001)(on file with author).10Brown v. Bray & Gillespie III Mgmt. LLC., 2007 U.S. Dist. LEXIS 3223 at *3 (Jan. 17, 2007).11Id. at 3.
http://www.just-pay.org/clearinghouse/attachment.119104http://www.just-pay.org/clearinghouse/attachment.119104


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City, they stated that they routinely grant tourist visasas long as no admissibility bars applywhen an Attorney Generals office provides the visa applicant with a letter stating that they arereturning to testify in a judicial proceeding.

12For non-profit agencies, the consular officials

recommended the letter be accompanied by a judicial order to legitimize the request.13

Additional steps may also prove useful in securing a tourist visa for the client. Forexample, one can contact the consulate ahead of time to discuss the importance of the lawsuitand why the clients testimony is critical. If the client is a guestworker, one should certainlyraise the issue of fairness emphasizing that the client obeyed the visa restrictions by returning toher home country. Other possibilities include sending someone to accompany the client to thevisa interview to underscore the importance of returning to the United States.

i.) Application

Acquiring a tourist visa can be problematic because issuance is discretionary. Under theUnited States Immigration and Nationality Act (INA), applications will be read with thepresumption that any visa applicant intends to eventually immigrate to the United States. Theapplicant must disprove this presumption by showing that s/he:

1.) Has a well-established residence outside of the United States;2.) Has a realistic, logical reason to visit the United States;3.) Plans to stay in the United States for a specific, limited time; and4.) Have sufficient resources of his/her own to cover the cost of the trip, regardless of

whether a relative or friend wants to help pay for travel.14

Remember that these are only guidelines. The decision to issue the visa is discretionary,and the lack of one requirement, for example a lack of assets, is not be an absolute bar. For moreinformation on applying for a tourist visa,see Destination USA: Applying for a Tourist Visa,www.unitedstatesvisas.gov/visiting2.html.

ii.) Admissibility Bars

If the client has previously been subject to deportation (also called removal), there is a10-year bar to any kind of re-entry.15 Specifically, if the client has been removed, s/he isineligible to receive a visa for the 10-year period following her departure.16 If your client hasbeen removed two or more times, there is a 20-year bar to re-entry, beginning from the most

12Interview by Cathleen Caron with U.S. Consular Officials, U.S. Consulate in Mexico City, MX (Sept. 25, 2008).13Id.14 Immigration and Nationality Act (INA) 214(b), 8 U.S.C.S. 1184(b) (2004).15 22 C.F.R. 40.91(b).16 INA 212 (a)(9)(A)(ii).


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recent date of removal.17 If your client has been convicted of an aggravated felony, there is apermanent bar to reentry.18

The Department of Homeland Security has the discretion to make exceptions, and grant avisa application in spite of a bar, but this happens only in very rare situations. 19 If deemedinadmissible by the consular official, the visa applicant will have to submit additional forms tothe consular official, which will be sent to the Department of Homeland Security for review. Analien who is inadmissible because he has been removed or has voluntarily departed following anorder of removal should file Form I-212, Application for Permission to Reapply for AdmissionInto the United States After Deportation or Removal20 and I-192, Application for AdvancePermission to Enter as a Nonimmigrant21 to seek a discretionary grant of entry. An alien who isotherwise inadmissible need only file form I-192.

22The decision to refuse or grant the

application to waive inadmissibility will be based on three factors: (1) the risk of harm to societyif your client is admitted; (2) the seriousness of your clients immigration or criminal lawviolation; and (3) the nature of your clients reasons for wishing to enter the United States.

23

While the possibility of obtaining a waiver is limited, it is an available option for advocates toconsider.

b. Parole

Parole is the temporary admission of an alien into the United States for humanitarianpurposes or public benefit. It is temporary and can be revoked at any time. The relevant law isfound in 8 U.S.C.S. 1182(d)(5)(A), allowing the Attorney General, in his discretion, to:

[P]arole into the United States temporarily under such conditions as he mayprescribe only on a case-by-case basis for urgent humanitarian reasons orsignificant public benefit any alien applying for admission to the United States,but such parole of such alien shall not be regarded as an admission of the alienand when the purposes of such parole shall, in the opinion of the Attorney

General, have been served the alien shall forthwith return or be returned to thecustody from which he was paroled and thereafter his case shall continue to bedealt with in the same manner as that of any other applicant for admission to theUnited States.24

17 22 C.F.R. 40.91(c).18 22 C.F.R. 40.91(d).19 22 C.F.R. 40.91(e).20 8 C.F.R. 1182 (g), (h), (i). Seealso Form I-212, Application for Permission to Reapply for Admission into theUnited States After Deportation or Removal, Special Instructions, available at

http://www.uscis.gov/portal/site/uscis.21 8 C.F.R. 212.4(b).22 8 C.F.R. 212.4(b). There are special instructions for the I-192 Application for Advance Permission to Enter asNonimmigrant Department of Homeland Security, as well as, an inadmissibility list in 8 U.S.C.A. 1182 (a), suchas inadmissablity due to membership or affiliation with any Communist or other totalitarian party or organization, orinadmissiblity due to disease, mental or physical defect.23Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978).24 With the reorganization of immigration enforcement, the authorization to grant parole has been shifted to theSecretary of the Department of Homeland Security or his designees. 8 C.F.R. 212.5(a).


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Because there is no definitive legal definition of parole, different types of parolefrequently become interchanged during the application process.25

i.) Types of Parole

Parole of Aliens into the United States, 8 C.F.R. 212.5, lists various categories ofaliens who benefit from parole for urgent humanitarian reasons or significant public benefit.The authority for granting parole to persons outside of the United Sates is found in subsection(c).26

Some advocates have had success applying for humanitarian parole or humanitarianvisas, as they are sometimes called, to have their clients come to the United States to bedeposed or to testify at trial. Although humanitarian parole or humanitarian visa is notlegally defined, it is a term commonly used in the consulates and seems to apply generally toanyone paroled into the United States through the general authority under the INA 212(d)(5)(A) (which mirrors the definition of 1182(d)(5)(A) quoted above) and as further detailedunder 8 C.F.R. 212.5. All of these sources refer to urgent humanitarian reasons orsignificant public benefit as the general, yet discretionary, reason to grant parole.

One parole category for detained aliens is for those who will be witnesses inproceedings, or to be, conducted by judicial, administrative, or legislative bodies.

27This basis

for parole could be useful for advocates of transnational workers.28 Parole for returningwitnesses, although the regulation itself was not cited, was first discussed in United States v.Filippi, where it was labeled public interest parole.29 InFilippi, the defendant was appealing aconviction for trafficking cocaine from Ecuador to Puerto Rico. Defendant claimed that his DueProcess rights had been violated because the U.S. government refused to request public interestparole for the only material defense witness, who lived in Ecuador. The First Circuit ruled thatthe failure to request public interest parole for this witness was a violation of Due Process, and

the government had a duty to send the appropriate request to the INS.30 Although the opiniondoes not reference the legal source of public interest parole, Filippi is useful to reinforce theproposition that entering the United States to testify at trial is an appropriate use of theDepartment of Homeland Securitys parole authority.31

25 Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure, Matthew Benderand Company, Inc., 2008, at 62.01. See also Matter of O., 16 I. & N. Dec. 344 (1977).26 8 C.F.R. 212.5(c).27 8 C.F.R. 212.5(b)(4).28 Section 212.5 makes provision for paroling two major categories of aliens, those who have been or are detainedand all other arriving aliens. See subsection (b) and (c) respectively. Although the specific provision setting out

parole for witnesses in legal proceedings is listed in subsection (b)(4), the language of subsection (c), which statesthat officials granting parole maydo so under such terms and conditions . . . as he or she may deem appropriatesuggests that the reasons delineated under subsection (b) could be a basis for paroling all other arriving aliens aswell.29United States v. TheresiusFilippi, 918 F.2d 244, 246 (1st Cir. 1990).30Filippi, 918 F.2d at 248.31 Many U.S. consular officials are familiar with humanitarian parole but have never even heard of the termpublic interest parole. Interview by Cathleen Caron with U.S. Consular Officials, U.S. Consulate in Mexico City,MX (Sept. 25, 2008.)


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ii.) Application Process

There are three ways of obtaining parole for an overseas client. The parolee can self-petition or a third party, such as a lawyer, may apply on her behalf. Foreign consulates can alsopetition for their nationals, but it is unclear if the same administrative procedures described

below apply.

An application for parole must include the application fee, Form I-131, Application forTravel Document, photographs (if you are applying from abroad, do not submit photographswith your applicationthe U.S. Embassy or Consulate or Department of Homeland SecurityOffice abroad will ask for them), and a copy of an official photo identity document with yourclients name, photograph and date of birth, such as a government-issued drivers license or theidentity page of a passport.

Additionally, if your client is outside the United States, s/he will need to provide:

1.) A statement of who will provide medical care, transportation, housing,and other expenses and subsistence needs;

2.) Form I-134, Affidavit of Support, with evidence of the sponsorsability to provide necessary support;

3.) A statement of why a U.S. visa cannot be obtained, including whenand where attempts were made to obtain a visa;

4.) A statement of why a waiver of inadmissibility cannot be obtained toallow issuance of a visa, including when and where attempts weremade to obtain a waiver, and a copy of any USCIS or former INSdecision on your waiver request;

5.) A copy of any decision on an immigration petition filed for theapplicant, and evidence regarding any pending immigration petition;

6.) A complete description of the emergent reasons explaining why paroleshould be authorized and including copies of any evidence you wish tobe considered, and indicating the length of time for which the parole isrequested; and

7.) A cover letter, if not applying with another Form.For more information, to download all forms and look at sample cover letters,seewww.immihelp.com/greencard/adjustmentofstatus/advance-parole.html.

iii.) Lawyers Sponsoring Clients for Parole Purposes

Form 1-134, the Affidavit of Support, can present a professional dilemma. Most clientscannot pay their own expenses and most rely on the advocates to pay their expenses to travel toand remain in the United States temporarily. The Affidavit of Support, however, goes evenfurther. As a sponsor, it requires you to prove that you have sufficient resources to ensure that


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the parolee does not become a public charge while in the United States and be willing to providea bond as a guarantee.32

One advocate argued to the government that sponsorship, among other things, could be aviolation of the Professional Rules of Conduct and requested the parole petition to be processedwithout the Affidavit of Support. 33 Rule 1.8(e) of the Model Rules of Professional Conductstates:

A lawyer shall not provide financial assistance to a client in connection withpending or contemplated litigation, except that: (1) a lawyer may advance courtcosts and expenses of litigation, the repayment of which may be contingent onthe outcome of the matter; and (2) a lawyer representing an indigent client maypay court costs and expenses of litigation on behalf of the client.34

Nearly every states rules of professional conduct contain a provision similar to Model Rule1.8(e), allowing lawyers to either advance costs associated with litigation or pay such costs forindigent clients.

35Although some states go further in allowing attorneys to provide for costs not

specifically related to litigation,36 a brief survey of state courts indicates that most prohibit theadvancement of living costs to clients. For example, a New York court stated that although anattorney may advance the court costs and the costs of medical examinations, he cannot provideother forms of financial assistance to a client such as living expenses, and censured the attorneyswho had aided clients in meeting personal financial obligations.37

32 The application also requires information on ones bank accounts, salary, value of personal property, stocks andbonds, life insurance, real estate, and ones dependents. United States Citizen Immigration Services, Affidavit ofSupport, Form I-134, www.uscis.gov/files/form/i-134.pdf.33

Letter from Mike Holley, Attorney, Southern Migrant Legal Services, to U.S. INS Parole and HumanitarianAssistance Branch (Dec. 6, 2002)(on file with author).The humanitarian visa in that case was ultimately issued

without the Affidavit of Support, although the government did not affirmatively address that point when doing so.34Model Rules of Professional Conduct Rule 1.8(e).

35The only states that do not explicitly provide for attorneys to pay costs without expectation of reimbursement forindigent clients are California, Oregon and Washington. See California Rules of Professional Conduct [hereinafterCalifornia Rules], available at http://calbar.ca.gov/calbar/pdfs/rules/Rules_Professional-Conduct.pdf; Oregon Rulesof Professional Conduct [hereinafter Oregon Rules], available athttp://www.osbar.org/_docs/rulesregs/orpc.pdf; Washington State Court Rules: Rules of Professional Conduct [hereinafter Washington Rules], availableathttp://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC. However, California allows forrepayment to be contingent upon outcome, and Oregon limits client liability to the extent of his/her ability to pay.California Rules, 4-210(A)(3); Oregon Rules, 1.8(e). Washington, on the other hand, only allows for paymentcontingent on outcome when there is a class action suit. Washington Rules, 1.8(e)(2).36For example, Texas also allows for advancing the costs of reasonably necessary medical and living expenses.Alabama allows lawyers to provide emergency financial assistance to clients although repayment cannot be

contingent on the outcome of the case. Texas Disciplinary Rules of Professional Conduct Rule 1.08(d)(1), availableathttp://www.texasbar.com/ContentManagement/ContentDisplay.cfm?ContentID=13942. California provides thatattorneys may not only advance costs for prosecuting or defending a claim but also to otherwise protect[ ] orpromote[ ] client's interests. California Rules,supra note 35, Rule 4-210(A)(3). Minnesota allows attorneys,under certain circumstances to loan money to clients. Minnesota Rules of Professional Conduct, 1.8(e)(3),available athttp://www.mncourts.gov/lprb/05mrpc.html#r18.37Matter of Arensberg, 553 N.Y.S.2d 859, 860 (3rd Dept 1990). See alsoMatter of Resseguie, 526 N.Y.S.2d 863,865 (3rd Dept. 1988), in which the court suspended an attorney for six months who, among other violations, hadviolated D.R. 5-103(B) by making a loan to a client of $550 for living expenses.
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iv.) Common Reason for Denial

Although multiple reasons can result in a denial of parole, a common reason for rejectedapplications was that the applicant had not exhausted other avenues of immigration prior toapplying for parole.38 Petitions for parole often take months to resolveif you do not have time

to wait for the application for parole to be granted, you should ask the court for a protectiveorder. Attempts to gain admission through parole will strengthen your case for a protective orderby illustrating that you have made every attempt possible to get your client into the country. Ifone does not have the time to apply for a tourist visa before applying for parole, one should atleast state why a tourist visa would be unattainable due to, for example, lack of assets oradmissibility bars.39

v.) Obtaining Assistance from Consular Officials

Foreign consular officials may also request parole on behalf of a transnational worker.Although this is typically used for medical reasons, the most common use of a humanitarianvisa, several consular officials have indicated a willingness to seek these visas for workers toreturn to the United States to testify.40 There are no statistics available on whether consulatesmay be more successful in seeking parole than individual applicants, but it is worth checkingwith the local consulate to see what assistance might be available.

3. Conducting Depositions Abroad

If the client cannot travel to the United States to be deposed, several alternatives arepossible. All parties can travel to the client (plaintiffs attorneys, defendants attorneys, courtreporter, and translator) or some of the parties can travel while others participate by remotemeans (video or telephonic). The easiest way to establish this process is through mutualagreement with the defendant. If both parties can agree to a procedure for obtaining depositions

outside of the United States, they can avoid the need for a protracted battle over discovery.

If the defendant is unwilling to agree, the plaintiff may apply for a protective orderpetitioning to be deposed in her home country. Once the protective order is received, the court,under Federal Rule of Civil Procedure 27(a)(3), will prescribe the process by which thedeposition shall take place.

a. Moving for Protective Orders

If the plaintiff is not able to come to the United States to be deposed in person, you mayhave to apply for a protective order to allow her to be deposed outside of the United States under

38 U.S. Govt Accountability Office, Report to Congressional Requesters GAO-08-282, Immigration Benefits:Internal Controls for Adjudicating Humanitarian Parole Cases are Generally Effective but Some Can BeStrengthened (2008), available athttp://www.gao.gov/new.items/d08282.pdf.39See infra I(A)(3)(a) Moving for Protective Ordersfor how to incorporate these obstacles into motions to holddepositions in an alternative form and/or outside the United States.40 Interview by Cathleen Caron with U.S. Consular Officials, Mexican Consulate in New York City and GuatemalanConsulate in New York City (2007).


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Rule 26(c) of the Federal Rules of Civil Procedure.41 A party may obtain a protective order upona showing of good cause, demonstrating undue burden or hardship.42 "[I]f special circumstancesare shown, such as hardship or burden to the plaintiff, which outweigh any prejudice to thedefendant, the general rule may yield to the exigencies of the particular case. The matter rests inthe discretion of the court."43

There is no one test to satisfy when moving for a protective order. However, successfulmotions typically establish three things:

1.) Plaintiff had no choice but to bring the suit in the United States;2.) Plaintiff will suffer either undue burden or hardship to testify inperson;3.) Satisfactory alternatives are available.

Advocates have tended to use one or all three of the above arguments to successfully move for aprotective order.

i.) Plaintiff had to file in the United States

The first part of a request for a protective order should explain why plaintiff needed tofile in a United States court. If the client is a guestworker, you can argue that s/he was activelyrecruited by U.S.-based companies after the companies certified that no American workers wereavailable for the job. The client is also suing in the district where the legal violation took place.

In Connell v. City of New York, the court refused to require an indigent plaintiff to returnto the forum for the deposition because plaintiff had no choice but to bring suit in the SouthernDistrict of New York as his claims involve the New York City Police Department.44 InKovalsky v. Avis Rent-a-Car, Inc., the court agreed with plaintiff that since her only option was

to assert her claim in Puerto Rico, her request to be deposed in her home state of New Jerseyshould be granted.45 InEndte v. Hermes Export Corp., the court recognized that in certain cases,not being able to bring a lawsuit in the United States might leave plaintiff without an availableremedy.46 Finally, inFederal Practice and Procedure, the authors note, If a plaintiff has suedin a court far distant from home because the transaction in question occurred in that district. . . .

41 Fed. R. Civ. P. 26(c)(1), A party or any person from whom discovery is sought may move for a protective orderin the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the

district where the deposition will be taken. The motion must include a certification that the movant has in good faithconferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment,oppression, or undue burden or expense....42 Fed. R. Civ. P. 26(c)(2).43Seuthe v. Renewal Products, 38 F.R.D. 323, 324 (S.D.N.Y. 1965).44Connell v. City of New York, 230 F. Supp. 2d 432, 437 (S.D.N.Y. 2002).45Kovalsky v. Avis Rent-a-Car. Inc., 48 F.R.D. 453, 454 (D. P.R. 1969).46Endte v. Hermes Export Corp., 20 F.R.D. 162, 164 (S.D.N.Y. 1957).


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the usual rule requiring plaintiff to come to the forum for his or her deposition seemsinappropriate.47

ii.) Undue Burden or Hardship to Return to the United States

- Difficulty Obtaining Visas

A non-U.S. citizen living outside of the United States may be unable to return tothe forum state because s/he would be denied a visa to re-enter the country. This could be due toadmissibility bars or their indigent status (see Appearing in the United States for Depositions). Inthe likely event that one cannot apply for visas or parole to enter the United States before movingfor the protective order, explain in the motion why it is unlikely that your client will receive atourist visa and/or the difficulty and length of time involved in obtaining parole into the country.

Several advocates have successfully made these arguments in application for protectiveorders. In one case, advocates argued that because it was impossible for the migrant plaintifffarmworker to return to the United States because of admissibility bars, he should be allowed to

testify via video-conferencing.48 InLuna v. Del Monte Produce, the clients lack of assets washighlighted as one of many arguments showing the impracticability of the workers returning tothe United States for depositions.49 If the tourist visa applications were denied, the advocatesfurther argued, the H-2 guestworker clients would be barred from applying for guestworker visasfor a certain period of time, thus jeopardizing a source of income they relied on to support theirfamilies.50 Because parole is granted sparingly, plaintiffs wished to reserve this option for trialor other proceedings in which their present and live testimony might be required. 51

- Economic hardship to apply for visa and travel internationally

Additional arguments inLuna v. Del Monte Produce, emphasized the financial burden

that applying for a visa would have on their clients especially when the chances of acquiring thevisa were very low. 52 Just the process alone was burdensome due to the costs of applying fortravel documents.53 The advocates also detailed the expenses of international travel, food andlodging, which were prohibitive.54 Furthermore, the time-consuming process of applying for therequired travel documents would force these manual laborers to forego many days of work andthus result in a substantial loss of income.55 The court accepted these arguments when ruling

47 CHARLES A.WRIGHT &ARTHUR R.MILLER, FEDERAL PRACTICE AND PROCEDURE 2112 (2nd ed. 2006).48Pl. Motion to Offer Videotaped Trial Depositions or Video-teleconferenced Testimony and Continuance 10

Plaintiff Husband et. al., v. Driver Defendant, et. al, No. 05-01649, (Chester County Ct. Aug. 9, 2006).49Luna v. Del Monte Produce, Pl.Mem. of Law in Support of Mot. for Protective Order, No. 1:06-cv-0200-JEC,(N.D. Ga. October 30, 2002).50Id. at 10.51Id. at 11.52Id.53Id. at 17.54Luna v. Del Monte Produce, Pl.Mem. of Law, at 17.55 Id. at 18.
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that the depositions were to be held in Mexico, where the plaintiffs resided, or by alternativemeans (video, telephone, or written questions).56

- Extreme Hardship

Extreme hardship can be found where the requirement to travel would have a negativeimpact of deponents ability to perform work for the public good. For example, in Scorano v.Crozer-Choster Medical Center, a number of doctors and nurses were granted protective ordersand allowed to give depositions at the Medical Center where they worked.57 The judge ruled thatbecause the doctors and nurses played an integral role at the Medical Center, patient care wouldbe compromised by forcing them to travel to the forum in Philadelphia to be deposed, resultingin extreme hardship.

iii.) Availability of Alternatives

Finally, plaintiff may want to illustrate the availability of satisfactory alternatives to anin-person deposition. This might include having the defendant conduct depositions by telephonic

or video-conferencing, having the defendant conduct depositions by written questions pursuantto Federal Rules of Civil Procedure 31, or allowing depositions at the forum venue close to trialto give plaintiff time to apply for parole to testify in the proceedings.

Some case law suggests that it may be good practice to demonstrate how burdensometravel to the forum would be by providing financial evidence. In Clem v. Allied Van LinesInternational Corp, the court rejected plaintiff's request to conduct his deposition by telephonefrom abroad, holding that absent extreme hardship, the plaintiff should appear for deposition inhis chosen forum.58 The court explained that although the plaintiff was living in Hong Kong atthe time, he had not adequately detailed his financial position in a way that allowed the court toassess whether the cost of attending the forum was prohibitive. The court felt that the cost of

transportation, estimated at $3,000, was not extreme, as the claims involved were in excess of$130,000., Furthermore, the plaintiff anticipated travelling to the United States later that sameyear. The District Court in the Southern District of New York denied also plaintiffs request for atelephone deposition inDaly v. Delta Airlines for similar reasons, explaining that some hardshipand inconvenience did not amount to extreme hardship.59

More recent case law suggests that the developing trend in federal courts allows forgreater flexibility in the manner of taking depositions regardless of a showing of hardship. Forexample, inRehau v. Colortech, Inc., the District Court for the Western District of Michigangranted plaintiffs motion to have depositions conducted by telephone because there was noindication that the integrity of the discovery process would be compromised by such an

allowance.60

In fact, the court specifically rejected the idea that any showing of hardship isrequired, noting: Nothing in the language of Rule 30(b)(7) requires that a telephonic deposition

56Luna v. Del Monte Fresh Produce, 2007 U.S. Dist. LEXIS 36893, at *9-11 (N.D. Ga. May 18, 2007).57Scarano v. Crozer-Chester Medical Center, 1991 U.S. Dist. LEXIS 16392, at *6 (E.D. Pa. 1991).58Clem v. Allied Van Lines International Corp., 102 F.R.D. 938, 940 (S.D.N.Y. 1984).59Daly v. Delta Airlines, 1991 WL 33392, at *2 (S.D.N.Y. Mar. 7, 1991).60Rehau v. Colortech, Inc., 145 F.R.D. 444, 446-47 (W.D. Mich. 1993).
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may only be taken upon a showing of necessity, financial inability, or other hardship . . . bylooking to a concomitant 1980 amendment to Rule 30, one discerns a purpose to encourage thecourts to be more amenable to employing non-traditional methods for conducting depositions . . .in order to reduce the cost of federal litigation.61 The Southern District of New York supportedthis view when, subsequent to Clem, it stated that, the Federal Rules of Civil Procedure and a

steadily developing body of case law recognize that telephone depositions are a presumptivelyvalid means of discovery.62

In a rather amusing hearing regarding a discovery dispute, a judge emphasized thatrequiring the plaintiffs to travel by bus or plane to Arkansas was simply not a reasonable solutiondue to the cost and the difficulty of indigent, non-English speaking farmworkers to navigate thetransportation options.

63The court concluded that a telephone deposition was the best alternative

if the defendants did not want to travel from Arkansas to various U.S. states or Mexico to deposethe plaintiffs.64

It may be helpful to draw parallels to other areas of law, which use telephone depositionsmore regularly, such as unemployment compensation. Most states require the claimant to bephysically present at the workers unemployment compensation hearing, a hurdle that can bechallenging for workers who have left the state of employment. Courts, however, haveincreasingly allowed claimants to attempt to show good cause for not being able to appear.65 Atrend has developed toward eliminating the appearance requirement in unemploymentcompensation hearings, and allowing telephonic testimonies instead.66 These cases may providehelpful precedent in establishing the adequacy of alternative methods for depositions.

iv.) Additional Arguments-Abuse of Discovery

Defendants are unlikely to be amenable to reasonable alternatives to in-persondepositions since it is in their best interest to push the court to deny plaintiffs request for a

protective order. If plaintiff is unable to reach the forum and the protective order is denied, thesuit may be dismissed, or at the very least, severely weakened. Forcing indigent plaintiffs to paytravel expenses may deplete resources available for trial, or cause significant delay in theproceedings. If this situation arises, it may be useful to make an argument alleging abuse ofdiscovery on the part of the defendant.

61Id. at 446.62Normande v. Grippo, 2002 WL 59427, at *2 (S.D.N.Y. Jan. 16, 2002).63Id. at *11-12.64Heriberto-Gonzales Jimenez v. Gillam , Hearing Transcript, No. 4:04-CV-00506 at 9 (E.D. Ark. Jan. 26, 2005).65See, e.g.,Javier v. Goodwill Indus. of S. Fla., Inc. , 882 So.2d 524, 525 (Fla. Dist. Ct. App. 2004); Webb v. Labor& Indus. Relations Comn of Mo., 674 S.W.2d 672 (Mo. Ct. App. 1984).66 Allan A. Toubman, Tim McArdle & Linda Rogers-Tomer,Part II: Unemployment Compensation and Procedural

Issues: Due Process Implications of Telephone Hearings: The Case for an Individualized Approach to SchedulingTelephone Hearings, 29 U.MICH.J.L.REFORM 407, 407 (1996).
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In Societe Nationale Industrielle Aerospatiale v. U. S. Dist. Ct. for the S.D. of Iowa, theSupreme Court pointed out the potential for abuse of the discovery process when foreign litigantsare involved in U.S.-based lawsuits.

67Justice Stevens, writing for the majority, explained:

American courts, in supervising pretrial proceedings, should exercise specialvigilance to protect foreign litigants from the danger that unnecessary, or unduly

burdensome, discovery may place them in a disadvantageous position. Judicialsupervision of discovery should always seek to minimize its costs andinconvenience and to prevent improper uses of discovery requests. When it isnecessary to seek evidence abroad, however, the District Court must supervisepretrial proceedings particularly closely to prevent discovery abuses. Forexample, the additional cost of transportation of documents or witnesses to orfrom foreign locations may increase the danger that discovery may be sought forthe improper purpose of motivating settlement, rather than finding relevant andprobative evidence. Objections to "abusive" discovery that foreign litigantsadvance should therefore receive the most careful consideration.68

In this case, the Supreme Court was addressing the plight of a foreign defendant beingcompelled to produce evidence and witnesses in the United States. The numerous federal casesciting this part of the courts opinion also generally involve motions to compel foreign defendantcorporations to testify within the United States, or the adjudication of claims by foreigndefendant corporations that they should be deposed in their home countries. In one particularlyrelevant case,Pietraroia v. Northeast Utilities, the Supreme Court of the State of Connecticutgranted a protective order to an Australian plaintiff who had filed a workers compensation claimagainst his Connecticut employer.69 The plaintiff claimed he had suffered lasting, seriouspulmonary damage from exposure to asbestos. The defendant attempted to compel plaintiff toreturn to Connecticut to be examined by defendants choice of doctor. The court ruled in favor ofthe plaintiff, writing:

[I]t is only realistic in today's mobile world to expect that claimants may well no

longer live in or near Connecticut by the time they discover that they havecontracted asbestosis, and that, as in the present case, by that time they mayhave moved to other countries thousands of miles away. Occupational diseasesare, from a legal standpoint, peculiar in this -- that they arise, not from anaccident or event happening at a precise moment, but from a day to dayexposure to unhealthful conditions over an extended period; the exact time oftheir origin is necessarily obscure and their insidious progress is not revealeduntil, frequently after a long interval, the disability which they create manifestsitself.70

b. Paying Expenses Related to Depositions Outside of the United States

If the court grants a protective order the issue remains of how the additional costs will be

allocated. Under Federal Rules of Civil Procedure, Rule 30(b)(2), the party taking thedeposition shall bear the cost of the recording, but the rules are silent on how additional costsaccrued in conjunction with a deposition abroad are to be allocated. If the plaintiff is requesting

67Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the S.D. of Iowa, 482 U.S. 522, 546 (1987).68Id.69Pietraroia v. Northeast Utilities, 756 A.2d 845, 855 (Conn. 2000).70Id. at 855 (citing Green v. General Dynamics Corp., 245 Conn. 72, 73 (1998)).


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that depositions take place outside of the United States, the burden may be on the plaintiff tocover the fair and reasonable expenses of the extraterritorial deposition.71

Reasonable costs do notneed to include attorneys fees. InLuna v. Del Monte Produce,the judge ordered plaintiffs to pay for the cost of conducting the depositions abroad, includingairfare and lodging for two attorneys and a court reporter, but ruled that plaintiffs did not have tocover the cost of Defendants attorneys fees.72 Other protective orders have been successful withsecuring overseas depositions without the burden of additional expenses shifting to theplaintiffs.73

c. Procedural Challenges

Pursuant to Rule 28(b) of the Federal Rules of Civil Procedure, depositions may beconducted in foreign countries. Rule 30(b) lays out the other formal requirements for conductingoral depositions, which must be taken under oath. States laws also make provision for the takingof depositions abroad.74

i. Unlawful Practice of Law in a Foreign Country

Whether a U.S. attorney conducting a deposition on foreign soil is engaging in the unlawfulpractice of law in that country is an issue that must be explored before moving ahead with adeposition. The U.S. consulate in Guatemala warns U.S. attorneys not to conduct a depositionwithout the supervision of a Guatemalan attorney because of potential criminal charges.75 Theabsence of a similar admonishment on the U.S. consulate in Mexicos website suggests that inMexico this is not a concern although the issue requires further research.

ii. Administering the Oath

At the outset of a deposition, the officer administering the oath must state (i) theofficer's name and business address; (ii) the date, time, and place of the deposition; (iii) the

71Javier Lizarraga-Ruiz v. Georgia-Pacific Corp., Ct. Order No. 4:00cv37/RV/SMN, at 2 (N. Dist. of Fl. Nov. 8,

2001).72

Luna v. Del Monte Fresh Produce, 2007 U.S. Dist. LEXIS 36893, at *11 (N.D. Ga. May 18, 2007).73Heriberto-Gonzales Jimenez v. Gillam , Ct. Order No. 4:04-CV-00506 (E.D. Ark. Jan. 27, 2005).74 For example, in New York, depositions may be taken in a foreign country, any diplomatic or consular agent orrepresentative of the United States, appointed or accredited to, and residing within, the country, or a personappointed by commission or under letters rogatory, or an officer of the armed forces authorized to take theacknowledgment of deeds. N.Y. C.P.L.R. Rule 3113. In Florida, in a foreign country depositions may be taken(1) on notice before a person authorized to administer oaths in the place in which the examination is held, either bythe law thereof or by the law of Florida or of the United States, (2) 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 taketestimony, or (3) pursuant to a letter rogatory. 4 FL. PRAC. R 1.300 (b). Florida also has a provision whichallowsdepositions may be taken before any person at any time or place upon any notice and in any manner andwhen so taken may be used like other depositions. 4 FL. PRAC. R 1.300(c). No formal court action is requiredwhen where the witness to be deposed in another state will voluntarily appear and the parties are content to have alocal court reporter place the witness under oath and transcribe the testimony and the deposition transcript can beused in all ways authorized by the rules. 4 FL. PRAC. R 1.300(c)(Authors Comments Section).75 Embassy of the United States - Guatemala, U.S. Citizen Services, Legal Information and Assistancehttp://guatemala.usembassy.gov/acs_judicial_assistance.html (last visited, Nov. 11, 2008).
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deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; and(v) the identity of all persons present.76 The oath must be administered in the physical presenceof a person authorized to administer the oath, which when conducted in the United States iscommonly a court reporter who is licensed as a notary.77

Perhaps the most difficult hurdle in conducting a deposition abroad is ensuring that theofficer administering the oath to the deponent has the proper jurisdiction. The Federal Rulesdictate various methods of conducting depositions abroad that are worthy of exploration.Pursuant to Rule 28 of The Federal Rules of Civil Procedure, a deposition in a foreign countrymay be taken: (a) under an applicable treaty or convention; (b) under a letter of request, whetheror not captioned a letter rogatory; (c) on notice, before a person authorized to administer oathseither by federal law or by the law in the place of examination; or (d) before a personcommissioned by the court to administer any necessary oath and take testimony. 78 An analysisof each section follows.

- Depositions Taken Under an Applicable Treaty or Convention

The first part of Rule 28 states that a deposition can be made under an applicable treatyor convention.79 The Hague Convention on Taking Evidence Abroad in Civil or CommercialMatters, also known as the Hague Convention on Evidence, is an international treaty designed toimprove international judicial cooperation in civil and commercial proceedings.80 TheConvention establishes a set of procedures for obtaining evidence outside of the country where acase is pending, and when the country where a deposition is sought is a party to the Convention,the Conventions procedures may be invoked. The Convention currently has 44 ContractingStates, including the United States and Mexico, but not Guatemala.81 The mechanisms set forthin the Convention are notmandatory under U.S. law, but offer an alternative method forconducting discovery in transnational litigation.82

Article 1 of the Hague Convention on Evidence provides for the use of Letters of Requestto solicit cooperation from a foreign judicial system in gathering evidence, through a mediumsuch as depositions.

83A Letter of Request can be sent directly from a U.S. court presiding over

76 Fed. R. Civ. P. 30(a)(5)(A).77See e.g., National Notary Association, Administering Oaths, Affirmations And Jurats (Mar. 1, 1999), available athttp://www.nationalnotary.org/news/index.cfm?Text=newsNotary&newsID=82; Florida Governor's ReferenceManual For Notaries, Duties of a Notary 13 (citing Attorney General Opinion, No. 92-95, December 23, 1992),(November 2001), available athttp://www.flgov.com/notary_ref_manual;Washington v. Montefiore Hosp., 777N.Y.S.2d 524, 526 (3d Dept 2004) (finding deposition invalid when oath administered over the telephone).But seeN.Y. C.P.L.R. 3113 (d)(McKinney 2005), which suggests that the parties can stipulate to the officer administeringthe oath remotely.78

Fed. R. Civ. P. 28(b).79 Fed. R. Civ. P. 28(b)(1)(A).80 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter HagueConvention on Evidence], opened for signature Mar. 18, 1970, 23 U.S.T. 2555, reprinted following 28 U.S.C. 1781 (1994 & Supp. 1999), available athttp://www.hcch.net/index_en.php?act=conventions.pdf&cid=82.81Id.82Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482U.S. 522, 529 (1987).83Hague Convention on Evidence,supra note 80 at Article 1.


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litigation to a central authority in another Contracting State.84 In other words, the forum courtsends an official letter of request to the relevant authority in the plaintiffs or witness homecountry requesting that they take the deposition. The manner in which the deposition is takenwill depend on the procedures in that country. "The judicial authority which executes a Letter ofRequest shall apply its own law as to the methods and procedures to be followed."85State

signatories to the Hague Convention on Evidence are generally required to comply with requestsissued pursuant to the instrument. The Convention allows, however, for states to limit theiracceptance of the instrument through the use of reservations. Thus, the extent to which a Stateparty must abide by the Convention may be limited. Where the foreign state in question is not asignatory to the Hague Convention on Evidence, the Convention has no binding effect.

- Depositions Taken Under a Letter of Request

The second part of Rule 28 states that a deposition may be undertaken abroad under aletter of request, whether or not captioned a letter rogatory.86 A letter of request, also known asa letter rogatory, is a formal appeal from a court in one country to judicial authorities in anothercountry used to seek compulsion of evidence or service of process.87 This includes the taking ofdepositions. The letter typically would be utilized in cases where evidence is being suppressed ina foreign country and the U.S. Court wishes to use the power of the local judiciary to compelpresentation of the evidence, or where the U.S. Court is having trouble serving process on aforeign resident and requires the assistance of the foreign court.

88Note that a foreign court will

take testimony in accordance with the laws of its own nation. "In executing a letter rogatory thecourts of other countries may be expected to follow their customary procedure for takingtestimony."

89

- Depositions Taken on Notice Before a Person Authorized to Administer Oaths

The third part of Rule 28 states that a deposition may be taken on notice before a person

authorized to administer oaths in the place where the examination is held, either by the lawthereof or by the law of the United States.90

As noted previously, it is common practice for a notary in the United States to conductthe oath in a deposition occurring in the United States. Generally, however, a notary public in

84Id. In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the

provisions of the law of that State, request the competent authority of another Contracting State, by means of aLetter of Request, to obtain evidence, or to perform some other judicial act.Id.

85 Hague Convention on Evidence, supra note 80. See alsoVolkswagenwerk Aktiengesellschaft v. Superior Court, 33Cal.App.3d 503 (Cal. App. 1973) (finding that "courts ordering discovery abroad must conform to the channels andprocedures established by the host nation.").86Fed. R. Civ. P. 28(b)(1)(B).87 U.S. Dep't of State, Preparation of Letters Rogatory [hereinafter Letters of Rogatory] available athttp://travel.state.gov/law/info/judicial/judicial_683.html (last visited November 8, 2008).88 For more information on related procedures, See http://travel.state.gov/law/info/judicial/judicial_683.html.89 Advisory Committee Notes, 1963 Amendment, Fed. R. Civ. P. Rule 28.90 Fed. R. Civ. P. 28(b)(1)(C).


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testimony of witnesses who cannot appear personally to be examined in the court or before thebody issuing the commission.99

Under Federal law . . . and under the laws of some of the States, a commission to takedepositions can be issued to a foreign official or to a private person in a foreign country. 100 Onits face, it seems to suggest that is possible to petition the court to appoint a private person toconduct the oath abroad.101 However, commissions are generally issued to U.S. notarizingofficers.102 Notarizing officers include specified Department of State officials or individualsotherwise authorized by the Secretary of State.

Every secretary of embassy or legation and consular officer is authorized . . . atthe post, port, place, or within the limits of his embassy, legation, or consulate,to administer to or take from any person an oath, affirmation, affidavit, ordeposition, and to perform any notarial act which any notary public is requiredor authorized by law to do within the United States. At any post, port, or placewhere there is no consular officer, the Secretary of State may authorize anyother officer or employee of the United States Government who is a UnitedStates citizen serving overseas, including any contract employee of the United

States Government, to perform such acts, and any such contractor so authorizedshall not be considered to be a consular officer.103

But keep in mind, In countries where the right to take depositions is not secured by treaty,notarizing officers may take depositions only if the laws or authorities of the nationalgovernment will permit them to do so.

104

ii. Recording Depositions

Another issue to address is how to record the deposition. Under the Federal Rules of CivilProcedure, unless the court orders otherwise, testimony may be recorded by audio, audiovisual,or stenographic means.105 A party is not required to first obtain permission from the court orfrom the other party.106 Most practitioners utilize court reporters for a simultaneous, stenographic

9922 C.F.R 92.53. In Federal practice, a commission to take depositions is issued only when necessary orconvenient, on application and notice. The commission indicates the action or hearing in which the depositions areintended to be used, and the person or persons required to take the depositions, usually by name or descriptive title(see 92.55 for manner of designating consular officers).Id.10022 C.F.R. 92.66 (1995).101 It may be worth testing out this proposition by petitioning the court to authorize a private party to conduct an oathabroad.102 22 C.F.R. 92.66(a).10322 U.S.C.A. 4221 (1998).10422 C.F.R. 92.55. Under the terms of the multilateral treaty the Vienna Convention on Consular Relations,

consular functions include that of acting as a notary "provided that there is nothing contrary thereto in the laws andregulations of the receiving State." Vienna Convention on Consular Relations Art. 5(f), Apr. 24, 1963, 21 U.S.T. 77.The United States and Mexico have ratified this treaty; in addition, the United States and Mexico also have abilateral treaty, the Convention between the United States of America and Mexico Respecting Consular Officers,Mar. 26, 1943, 57 Stat. 800.105 Fed. R. Civ. P. 30(b)(3)(A).106Advisory Committee Notes, 1993 Amendments, subdivision (b) (1993 Amendments), Fed. R. Civ. P. 30(b). See,e.g., Convolve Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 182 (S.D.N.Y. 2004) (noting that the party takingthe deposition may choose the means of recording it and has no burden to justify the decision) (citations omitted)).


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(written), verbatim record of the oral testimony. Court reporters, however, are generally notavailable abroad.107 There is not much guidance as to whether a court reporter can record thedeposition remotely.

108Unless one checks with the court prior to the deposition, it may be wise

to have the court reporter physically present at the location where the deponent is givingtestimony. A good alternative to engaging a court reporter altogether is to record by video or

audio the deposition. The court will require a transcript only if the recorded deposition will beused at trial or in a dispositive motion.109 No special qualifications are needed for the person whooperates the audio or visual equipment.110

iii. Interpreters

There are no specific requirements for who can serve as an interpreter during adeposition, although federal court certified translators are generally more reliable.

111In some

countries, such as Mexico, court certified translators are available but expensive. You may wantto make arrangements to have the translator with whom you are familiar to travel abroad or seekout local interpreters. Most U.S consulates have a list of local interpreters on file.

107See, e.g.,International Judicial Assistance: Mexico, U.S. Dept of State, available athttp://travel.state.gov/law/info/judicial/judicial_677.html.108See e.g., Washington v. Montefiore Hosp., 777 N.Y.S.2d 524, 526 (3d Dept 2004). In Washington, the courtreporter who administered the oath and transcribed the testimony was not present in the deponents office during his

testimony but was listening to the deponents testimony over the telephone.Id. However, it is unclear whether thedeposition would have been held invalid had the officer administering the oath been present at the deposition andhad had another individual recording the testimony remotely through stenographic or other means.109 Fed. R. Civ. P. 32(c).110 N.Y. Ct. Rules, 202.15. For example, in New York, the operator of the camera may be an employee of theattorney taking the deposition, and need not be the officer. 202.15(c). The same rules are applicable for an audio-taped deposition. 202.15(j).111See e.g., Fed. R. Evid. 604 (An interpreter is subject to the provisions of these rules relating to qualification asan expert and the administration of an oath or affirmation to make a true translation.)


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II.TrialTrial can present many of the same challenges as discovery when your client is outside

the United States, and similar processes may be used to bring your client into the U.S. for trial, orsecure a protective order allowing them to testify from abroad.

A.ReturningforTrialIt may be beneficial for your client to appear in person. A personal appearance is

particularly advantageous where character, credibility and/or truthfulness are at issue. It may alsohelp to provide in-person testimony when there is a lack of concrete evidence in the case. In-person testimony can likewise make the plaintiffs case more sympathetic, and allow the plaintiffto answer questions from the judge. For more information on the various options to bring theclient to the United States, see I.A.1 Appearing in the United States for Depositions.

B.AdmittingDepositionsinLieuofLiveTestimonyIf depositions have been taken outside of the United States, plaintiffs can move to have them

admitted in lieu of live testimony. Advocates will face two restrictions concerning theadmissibility of the depositions at trial. First, Rule 32(a)(3)(B) of the Federal Rules of CivilProcedure provides that the deposition of a witness may be used by either party if the witness isat a greater distance than 100 miles from the place of trial or hearing, or is out of the UnitedStates, unless it appears that the absence of the witness was procured by the party offering thedeposition. This means that the party proffering the deposition must establish that the witness ismore than 100 miles from the forum due to circumstances independent of the litigation.

Second, the party invoking Rule 804 of the Federal Rules of Evidence, which allowsdepositions to be admitted in lieu of testimony as an exception to the hearsay rule, bears theburden of proving that the witness is unavailable.112 A declarant is "unavailable" if s/he isabsent from the hearing and the proponent of a statement has been unable to procure thedeclarant's attendance . . . by process or other reasonable means [a] declarant is notunavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence isdue to the procurement or wrongdoing of the proponent of a statement for the purpose ofpreventing the witness from attending or testifying.

113Under Rule 804, reasonable attempts

must be made to bring the witness to the forum for the purpose of in-person testimony ordeposition. If the witness is unable to reach the forum, a satisfactory explanation must be offeredas to why the witness is unable to attend the hearing. In the case of transnational migrant worker

litigation, arguments relating to prohibitive costs, and immigration or visa requirements, maysatisfy this burden.

112Garcia-Martinez v. City & County of Denver, 392 F.3d 1187, 1192 (10th Cir. 2004).

113 Fed. R. Evid. 804(a).


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Typically, advocates take the deposition of their clients overseas, or before they leave thecountry, and then submit the deposition as testimony at trial without demonstrating efforts made,if any, for the client to return to testify in person. Although this is standard practice, in the 10

th

Circuit this was challenged and the deposition rejected. In Garcia-Martinez v. City and County ofDenver, the Tenth Circuit refused to admit the deposition of the plaintiff, a Honduran national

who had returned to Honduras.

114

The court ruled that because Garcia-Martinez had broughtabout his own absence, the deposition was inadmissible under Federal Rules of Civil Procedure32(a).115 The court made this determination based on the lack of evidence that Garcia-Martinezcould not return to the United States, or that there was a satisfactory alternative means oftestifying. The court further ruled that the trial court retained significant discretion in applyingRule 32 to an absent party.116

Second, the court ruled that Garcia-Martinez was not eligible for an exception as anunavailable witness under Federal Rules of Evidence 804 because (1) he voluntarily failed toreturn for trial, (2) his absence was calculated and (3) there was no showing that alternativeoptions for testimony had been exhausted.117 The court was not swayed by the fact that Garcia-Martinez was under a standing deportation order, and had previously been cautioned by amagistrate judge that he risked being arrested and imprisoned if he showed up to the trial.118Although the case has yet to have an impact beyond the Tenth Circuit, it may be prudent todemonstrate why the client is unable to provide in-person testimony at trial.

114Garcia-Martinez, 392 F.3d 1187.115Id. at 1192.116Id.117Id. at 1193.118Id. at 1190, 1192-93.


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Americans with Disabilities Act (ADA)125 prohibits discrimination against people withdisabilities, and the ADEA prohibits age-based discrimination.126 Originally, none of these actsapplied to discrimination that took place overseas. In 1991, Congress enacted legislationclarifying that the ADA and Title VII applied to discrimination that occurred outside the UnitedStates, provided that it was perpetrated by an American corporation or an agent under the control

of an American corporation, and that the offended party was a U.S. citizen.

127

Congress specifiedin the legislation that the provisions would notapply to non-U.S. citizens who suffereddiscrimination abroad.128 The same limitations apply to the extraterritoriality of the ADEA.129This does not mean that non-U.S. citizens cannot make claims regarding statutorydiscrimination, but it does mean that the employment in question had to be in the United States.

As discussed below, courts have struggled to interpret exactly when claims brought underTitle VII, the ADA and the ADEA begin to apply in the case of foreign workers applying forjobs in the United States, and the Supreme Court has yet to take up the issue.

3. Qualified for Employment

In the case of H-2 guestworkers, the issue of authorization is not whetherthe worker wasauthorized to work in the United States, thus qualifying for statutory protections, but when thatauthorization began.

InReyes-Gaona, the Fourth Circuit ruled that a non-U.S. citizen did not have acognizable claim of age discrimination under the ADEA because the discriminatory behaviortook place abroad.130 The court noted that under the ADEA the term employee means anindividual employed by any employer, and includes any individual who is a citizen of the UnitedStates employed by an employer in a workplace in a foreign country.131Thus, the ADEA wasdeemed not to apply to foreign nationals who applied for United States jobs in foreign countries.In order to make this claim, the court ruled that the ADEA plaintiff must prove that he was

qualified for the job he sought. Under Fourth Circuit precedent, in order for a foreign national tobe qualified for a position, s/he needed to be authorized for employment in the United States atthe time in question.

132Submission of a rsum alone was insufficient to establish qualification

or authorization.133

124 42 U.S.C. 2000(e) (2) & (3) (2006).125

42 U.S.C. 12101 (a) & (b).126 29 U.S.C. 621(b).127See 42 U.S.C. 2000e-1(c).; 42 U.S.C. 2000e(f).128 42 U.S.C. 2000e-1(a). The Act would not "apply to an employer with respect to the employment of aliens

outside any State."Id.129 29 U.S.C. 630(f).130Reyes-Gaona, 250 F. 3d 861, 866-7.131Id. at 864 (citing 29 U.S.C.S. 630(f)).132Id. at 863 (citingEgbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187 (4th Cir. 1998)).133Id. at 866. Contra the National Immigration Law Center for an opinions criticizing this decision for its emphasison where the discrimination occurred as opposed to where the employment would be, available athttp://www.nilc.org/immsemplymnt/emprights/emprights026.htm. Fortunately, other circuits to date have notfollowed the reasoning of the Fourth circuit.


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In Olvera-Morales, a group of women brought a claim against several companiesinvolved in their recruitment and subsequent employment.134 The women claimed that althoughthey were qualified for positions with H-2A visas, those positions were reserved for men and thewomen were instead steered toward H-2B jobs, which were lower paying and had fewerguarantees. The defendants claimed that because Olvera-Morales applied on July 20, 1999, and

her I-94 was not approved until July 27, 1999, she was not qualified within the meaning ofTitle VII for the position. The court rejected this reasoning, observing that a categorical rulingthat a foreign national has no protection against discriminatory hiring practices simply becauseshe applied to work in the United States a few days before receiving INS documentation has thepotential to invite abuse by employers and to undermine the goals of Title VII.135

4. Contacts with the United States May Render Extraterritorial Application Argument

Unnecessary

Some courts have ruled that contacts between the worker and the United States may besufficient enough to apply the law outside the boundaries of the United States to the actions ofthe U.S.-based employer, thereby obviating the need to show extraterritorial intent of the law.

For example, in Olvera-Morales v. Sterling Onions, Inc., the application for theguestworker plaintiff was virtually guaranteed to be approved, and there were significantcontacts with the United States. 136 Given the extensive contacts with the United States at allstages of the recruitment, hiring and employment process, the court wrote, it is not clear thatthe extension of Title VII protection to plaintiff would amount to extra-territorial application ofthat law.137 The court in Olvera-Morales distinguished these facts from those in theReyes-Gaona case cited by defendants. 138 The court noted that inReyes-Gaona, the plaintiffsapplication for work in the U.S. had been rejected and there was no evidence that he had appliedfor or expected to receive work authorization to work in the United States.139 Thus, his contactswith the U.S. had been minimal and were distinguishable from those in Olvera-Morales.140

Most recently, the Fifth Circuit expanded on the contacts analysis in Gomez v.Honeywell Intnl, Inc.

141In Gomez, the court adopted a center of gravity test to determine

when non-U.S. citizens had viable employment discrimination claims.142 To determine whetheran employee is employed within the United States for purposes of the ADEA and Title VII, thecourt would review:

134Olvera-Morales v. Sterling Onions, Inc., 322 F.Supp.2d 211 (N.D.N.Y. 2004).135Id. at 220.136Id. at221. Unfortunately, the case was never heard on the merits. The case was transferred to the 4th Circuit,

where the US District Court of Middle North Carolina granted summary judgment for defendants because Olvera-Morales did not initially name them in her EEOC complaint. Olivera-Morales v. Intl Labor Mgmt. Corp., Inc.,2008 WL 939180 (M.D.N.C. Apr. 4, 2008).137Id. at 221.138Id.139 Olvera-Moraleas, 322 F.Supp.2d at 221 (citing Reyes-Gaona, 250 F.3d 861).140Id. at 221.141Gomez v. Honeywell Intl, Inc., 510 F. Supp. 2d 417, 421-3 (5th Cir. 2007).142Id. at 423 (citing Torrico v. IBM Corp., 213 F. Supp. 2d 390, 403-04 (S.D.N.Y. 2002)).


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1.) The site of the creation of the employment relationship, including wherethe terms of employment were negotiated;2.) The intent of the parties concerning the location of the employment;3.) The locations of the reporting relationships for the position at issue;4.) The actual locations where the employee performed duties and receivedbenefits, as well as the relative amount of time the employee spent at each ofthese sites; and5.) The location of employees domicile.143

The court further noted that these factors are not exclusive, and the court will consider thetotality of the circumstances of employment. The court will focus on the terms of employmentand the contacts the employee had with the United States by means of his/her employment.144

143Id.144Id.


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IV.CONCLUSIONTransnational litigation is a dynamic and ever changing field. This Manual is a survey of

some of the most salient issues that advocates representing migrant workers face every day when

representing their clients who have returned to their home countries. This is not acomprehensive survey but one that will spark a more thorough discussion of the issues. Withpractitioner input, this Manual will be tested, strengthened, expanded, and updated so thattransnational migrant workers will have access to justice no matter where they migrate afterworking in the United States. As advocates, we must rise to that challenge.


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Appendix A Page 31

ProgramsCase Facilitation

Global Workers Justice Alliance facilitates cases for low-wage migrant workers who have leftthe country of employment to return home. Practical and legal barriers usually result in migrantworkers being unable to recover wages or obtain medical care for work-related injuries after theyhave left the country of employment. Global Workers bridges that gap by connecting andsupporting advocates in the country of employment to the country of origin so that workers haveaccess to justice no matter where they go.

Advocate SupportGlobal Workers trains and certifies advocates in the migrant home countries to provide legalsupport to workers who have returned from laboring abroad. The trainings focus on theemployment-related and human trafficking laws of the countries of employment. The home

country advocates are then supported by Global Workers as they provide key assistance tolawyers offering legal representation to the workers who were exploited in the country ofemployment. In addition, Global Workers provides legal assistance to advocates facingchallenges specific to representing workers who have left the country. Support materials guidepractitioners to overcome the practical barriers to transnational representation of workers.Workshops will be held periodically to examine and address these challenges. In addition to thedomestic law focus, the promotion of international and regional law both in the domestic andinternat

Documents

Representing Absentee Migrant Workers in U.S. Courts (Global Workers Justice Alliance, 2008)