Deposing a party to the action or that party’s officers, directors, managing agents, or employees in a foreign nation is governed by CCP 2027.010.

Any party may obtain discovery by taking an oral deposition, as described in Section 2025.010, in a foreign nation. Except as modified in this section, the procedures for taking oral depositions in California set forth in Chapter 9 (commencing with Section 2025.010) apply to an oral deposition taken in a foreign nation. CCP § 2027.010(a). “On motion of the party seeking to take an oral deposition in a foreign nation, the court in which the action is pending shall issue a commission, letters rogatory, or a letter of request, if it determines that one is necessary or convenient.” CCP § 2027.010(e).

Section 2027.010(b) provides that “the service of the deposition notice is effective to compel the deponent to attend and to testify” at a deposition. If a foreign deponent “is a party to the action or an officer, director, managing agent, or employee of a party, the service of the deposition notice is effective to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2027.010(b); see also Code Civ. Proc. § 2025.280.) Alternatively, when the deponent is not a party or an employee of a party, section 2027.010(c) provides that the party serving the deposition notice “shall use any process and procedures required and available under the laws of the foreign nation where the deposition is to be taken to compel the deponent to attend and to testify” at the deposition.

To determine whether an individual is a managing agent for the purposes of Code Civ. Proc. §§ 2025.280, 2027.010, courts are to consider three factors: “(1) does the person exercise judgment and discretion in dealing with the party's matters; (2) can the person be expected to comply with the party's directive to appear; and (3) can the person be anticipated to identify himself or herself with the party's interests.” (Lopez v. Watchtower Bible & Tract Soc'y of New York, Inc. (2016) 246 Cal.App.4th 566, 602.)

A foreign resident cannot generally be required to appear in California for a deposition. (Code Civ. Proc. § 1989; Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1125; see Rutter Group, California Civil Proc. Before Trial, § 8:644 [“A defendant in a California lawsuit can be compelled to appear for deposition, or to permit depositions of its employees, in a foreign country...[and]...[i]f it fails to do so, it risks sanctions in the California lawsuit” citing Volkswagenwerk Aktiengesellschaft v. Sup. Ct. (Thomsen) (1981) 123 Cal.App.3d 840, 856-857.)

A deposition taken under this section shall be conducted under the supervision of any of the following:

1. A person who is authorized to administer oaths or their equivalent by the laws of the United States or of the foreign nation, and who is not otherwise disqualified under Section 2025.320 and subdivisions (b) to (f), inclusive, of Section 2025.340.
2. A person or officer appointed by commission or under letters rogatory.
3. Any person agreed to by all the parties.

(CCP § 2027.010(d).)

On motion of the party seeking to take an oral deposition in a foreign nation, the court in which the action is pending shall issue a commission, letters rogatory, or a letter of request, if it determines that one is necessary or convenient. The commission, letters rogatory, or letter of request may include any terms and directions that are just and appropriate. The deposition officer may be designated by name or by descriptive title in the deposition notice and in the commission.

But note, the judicial authority in the foreign country is always free to refuse to execute the letter of request. (Code Civ. Proc. §2027.010, subd. (c).)