Rule 72: Cross-border trial testimony in Israel
In one month the trial begins. The legal team is reviewing the evidence, preparing, cross-examination outlines, taking notes and developing a strategy. In the midst of these preparations, it becomes apparent that the testimony of a certain witness would greatly benefit the case. This witness happens to reside outside of Israel. The legal team contacts the potential witness. The to-be witness would be happy to assist, but can not travel to Israel for the trial.
Is this a lost cause?
Rule 72 of Israel's Civil Procedure Regulations authorizes a court to permit cross-border teleconferencing trial testimony if the following three conditions are satisfied:
the witness consents to provide the testimony and the court is convinced that the physical presence of the witness would cause great hardship;
the testimony is essential to the questions in dispute;
there is no impediment in the foreign state to hearing the testimony via videoconference within its jurisdiction.
Several trial courts have adjudicated motions under Rule 72 with varying results. A review of the many decisions issued in relation to Rule 72 is that the courts zealously apply Rule 72's conditions. Parties that fail to satisfy the three conditions can expect their Rule 72 motion to be denied.
This means that a party who wishes to file a Rule 72 motion should make sure that the existence of the three conditions is supported by proper evidence.
For example, in proving the first condition, the applicant would be prudent to file a affidavit/declaration of the potential witness describing in detail why the travel to Israel for the trial would "cause great hardship." As one court put it, COVID-19 is not a "magic word" and global traveling restrictions alone are not enough to satisfy the first condition.
Applicants should also not take lightly the third condition that prohibits cross-border trial testimony via videoconference if that method of testimony is prohibited in the foreign jurisdiction. This raises a question as to what the applicant needs to prove. The language of Rule 72 is a bit ambiguous. One possible interpretation is the applicant needs to prove that the foreign jurisdiction allows for videoconference trial testimony. An alternative interpretation is that the applicant needs to prove that the foreign jurisdiction allows for cross-border videoconference trial testimony. I have not seen any case law that addressed this matter.
To play it safe it may be best to supply the Israeli court with a declaration/opinion of an attorney licensed in the jurisdiction where the witness resides that would address both of the alternative interpretations above.