Changing Times: Taking Depositions in Cuba

By Neal Price

It’s time to face facts – the geopolitical landscape is changing. From BREXIT to the election of Donald Trump as the 45^th President of the United States, both of which came as a shock to people around the world, it’s apparent, as we say in the South, that “times, they are a-changin’.” Another rather surprising political shake-up came in late 2014 as President Barack Obama and Cuban leader Raul Castro announced that the 50+ years of bilateral tensions would ease and that their “governments would restore full diplomatic ties.”[i] In the months following, the Cuban Embassy in Washington DC was reopened, and the U.S. Embassy in Havana was back in operation. Travel and trade restrictions began to relax with the first U.S. commercial airlines offering services to Cuba in more than 50 years. This thaw in relations, along with President Trump having recently taken office, has left us asking ourselves the questions – “Just what does this mean?  Where are we going from here?”

U.S. businesses such as Google[ii], Airbnb[iii], and Starwood Hotels & Resorts[iv] began investing heavily in new ventures in Cuba, and talks of the trade embargo being lifted are now floating around Havana and Washington. As is the case with any foreign venture, there will be disagreements, negligence, patent disputes, and the list keeps going, all of which leads to litigation. And lawsuits naturally lead to depositions – many times, hundreds at a time.

So, exactly how does a U.S. attorney go about deposing a witness in Cuba? Cuba isn’t party to The Hague Evidence Convention, nor is it a party to the Inter-American Convention, and without these Conventions, there is no real process in place for attorneys to enter Cuba and lawfully take depositions there.

If you find yourself needing to depose a Cuban citizen, your best bet at this point would be to reach out to the U.S. Embassy in Havana who will, in turn, reach out to the Ministry of Justice in Cuba to ask for permission. As is the case in many countries, the depositions could be required to take place in front of a Cuban judge, open to the public, or even through the means of written questions.

Only time will tell how this will all play out, but we can probably bet it will be a fascinating process to watch.

[i] Felter, Claire, Brianna Lee, James McBride, and Danielle Renwick. “U.S.-Cuba Relations.” Council on Foreign Relations. February 3, 2017. Accessed March 2, 2017. http://www.cfr.org/cuba/us-cuba-relations/p11113.

[ii] Nicas, Jack and Juan Forero. “Google Signs Deal With Cuba to Speed Services.” The Wall Street Journal. December 16, 2016. Accessed March 2, 2017. https://www.wsj.com/articles/google-signs-deal-with-cuba-to-speed-services-1481573940.

[iii] Griffith, Erin. “How Airbnb Pulled Off a Coup in Cuba.” Fortune. April 22, 2016. Accessed March 2, 2017. http://fortune.com/cuba-havana-airbnb/.

[iv] Trejos, Nancy. “Starwood: 1^st U.S. Company to run Cuba hotels in decades.” USA Today. March 21, 2016. Accessed March 2, 2017. http://www.usatoday.com/story/travel/roadwarriorvoices/2016/03/19/starwood-become-first-us-hotel-company-run-cuba-hotels-decades/82040434/.