Genentech, Inc. et al v. Sanofi-Aventis Deutschland GMBH et al

Filing 103

FOURTH DISCOVERY ORDER. Signed by Magistrate Judge Bernard Zimmerman on 3/26/2009. (bzsec, COURT STAFF) (Filed on 3/26/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. SANOFI-AVENTIS DEUTSCHLAND GMBH, et al., Defendant(s). GENENTECH, INC., et al., Plaintiff(s), ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C08-4909 SI (BZ) FOURTH DISCOVERY ORDER

Having reviewed the authorities cited by the parties concerning the law regulating the taking of depositions in Germany, IT IS HEREBY ORDERED that the depositions of Dr. Menken, and the Rule 30(b)(6) deposition of Sanofi-Aventis Germany, occur on April 1, 2009, and April 2, 2009, respectively, in Frankfurt, at either the homes or places of business of the respective witnesses, where they have consented to be deposed. The parties' uncertainties on how to proceed with the German depositions stem partly from the inconsistent guidance given by the State Department and the United States Diplomatic Mission to Germany on their respective web sites. U.S.

Department of State, Bureau of Consular Affairs, Judicial Assistance Germany, 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

http://travel.state.gov/law/info/judicial/judicial_648.html (last visited March 26, 2009); United States Diplomatic Mission to Germany, U.S. Citizen Services in Germany, http://germany.usembassy.gov/acs/judicial-assistance.html (last visited March 26, 2009); see also In re Vitamin Antitrust Litigation, No. Misc. 99-197, 2001 WL 35814436 at *7-*8 (D.D.C. Sept. 11, 2001). However, I have read the diplomatic notes exchanged between Germany and the U.S. on this issue. See Exchange of Notes Between the United States of America and the Federal Republic of Germany, dated October 8, 1956 and February 1, 1980, T.I.A.S. No. 9938, 32 U.S.T. 4189, 1980 WL 309267. Those exchanges establish that a witness who consents to be deposed at the witness's home or place of business need not be deposed at the Consulate.1 Courts have recognized that the

Hague Convention is not necessarily the exclusive means of obtaining discovery. See e.g., Laker Airways Ltd. v. Pan

American World Airways, 103 F.R.D. 42, 51 (D.D.C. 1984). Dated: March 26, 2009 Bernard Zimmerman United States Magistrate Judge
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Specifically, in one of the diplomatic exchanges, Germany agrees to "visits by American investigating offers to non-Americans for the purpose of questioning within the meaning of the [previous agreement] at the latter's homes and places of business, provided the persons to be questioned expressly request questioning to be conducted at their homes or places of business, or expressly consent to this form of questioning." The Ministry of Foreign Affairs, Note Verbale, T.I.A.S. No. 9938, 32 U.S.T. 4181 (October 8, 1956). 2

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