Telesocial Inc. v. Orange S.A. et al

Filing 141

ORDER re Depositions of European Witnesses. Signed by Judge James Donato on 6/28/2016. (jdlc1S, COURT STAFF) (Filed on 6/28/2016)

Case 3:14-cv-03985-JD Document 141 Filed 06/28/16 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TELESOCIAL INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 14-cv-03985-JD
ORDER RE DEPOSITIONS OF
EUROPEAN WITNESSES

v.
ORANGE S.A., et al.,
Defendants.

Re: Dkt. Nos. 131, 135

The parties have hit a roadblock on the location of depositions for witnesses living in

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Europe and affiliated with defendant Orange. Dkt. Nos. 131, 135. Orange proposes Paris, France,

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where it is located and for proximity to the European-based witnesses. Telesocial requests New

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York City as a neutral half-way point for both parties and because it is concerned that Orange will

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try to exploit French law to avoid the production of testimony and other evidence.

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As an initial matter, Orange did not comply with Court’s standing order on discovery. The

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order requires the party initiating dispute resolution to certify in the first paragraph of its letter that

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the parties met and conferred in person, unless a distance exception applies. Orange was the

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initiating party and failed to do this. The Court advises the parties that failure to follow its

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standing orders will lead to summary denial of requested relief.

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Of more concern is Telesocial’s representation that Orange did not meet and confer with it

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prior to launching its letter. Dkt. No. 135 at 3. Facts solicited by the Court strongly suggest that

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Telesocial’s statements were exaggerated and possibly misleading. Orange detailed the steps it

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took to meet with Telesocial and Telesocial’s lack of response. The parties are advised that the

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Court will not tolerate shading of the facts or half-truths in any filing or communication.

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Sanctions may be imposed if there are further problems of this sort.

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Case 3:14-cv-03985-JD Document 141 Filed 06/28/16 Page 2 of 3

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On the merits of the dispute, the Court has broad discretion to set the location of

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depositions. See United States v. Cornejo-Reynoso, 621 F. App’x 495 (9th Cir. 2015) (quoting

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Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994)). Telesocial’s main objection to Paris

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is the concern that Orange will try to hide behind French law, such as the so-called “French

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Blocking Statute,” to avoid testimony or delay proceedings. The Court shares the concern because

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Orange has previously tried to assert French law as a reason for delayed or non-existent discovery

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responses in another context. See, e.g., Dkt. Nos. 67, 76. But the Court finds that these concerns

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do not warrant relocation of the depositions to the United States. This is because Orange has

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pledged, in response to the Court’s direct inquiries, that it will not assert or stand on any French
laws or procedural requirements to stymie the depositions. Specifically, Orange has agreed that it

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United States District Court
Northern District of California

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will not assert the Blocking Statute or any other French law as a basis for not appearing at a

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deposition or declining to answer a question or produce documents related to the deposition

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notice. It has also agreed that it will waive and forego in all respects any French procedural

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requirements for a Commissioner order, embassy involvement, Hague Convention formalities and

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all other similar steps. In effect, Orange agrees that the depositions will proceed as if taken in the

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United States and governed by the Federal Rules of Civil Procedure and Federal Rules of

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Evidence. Telesocial’s professed concern that it might be subject to liability of some sort because

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the French requirements are not waivable is poorly taken. Judge Conti of this court recently

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denied a similar objection by finding that the Blocking Statute, for example, does not subject

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parties to “‘a realistic risk of prosecution’” and that it was mainly for the benefit of French citizens

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“‘to provide them with tactical weapons and bargaining chips in foreign courts.’” In re CRT

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Antitrust Litigation, No. 07-5944, 2014 WL 5462496, at *6 (N.D. Cal. Oct. 23, 2014) (internal

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citations omitted). Any risk to Telesocial appears to be speculative and de minimis.

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That is enough to allay Telesocial’s concerns and override its objection. In addition,

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Orange has sweetened the result for Telesocial by agreeing to make available 16 witnesses in

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Paris, including several witnesses who are not parties to the lawsuit. That affords Telesocial

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significantly broader deposition discovery than would ordinarily be available to it in this cross-

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border litigation. Counsel for both sides have office locations in Paris, and the burden of counsel
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Case 3:14-cv-03985-JD Document 141 Filed 06/28/16 Page 3 of 3

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only traveling to the depositions is substantially lower than requiring witnesses to travel to New

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York City.

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The Court emphasizes, as it did during the conference with counsel, that Orange will be

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strictly held to its agreements about the rules and procedures for the depositions in Paris, and the

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appearance and cooperation of the 16 witnesses for examination. If there is any material deviation

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from these agreements, the Court will impose sanctions ranging from fee and cost shifting to

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evidence or defense preclusion, a directed verdict, or any other appropriate relief depending on the

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egregiousness of the conduct. More generally, evasion, delay or lack of cooperation by either

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party during the depositions will also be subject to similar sanctions.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: June 28, 2016

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JAMES DONATO
United States District Judge

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