Yowie North America, Inc. v. Candy Treasure, LLC et al

Filing 24

ORDER Requiring Video Taped Deposition of Plaintiff's Witness. Signed by Magistrate Judge Jan M. Adler on 11/6/2013.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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YOWIE NORTH AMERICA, INC.
and HENRY M. WHETSTONE, JR., )
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Plaintiffs,
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v.
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CANDY TREASURE, LLC and
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KEVIN GASS,
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Defendants.
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Case No. 13CV1906-BEN(JMA)
ORDER REQUIRING VIDEO
TAPED DEPOSITION OF
PLAINTIFF’S F.R.C.P. 30(b)(6)
WITNESS

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A discovery dispute exists arising from Defendants Candy Treasure,

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LLC’s and Kevin Gass’s (“Defendants”) Fed. R. Civ. P. 30(b)(6) Notice of

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Deposition of Plaintiff Yowie North America, Inc. (“Yowie”). Defendants

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seek to depose a representative of Yowie about Yowie’s sales and claims

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of irreparable injury in the United States in order to oppose Yowie’s

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pending Motion for Preliminary Injunction, which is scheduled to be heard

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on November 25, 2013. Defendant’s opposition to the motion is due

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November 12, 2013. Given the exigency of the need for the discovery

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sought, the Court has permitted the parties to forego the undersigned’s

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requirements for the handling of discovery disputes and instead permitted

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briefing in letter form. The parties’ letter briefs were submitted on

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November 1, 2013 and have been reviewed by the undersigned.

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The sole issue in dispute is whether Yowie’s corporate designee, who

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is located in Australia, should be ordered to travel to San Diego for the

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deposition. Yowie has agreed to make this individual available by video

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conference for deposition. Defendants contend the deponent should be

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compelled to travel to San Diego, because Australia is a signatory to the

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Hague Convention and requires a party to obtain governmental permission

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to take a deposition on Australian soil. Defendants’ Letter Brief, p. 2, citing

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to 7 Foreign Affairs Manual 920 (available at

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http://www.state.gov/documents/organization/86740.pdf).

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Defendants state governmental permission can not be obtained in sufficient

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time to timely oppose Yowie’s motion. Id.

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As explained in Schindler Elevator Corp. v. Otis Elevator Co., 657

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F.Supp. 2d 525 (D.N.J. 2009) “(t)he Hague Convention ‘prescribes certain

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procedures by which a judicial authority in one contracting nation may

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request evidence located in another nation.’ In re Automotive Refinishing

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Paint Antitrust Litig., 358 F.3d 288, 299 (3d Cir. 2004). The Convention is

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not mandatory and serves only as a permissive supplement to the Federal

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Rules of Civil Procedure. See Societe Nationale Industrielle Aerospatiale v.

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U.S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 536, 107 S. Ct.

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2542, 96 L. Ed. 2d 461 (1987). When discovery is sought from a foreign

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party, there is no rule of ‘first resort,’ compelling the discovering party to

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attempt to utilize the Convention's procedures before resorting to the

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Federal Rules. See Automotive Refinishing, 358 F.3d at 300. As such, the

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Federal Rules remain the ‘normal method[] for federal litigation involving

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foreign national parties’ unless the facts of a given case indicate ‘the

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'optional' or 'supplemental' Convention procedures prove to be conducive

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to discovery.’ Id. at 300 (quoting Societe Nationale, 482 U.S. at 536)

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(emphasis added). .... In order to compel application of the Hague
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Convention over the Federal Rules, the party seeking to apply the

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Convention procedures bears the burden to show that the "particular facts,

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sovereign interests, and likelihood [of resorting to Hague procedures] will

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prove effective." Id. at 300, 305. In evaluating whether to require resort to

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the Convention, courts should be mindful of ‘unnecessary, or unduly

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burdensome, discovery’ that may place foreign litigants in a

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disadvantageous position. Id.” Schindler Elevator Corp., 657 F.Supp. 2d

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528-529.

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Unlike Schindler Elevator Corp, this is not a situation in which a

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foreign party seeks to invoke the protections of the Hague Convention.

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Rather, Defendants argue the procedural requirements of the Hague

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Convention are so cumbersome, Yowie’s representative should be ordered

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to travel to San Diego. Although Defendants state they “are not aware of

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any lawful way to bypass this Hague Convention requirement,” they

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overlook that the Hague Convention is not mandatory and is only a

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permissive supplement to the Federal Rules of Civil Procedure. Defendants

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argue footnote 7 of Societe Nationale stands for the proposition that

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depositions of foreign nationals are different than document discovery and,

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therefore, require compliance with the Hague Convention. This argument,

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however, was expressly rejected in Schindler Elevator Corp., which

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curiously is a case that was brought to the Court’s attention by Defendants.

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As observed in Schindler Elevator Corp, “numerous courts -- both before

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and after Societe Nationale” -- have determined the analysis regarding

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written discovery as opposed to deposition discovery is the same and have

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ordered depositions of foreign parties occur in accordance with the Federal

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Rules. Id. at 529 (citations omitted).

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Fed. R. Civ. P. 29(a) allows parties to stipulate to a party deposition
taking place “at any time or place” without resorting to the Hague
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Convention. Furthermore, courts have routinely ordered depositions of

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individuals located in Australia be conducted by video conference, pursuant

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to the Federal Rules of Civil Procedure and without the need for the Hague

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Convention. U.S. v. Philip Morris, 2004 U.S. Dist. LEXIS 24551 (D.D.C.

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August 30, 2004) (video deposition ordered from Australia; UniSuper Ltd. v.

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News Corp., 2006 Del. Ch. LEXIS 31 (Del. Chanc. Feb. 9, 2006) (applying

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state rule modeled on the predecessor to Fed. R. Civ. P. 30(b)(4) (Fed. R.

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Civ. P. 30(b)(7)) to order video deposition from Australia); see also Baraz v.

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U.S., 181 F.R.D. 449, 452-453 (C.D. Cal. 1998) (telephonic deposition of

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Plaintiff; applying Societe Nationale); In re Global Power Equip., 418 B.R.

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883 at 41-43 (D. Del. 2009) (deposition in France ordered finding the

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Hague Convention is not mandatory even though France has a statute

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purporting to require Hague Convention compliance). Here, Yowie has

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agreed to make its representative available for deposition by video

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conference. There is no need, therefore, to utilize the Hague Convention to

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accomplish this deposition, as the Federal Rules of Civil Procedure

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sufficiently address this situation and will allow Defendants a full and fair

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opportunity to test Yowie’s assertions of irreparable injury.

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Based on the foregoing, the deposition of Yowie’s Fed. R. Civ. P.

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30(b)(6) witness shall proceed with the deponent participating by video

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conference.

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DATED: November 6, 2013

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Jan M. Adler
U.S. Magistrate Judge

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