Olem Shoe Corporation v. Washington Shoe Corporation

Filing 109

ORDER granting 88 Plaintiff's MOTION TO COMMISSION A PERSON BEFORE WHOM DEPOSITION UPON WRITTEN QUESTIONS MAY BE TAKEN filed by Olem Shoe Corporation. Signed by Magistrate Judge John J. O'Sullivan on 6/18/2010. (tro)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-23494-CIV-HUCK/O'SULLIVAN OLEM SHOE CORP., a Florida corporation, Plaintiff, v. W ASHINGTON SHOE CO., a Washington corporation, Defendant. _________________________/ ORDER THIS MATTER comes before the Court on the Plaintiff's Motion to Commission a Person Before Whom Deposition Upon Written Questions may be Taken (DE # 88, 5/17/10). The defendant argues that the Hague Convention Agreement between the United States and China prohibits the court from commissioning a person to take a deposition in China. The defendant further argues that normally the taking of such deposition would be permitted by Chapter II, Article 17 of the Hague Convention, but China has excluded itself from Chapter II, Article 17, and the United States has accepted China's reservation. The undersigned disagrees, and finds that Hague Convention is discretionary. The preamble of the Convention specifies its purpose `to facilitate the transmission and execution of Letters of Request' and to `improve mutual judicial co-operation in civil or commercial matters.' The preamble does not speak in mandatory terms which would purport to describe the procedures for all permissible transnational discovery and exclude all other existing practices. The text of the Evidence Convention itself does not modify the law of any contracting state to use the Convention procedures, either in requesting evidence or in responding to such requests, or compel any contracting state to change its own evidencegathering procedures. Societe Nationale v. U.S. Dist. Court, S.D. Iowa, 107 S.Ct. 2542, 2550-2551 (citations omitted). The Hague Convention is not mandatory. Id, at 2550. Accordingly, it is

ORDERED AND ADJUDGED that the Plaintiff's Motion to Commission a Person Before W hom Deposition Upon Written Questions may be Taken (DE # 88, 5/17/10) is GRANTED. The undersigned will issue a separate Order detailing the commission of the person before whom a deposition upon written questions may be taken. It is further ORDERED AND ADJUDGED that the defendant has the option of withdrawing its crossexamination questions and re-cross examination questions. DONE AND ORDERED, in Chambers, at Miami, Florida, this 18th day of June, 2010.

JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE Copies furnished to: United States District Judge Huck All Counsel of Record