Pinnacle Packaging Company, Inc. et al v. One Equity Partners LLC et al

Filing 173

OPINION AND ORDER by Magistrate Judge T Lane Wilson ; granting in part and denying in part 111 Motion for Protective Order (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
PINNACLE PACKAGING
COMPANY, INC.,
an Oklahoma corporation,
POLO ROAD LEASING, LLC,
an Oklahoma limited liability company,
and J. SCOTT DICKMAN,
Plaintiffs,
vs.
CONSTANTIA FLEXIBLES GmbH, an
Austrian corporation, and
ONE EQUITY PARTNERS (EUROPE)
GmbH,
Defendants.

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Case No. 12-CV-537-JED-TLW

OPINION AND ORDER
Before the Court is defendants’ Motion for Protective Order. (Dkt. 111). Defendants’
motion asks the Court to quash a deposition notice, which defendants state seeks the depositions
of Thomas Unger, Chief Executive Officer of defendant Constantia Flexibles GmbH, and the
depositions of corporate representatives of Constantia and defendant One Equity Partners.
Defendants state that the notice sets the location of the depositions in New York City.1 (Dkt. 111
at 1). Constantia and One Equity Partners have their principal places of business in Austria and
Germany, respectively, and Mr. Unger resides in Germany.
Defendants argue that before they can be required to produce their executives and/or
corporate representatives for depositions in the United States, plaintiff must show the presence of

1

Neither party attached a copy of the notice to their pleadings; however, plaintiffs do not dispute
that they served the notice or that the notice requires the attendance of Unger and the corporate
representatives as stated by defendants.

“. . . unusual circumstances that justify departure from the general rule that a deposition is to
occur where the witness resides – a rule recognized by courts as especially important for
witnesses residing outside of the U.S.” Id. Defendants also argue that any need for the requested
depositions to occur in the United States is a result of plaintiffs’ own lack of diligence. Id.
Plaintiffs respond that defendants have the burden to show the need for a protective order and
that defendants have failed to meet that burden. (Dkt. 116 at 8-9). In addition, plaintiffs argue
that the facts of this case and the law warrant requiring defendants’ corporate witnesses to appear
in New York City or, in the alternative, Miami, Florida, for their depositions. Id.
Factual Background
Constantia has four locations in the United States.2 (Dkt. 111 at 5-6). Through Jan
Homan, its Chairman of the Board of Supervisors, Constantia initiated contact with plaintiffs
regarding the business transaction that gives rise to this lawsuit.3 (Dkt. 119 at 5-7). Thomas
Unger, its CEO, took an extensive role in the negotiations that followed. Id. at 8-17. Unger, in
addition to his role at Constantia, is the Chief Executive Officer of a company named Global
Packaging USA Corporation, which is located in Miami, Florida.4 There is no dispute that
Constantia is an Austrian corporation with its principal place of business in Vienna, Austria and

2

Plaintiffs state that Constantia has five locations in the United States. (Dkt. 111 at 5-6).
Constantia actually has four locations in the United States and one location in Canada. See id.
3
The relevant time period appears to be May 2012 through August 2012. (Dkt. 119 at 5-7).
4
 Unger submitted a declaration in which he states that he is not an officer of Global Packaging
USA Corporation or any other U.S. corporation. (Dkt. 125-4). Notwithstanding these
representations, BloombergBusiness identifies Unger as the Chief Executive Officer of Global
Packaging USA Corporation:
http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=5674485
(last visited on December 13, 2015, but visited on numerous occasions since the Court’s hearing
on defendants’ motion). The same webpage identifies Global Packaging USA Corporation as
having its headquarters in Miami, Florida. Id. For purposes of this Opinion and Order, the Court
assumes that Unger is the current CEO of Global Packaging USA Corporation and that Global
Packaging has its headquarters in Miami, Florida.
2 

that Unger resides in Frankfurt, Germany. There is also no dispute that One Equity Partners is a
German corporation with its principal place of business in Frankfurt, Germany.
The Court takes judicial notice of the fact that the time difference between the Northern
District of Oklahoma and Germany and Austria is seven hours. Austria does not subscribe to the
Hague Convention, at least in so far as it would apply to this case. Germany does.
American Style Depositions in Germany and Austria
According to the United States Consulate Office in Germany, American style civil
litigation depositions may be taken in Germany. The following guidelines apply:
1.

The deposition must occur at the United States Consular General grounds
in Frankfurt, Germany and must be pre-approved by the German Ministry
of Justice. The United States Consul must administer all oaths.

2.

At least six weeks in advance of the deposition, the deposition notice must
be provided to the Consulate Office and must include the deponent’s
name, German address and phone number, a brief description of the case,
a proposed date for the deposition, and $1,283 for a scheduling fee. Once
this information is received, the Consulate will contact the German
government and request permission for the deposition to take place.

3.

On the day of the deposition, the Consulate must be paid $50 for each oath
administered, plus $309 for the first hour. If the Consular Officer is
required to remain longer, an additional fee of $241/hour applies. The
certification of the deposition is an additional $415.

4.

Additional information regarding the identity of the deposition participants
must be provided to the Consulate at least three days in advance of the
deposition.

http://photos.state.gov/libraries/frankfurt/1020130/spahncx/DEPOSITION%20INSTRUCTIONS
%202015.pdf (last visited December 6, 2015). This information is consistent with the affidavit of
Karin Geissl, an attorney for Constantia and One Equity Partners, who is admitted to practice
law in Germany and the State of California. She submitted a declaration, which states,
1.

There is a practice to allow for U.S.-style depositions in Germany with
regard to German nationals if the German Ministry of Justice is informed

3 

and approves the deposition in advance, which in her opinion it usually
does.
2.

The proper process for taking a deposition in Germany in cross-border
dispute is set out at the website of the Consulate General of the United
States in Frankfurt.

3.

In Geissl’s opinion, the use of a court reporter and videographer during
such deposition would be permissible, so long as all parties agree to it.
The U.S. Consulate General’s webpage specifically provides a list of court
reporters, videographers and interpreters for U.S.-style depositions in
Germany.

(Dkt. 125-3) (with some paraphrasing).
The United States Department of State, Bureau of Consular Affairs, provides the
following information regarding depositions in Austria:
Austria is not a party to the Hague Convention on the Taking of Evidence
Abroad in Civil and Commercial Matters. Although Article XVIII of the
Friendship, Commerce and Consular Rights Treaty and Supplementary
Agreement between the United States of America and Austria (1928, 1931)
included specific provisions about the taking of depositions of [sic] by
consular officers of nationals of their own country or permanent residents,
Austrian authorities have informed the U.S. Department of State and the U.S.
Embassy in Vienna that voluntary depositions of willing witnesses may not be
taken of Austrian citizens and that depositions of U.S. nationals or permanent
residents can only be taken with specific permission of the Ministry of
Foreign Affairs. Permission is not generally granted.
http://travel.state.gov/content/travel/en/legal-considerations/judicial/country/austria.html

(last

visited December 6, 2015) (emphasis added). This information somewhat contradicts the
affidavit of Bertram Bertscher, an attorney for Constantia and One Equity Partners, who is
admitted to practice law in Austria. (Dkt. 125-2). She submitted a declaration, which states,
1.

The direct taking of evidence by foreign courts in Austria may be
legitimate if prior permission of the Austrian Minister of Justice has been
obtained.

2.

The Austrian Minister of Justice usually approves requests for permission
for U.S. legal counsel to take evidence in Austria, including depositions, if
it is supported by U.S. courts and the evidence is voluntarily given.

4 

3.

The use of a court reporter and videographer during the deposition would
be permissible, so long as the parties agree to it.

(Dkt. 125-2) (with some paraphrasing). The Court chooses to rely on the information obtained
from the United States Department of State.
Christopher von Hugo
Although Christopher von Hugo is not identified by name in the notices (at least as
described by the parties), plaintiffs allege that he represented One Equity and, possibly,
Constantia, in the transaction that gives rise to this lawsuit and imply that he will be presented
for deposition in New York City if defendants’ Motion for Protective Order is denied. (Dkt.
116). Von Hugo was Vice Chairman of the Supervisory Board of Constantia from April, 2011 to
April, 2013, and Chairman of the Supervisory Board of Constantia from November, 2010 to
April, 2011, and from April, 2013 to March, 2015. Id.; (Dkt. 125-6). He is now employed by a
non-party and resides in Frankfurt, Germany. (Dkt. 125-6). As of July 21, 2015, he had not
travelled to the United States in the prior twelve months. Id.
One Equity admits that von Hugo “is the individual formerly affiliated with [One Equity]
who would have the most knowledge regarding the allegations in the Complaint.” (Dkt. 125-5).
This statement is ambiguous. It could mean that Mr. von Hugo has more knowledge regarding
the allegations in the Complaint than any current or former employee of One Equity, or it could
mean that of those no longer employed by One Equity, von Hugo has the most such knowledge.
Defendants themselves interpret this statement as meaning that he is “the only person affiliated
with [One Equity] claimed to have had involvement with the allegations in the Complaint. . ..”
(Dkt. 125 at 7). In any event, although plaintiffs imply that if the Court denies defendants’
motion, then defendants will bring von Hugo to the United States as a corporate representative,
he cannot be compelled to come to the United States by this Court because he is a non-party who

5 

resides outside the United States. Fed. R. Civ. P. 45(c). He also cannot be compelled to act as a
corporate representative for defendants. Fed. R. Civ. P. 30(b)(6) (notes of Advisory Committee
on Rules – 1970 Amendment).
Additionally, defendants imply that they will only be able to present the most
knowledgeable person for deposition if they are not required to bring a corporate representative
to the United States. Defendants seem to be saying that von Hugo will act as their corporate
representative if the depositions are in Germany and Austria. Based on the record before the
Court, however, the Court cannot conclude that von Hugo has made such a commitment,
irrespective of where the corporate depositions are held. Moreover, defendants are obligated to
produce

a

knowledgeable

corporate

representative,

Sprint

Communications

Co.

v.

Theglobe.com, Inc. 236 F.R.D. 524, 527-28 (D.Kan. 2006) (company has duty to make
conscientious and good faith effort to designate knowledgeable persons and to prepare those
persons to answer questions fully and unevasively), and defendants have cited no authority for
the proposition that if a former employee is willing to testify (which is not established here) as a
corporate representative at the corporation’s principal place of business, but is not willing to
travel to a foreign location, the Court should weigh that fact in favor of holding the deposition at
the principal place of business.
Based on the foregoing, facts related to von Hugo’s availability to appear for a deposition
in the United States, Germany, or Austria are not relevant to the Court’s inquiry here. Von
Hugo’s involvement and connection with the United States on behalf of defendants in the
transaction which gives rise to this lawsuit may, however, be relevant for the purpose of
determining whether either defendant should be required to produce a corporate witness in the
United States. This issue is addressed below.

6 

Analysis
It is clear that a foreign corporation, subject to the in personam jurisdiction of a federal
court, can be ordered under Federal Rule of Civil Procedure 30(b)(6) to produce its officers,
directors or managing agents in the United States to give deposition testimony. See, e.g., Work v.
Bier, 106 F.R.D. 45, 52 (D.D.C. 1985). In Bier, the plaintiff noticed the depositions of a number
of foreign defendants. Id. at 47. The depositions were scheduled to take place in the United
States Embassy in Bonn, West Germany. See id. The defendants moved to quash the plaintiff’s
deposition notice, arguing that the taking of depositions in Germany is a judicial function, not a
private one and that proceeding without the participation or consent of the officials of West
Germany violated the Hague Convention. See id. Plaintiff then noticed the deposition of three
defendants, previously noticed for West Germany, to take place in Washington D.C. See id. The
Court found that the Hague Convention applied to the taking of the depositions of the foreign
defendants in West Germany, even if the court could exercise in personam jurisdiction over
those defendants. See id. at 48-49. However, the court also determined that it could order that the
deposition be taken in the United States, in which case the Hague Convention would not apply.
See id. at 50-51. The Court adopts Bier as a correct statement of the law.
There is no dispute that the Court has personal jurisdiction over defendants. Thus, the
Court has authority to order defendants to produce their corporate witnesses in the United States
for depositions. The question is whether the Court will do so.
In 2012, the United States Bankruptcy Court for the District of South Carolina
summarized well the law applicable here:
[T]he Federal Rules of Civil Procedure [do not] specify where a deposition is
to take place. Rule 30 governs oral depositions and specifies that reasonable
written notice must be given to every other party and “must state the time and
place of the deposition.” Rule 30(b)(1). Rule 26(c), which governs motions for

7 

protective orders, states that a “court may, for good cause, issue an order to
protect a party or person from ... undue burden and or expense,” including
“specifying terms, including time and place, for the disclosure or discovery.”
Rule 26(c)(1)(B). Rules 30(b) and 26(c) act in concert, as “the examining
party may set the place for the deposition of another party wherever he or she
wishes subject to the power of the court to grant a protective order under Rule
26(c)(1)(B) designating a different place.” 8A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2112 (3d ed. 2012). Courts are
accordingly given broad discretion to manage discovery and make discovery
rulings. See United States v. Westinghouse Savannah River Co., 305 F.3d
284, 290 (4th Cir.2002) (“We afford substantial discretion to a district court in
managing discovery....”); Botkin v. Donegal Mut. Ins. Co., 2011 WL 2447939
at *8 (W.D.Va. June 15, 2011) (“Courts have broad discretion to determine
the appropriate location for a deposition.”) (citing Armsey v. Medshares
Mgmt. Servs., Inc., 184 F.R.D. 569, 571 (W.D.Va.1998)).
Generally, a plaintiff, by choosing the forum in which an action is brought,
will be required to make himself or herself available to be deposed in the
forum district. See In re Outsidewall Tire Litig., 267 F.R.D. 466, 471
(E.D.Va.2010); Wright & Miller, supra, § 2112 (“Ordinarily, plaintiff will be
required to make himself or herself available for examination in the district in
which suit was brought.”). On the other hand, “a non-resident defendant
ordinarily has no say in selecting a forum,” and thus “an individual
defendant’s preference for a situs for his or her deposition near his or her
place of residence—as opposed to the judicial district in which the action is
being litigated—is typically respected.” In re Outsidewall Tire Litig., 267
F.R.D. at 471; see also Wright & Miller, supra, § 2112 (“[C]ourts are more
willing to protect defendant from having to come to the forum for the taking
of his or her deposition than they are in the case of plaintiffs.”). The same
general rule that applies to depositions of individual defendants also applies to
corporations, in that a deposition of a defendant corporation through its
officers is to take place at the corporation’s principal place of business or
where the officers reside. Connell v. Biltmore Sec. Life Ins. Co., 41 F.R.D.
136, 137 (D.S.C.1966); Wright & Miller, supra, § 2112 (citing cases). These
general rules create “an initial presumption that a defendant should be
deposed in the district of his residence or principal place of business.”
Armsey, 184 F.R.D. at 571 (citing Turner v. Prudential Ins. Co. of Am., 119
F.R.D. 381, 383 (M.D.N.C.1988)); see also Farquhar v. Shelden, 116 F.R.D.
70, 72 (E.D.Mich.1987) (“[C]ourts have held that plaintiffs normally cannot
complain if they are required to take discovery at great distances from the
forum.”) (citing Work v. Bier, 107 F.R.D. 789, 792 (D.D.C.1985)).
In re Joseph Walker & Co., 472 B.R. 696, 700 (Bankr. D.S.C. 2012) (with slight modifications to
the citation format). Thus, the initial presumption is that the depositions of defendants’ corporate
representatives are to occur in Germany and Austria, where they have their principal places of
8 

business and where Unger resides. The next question is whether plaintiffs have overcome this
presumption.
In this regard, the court in Joseph Walker, uses language on which defendants rest most
of their argument:
To overcome the presumption that a defendant should be deposed where he or
she resides or at its principal place of business, circumstances must exist
“distinguishing the case from the ordinary run of civil cases.” In re
Outsidewall Tire Litig., 267 F.R.D. at 472 (citing Salter v. Upjohn Co., 593
F.2d 649, 651–52 (5th Cir.1979)). Moreover, “the plaintiff has the affirmative
burden of demonstrating ‘peculiar’ circumstances which compel the Court to
suspend the general rule” of holding depositions where defendants are located.
Sloniger v. Deja, No. 09–CV–858S, 2010 WL 5343184, at *4 (W.D.N.Y.
Dec. 20, 2010) (citation omitted).
Id. This language originates in the Fifth Circuit with Salter v. Upjohn (cited by Joseph Walker
above), a case in which the court upheld a district court decision to prohibit the deposition of the
defendant’s president in the forum district. Salter, 593 F.2d at 651-52. The Court has found no
negative treatment of the Fifth Circuit’s conclusion and has found a number of cases that cite it
favorably.5 These cases include: In re Outsidewall Tire Litigation, 267 F.R.D. 466, 472 (E.D. Va.
2010) (“To be sure, this presumption may be overcome, but only where circumstances exist
distinguishing the case from the ordinary run of civil cases.”); Tailift USA, Inc. v. Tailift Co.,
Ltd., 2004 WL 722244 *1 (N.D.Tex. 2014) (can overcome presumption by showing “peculiar”
circumstances)6; and, Zuckert v. Berkliff Corporation, 6 F.R.D. 161, 161 (N.D. Ill. 1982) (“If a

5

Although Westlaw identifies a handful of cases purporting to treat Salter negatively on this
issue, the Court’s review of those cases revealed nothing that contradicted or disagreed with
Salter on this point.
6
  The district court, in Taillift, went so far as to find that the presumption alone satisfies the
“good cause” requirement contained in Rule 26. Tailift USA, Inc. v. Tailift Co., Ltd., 2004 WL
722244 *2 (N.D.Tex. 2014) (“Courts have determined that this presumption satisfies the Rule
26(c) requirement of good cause.”) (citing Chris–Craft Indust. Prod., Inc. v. Kuraray Co., Ltd.,
184 F.R.D. 605, 607 (N.D.Ill.1999)). No other court seems to have adopted such a clear rule,
notwithstanding the court’s use of the phrase, “Courts have determined.” 
9 

corporation objects to depositions at a location other than its principal place of business, the
objection should be sustained unless there are unusual circumstances which justify such an
inconvenience to the corporation.”) (citing Grey v. Continental Marketing Associates, 315 F.
Supp. 826, 832 (N.D.Ga.1970)).
Plaintiffs, on the other hand, argue that the burden is on defendants to show good cause
for the issuance of a protective order. Plaintiffs cite Sentry v. Shivers, 164 F.R.D. 255 (D.Kan.
1996). In Sentry, the defendant sought a protective order to prevent the plaintiff insurance
company from deposing him because he had already provided plaintiff with an examination
under oath. Id. at 256-67. The Court found that such an examination did not constitute a
“deposition,” and, therefore, the defendant had failed to show good cause. The issues in Sentry
were too dissimilar to be helpful here, where defendants seek the application of a generally
accepted rule regarding the location of corporate depositions.
Next, plaintiffs cite Gulf Oil Co. v. Bernard, 452 U.S. 89, 102, n.16, 101 S.Ct. 2193, 68
L.Ed. 693 (1981). In Gulf Oil, the Supreme Court considered whether the parties, in a class
action lawsuit, should be prohibited from contacting potential class members. The Supreme
Court reasoned that,
an order limiting communications between parties and potential class
members should be based on a clear record and specific findings that reflect a
weighing of the need for a limitation and the potential interference with the
rights of the parties. Only such a determination can ensure that the court is
furthering, rather than hindering, the policies embodied in the Federal Rules
of Civil Procedure, especially Rule 23.
Id. at 2200-01. It was in this context that the Supreme Court footnoted a D.C. Circuit case which
quoted Wright and Miller for the proposition that to establish good cause for a protective order
“[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.” Id. at n.16. For the same reason that Sentry is

10 

unhelpful, so is Gulf Oil. Moreover, defendants have done more than make stereotyped and
conclusory statements and for this additional reason, Gulf Oil is not helpful.
Plaintiffs rely on In re Honda America Motor Co., 168 F.R.D. 535 (D. Md. 1996), as a
case that addresses the issue presently before the Court. In Honda, the defendant sought a
protective order preventing the plaintiff from deposing its corporate representatives in the United
States. Id. at 537. The defendant argued that international comity required the court, in its
discretion, to order the depositions to be held in Japan and to be governed by Japanese discovery
rules and procedure. Id. In fact, the defendant argued that the depositions should occur in Japan
precisely because doing so would prevent the plaintiff from conducting a U.S. style deposition:
Honda Japan points out that Japan generally disdains the United States’
system of open discovery and compulsory depositions. As evidence, Honda
refers to the Japanese system which requires judicial officers to conduct pretrial questioning of witnesses. It also notes that Japan has refused to sign the
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters, 23 U.S.T. 2555, and has restricted discovery within its territory
pursuant to the Consular Convention and Protocol, 15 T.I.A.S. 768, 795, to
voluntary depositions only. Second, Honda asserts that Japanese nationals
would consider a compulsory deposition in the United States deeply offensive
and embarrassing, and a violation of their cultural and social norms.
Id. at 537-38. The court rejected the argument for two reasons. First, the court determined that
Japanese sovereignty was not implicated by holding corporate depositions of deponents who
frequently travel to the U.S. on U.S. soil. Second, requiring the depositions to be held in Japan
would infringe on American sovereignty because the lawsuit involved the United States’ antitrust
laws, laws that have long been viewed as cornerstones of American economic policy, and
because it would be unfair to constrain the plaintiffs to obtaining discovery under Japan’s
restrictive procedures while at the same time giving the defendant “free reign” under the Federal
Rules of Civil Procedure. Id. at 539. The court also relied on the fact that the travel costs would
be far less if the depositions were held in the United States and the delay would be far more if the

11 

depositions were held in Japan. Id. at 540. In short, although the court did not use the same
language as Salter, it clearly found particular circumstances that differentiated the case from the
ordinary run of the mill case where a plaintiff wants to depose a corporate witness away from the
corporation’s principal place of business. Moreover, unlike in Honda, defendants are not trying
to avoid a U.S. style deposition; they are simply attempting to avoid travelling to the United
States for the deposition. Thus, the arguments considered by the Court in Honda were very
different than those made by defendants and, as a result, the reasoning in Honda is not helpful to
plaintiffs here.
Plaintiffs also complain that defendants have failed to cite any Tenth Circuit law, arguing
that defendants rely solely on Joseph Walker. As the Court has discussed, the proposition urged
by defendants is accepted by many federal courts, has not been specifically rejected by any, and
has application here. In fact, in all of the cases cited by plaintiffs, and those reviewed by the
Court, in which a corporate defendant was required to produce a corporate witness away from its
principal place of business, whether or not the deciding court used the language of Salter,
unusual circumstances were present that caused the court to depart from the presumption (which
is really more of a general rule than a presumption). Thus, the Court finds that the Tenth Circuit
would likely adopt the statements of the law in Joseph Walker.
To summarize, the Court finds that determining the location of the deposition of a
corporate witness is a fact intensive inquiry that begins with the general rule that the deposition
is to occur in the forum where the defendant has its principal place of business and ends with an
analysis of a number of factors to determine whether the necessary facts exist to distinguish the
case from the “ordinary run of civil cases” such that “peculiar circumstances” exist to compel the
Court to suspend the general rule. Factors considered by courts in conducting this analysis

12 

include: the location of counsel for the parties, the number of corporate representatives to be
deposed, the likelihood of significant discovery disputes and the Court’s ability to resolve those
disputes, whether the persons to be deposed often travel for business purposes, a balancing of the
equities, issues of comity/Federal Rule of Civil Procedure 28(b), and the relative costs of the
depositions. See Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 629 (C.D. Cal. 2005) (citing
Armsey v. Medshares Mgmt. Servs., 184 F.R.D. 569, 571 (W.D.Va.1998); Resolution Trust
Corp. v. Worldwide Ins. Management Corp., 147 F.R.D. 125, 127 (N.D.Tex.1992)); S.E.C. v.
Banc de Binary, 2014 WL 1030862 (D.Nev. March 14, 2014) (unpublished).
Location of Counsel for the Parties
This factor is less relevant to the analysis in this case because plaintiffs seek to hold the
depositions in New York City, which is not in this forum. (Dkt. 116). However, lead counsel for
defendants is located in New York City, so plaintiffs’ chosen location would be more convenient
for defendants’ counsel than the forum or defendants’ principal places of business. This factor
weighs slightly in favor of having the depositions in New York City.
Number of Corporate Representatives to be Deposed
Plaintiffs seek to take the depositions of Unger and a corporate representative from each
defendant. (Dkt. 111, 116). At the hearing, the parties acknowledged that the number of topics to
be addressed in the Rule 30(b)(6) depositions had not yet been finalized. (Dkt. 134, Hearing on
Motion, Laurence Pinkerton and John Russell). As part of the discovery process, plaintiffs
identified thirty-six topics, and the parties agreed to defer discussions of those topics until the
question of the location of the depositions is resolved. Id. Counsel for defendants advised the
Court that until the parties reach agreement on the topics, defendants could not determine how
many witnesses would be necessary. (Dkt. 134, Hearing on Motion, John Russell and Cheryl

13 

Howard). This agreement does not assist defendants’ position on their motion because the
evidence before the Court establishes only that there will be three depositions (Unger and a
representative for each defendant). The Court will not speculate regarding the number of
additional corporate witnesses that defendants may present. Bringing three corporate
representatives to the United States is not overly burdensome for defendants, which have
significant contacts with and business in the United States. Nonetheless, this factor does not
present any unusual or peculiar circumstances that weigh against applying the general rule.
The Likelihood of Significant Disputes Arising During the Depositions and the
Court’s Ability to Resolve those Disputes.
A Scheduling Order was entered in January 2015 and an Amended Scheduling Order in
March 2015. (Dkt. 93, 98). The Court has resolved three motions to compel since (dkt. 101, 103,
114, 147). Plaintiffs contend that the results of the previous motions to compel demonstrate that
defendants are not willing to comply fully with the rules of discovery. At the hearing, defendants
argued that discovery disputes during the Rule 30(b)(6) depositions are unlikely based on the
parties’ recent completion of the deposition of plaintiff J. Scott Dickman without any disputes.
(Dkt. 134, Hearing on Motion, John Russell). Of course, depositions of corporate representatives
tend to be more contentious because a representative’s answers are binding on the corporation.
Nonetheless, based on the Court’s experience with the parties and knowledge of its counsel, the
Court believes the parties will successfully resolve any disputes that do occur, whether the
depositions take place in the United States or Europe.
As to the Court’s ability to resolve any discovery disputes, the seven-hour time difference
certainly presents some difficulty when compared to the one-hour time difference of New York
City. However, the Court is not opposed to making itself available on the afternoon of each

14 

deposition (the morning in the United States) to resolve any disputes that have arisen during the
day.
Accordingly, the Court finds that this factor does not present any peculiar circumstance
weighing in favor conducting the depositions in New York City.
Whether the Persons to be Deposed Often Engage in Travel for Business Purposes
Both Cadent and Banc de Binary interpret this factor as a requirement that the Court
determine whether the deponents travel to the proposed location of the depositions, rather than a
general determination of whether the deponents travel for business generally. See Cadent, 232
F.R.D. at 630 (citing Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 382 (M.D.N.C.
1988)); Banc de Binary, 2014 WL 1030862 at *7. Both courts considered whether the parties
“reached into the forum to conduct business.” Banc de Binary, 2014 WL 1030862 at *7 (citation
omitted).
Mr. Unger submitted a declaration in which he states that he does not, as of July 21,
2015, have any trips planned to the United States for the remainder of 2015. (Dkt. 125-4). Mr.
Unger also states that he does not frequently visit Constantia’s American subsidiaries and that
“there is a separate executive board member for the North American entities.” Id.
The Third Amended Complaint contains a detailed account of the allegations that form
the lawsuit, including the time and place of meetings between the parties. (Dkt. 119). In the
Third Amended Complaint, plaintiffs allege that Unger traveled to the United States only once as
part of the negotiations. Id. That meeting took place in Houston, Texas, because it was
convenient to the parties, including Unger, who was traveling from Mexico. Id. All of Mr.
Unger’s other contacts with plaintiffs occurred over the telephone or through written
correspondence. Id. Accordingly, plaintiffs have not established that Unger frequently travels to

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New York City for business.
Plaintiffs have established, however, that Unger is the CEO of Global Packaging USA
Corporation in Miami, Florida. That company appears to be unaffiliated with the defendants in
this case and, without more (particularly in light of Unger’s declaration), is not sufficient to
establish that Mr. Unger travels to Miami, Florida, or New York City to conduct business.
There is no evidence that any person who would be designated a corporate representative
for Constantia regularly travels to the United States. For the Constantia Rule 30(b)(6)
deposition(s), then, this factor does not present any peculiar circumstance weighing in favor of
conducting the deposition(s) in New York.
Dunja Mauser, One Equity Partner’s Office Manager, submitted a declaration in which
she states that One Equity Partners does not have any employees in the United States and that if
depositions were ordered to take place in the United States, a One Equity Partners employee
based in Frankfurt, Germany would need to travel for the deposition. (Dkt. 125-5). She further
states that Christopher von Hugo is a former One Equity Partner Europe employee who currently
lives and works in Frankfurt, Germany. Id. Von Hugo also submitted a declaration stating that he
lives and works in Frankfurt, Germany, and currently has no plans to visit the United States.
(Dkt. 125-6). The Third Amended Complaint states that von Hugo came to the United States
once during the course of events that form the basis of the litigation. (Dkt. 119). He visited
Oracle’s facility in Winston-Salem, North Carolina. Id. All other contacts and negotiations were
conducted either by telephone or written correspondence. Id. This factor does not present any
peculiar circumstance weighing in favor of conducting the One Equity deposition(s) in New
York City.

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Balance of Equities
This factor requires the Court to consider “the equities with regard to the nature of the
claim and the parties’ relationship.” Cadent, 232 F.R.D. at 629. In Banc de Binary, the district
court found that the equities favored holding the depositions in the United States because the
defendant, a foreign corporation, had advertised itself as a United States-based corporation. See
Banc de Binary, 2014 WL 1030862 at *7-8. The court concluded that the defendant was
equitably estopped from claiming the right to hold the depositions in its home country after
claiming the opposite to its investors. See id.
In this case, defendants have made no such representations. As defendants’ counsel
correctly pointed out at the hearing, plaintiffs have always known that defendants are foreign
corporations. (Dkt. 134, Hearing on Motion, Cheryl Howard). In fact, plaintiffs contemplated
early on in the litigation that depositions would be held in Germany and Austria. On April 2,
2015, plaintiffs’ counsel emailed defendants’ counsel stating,
I do not think it is too early to begin to set depositions of key witnesses in this
case, because at present we expect certain of them will have to be in Europe,
though advice from you may affect that and affect scheduling. In addition, it
appears there will be a lengthy delay on documents. The individuals whom we
expect to depose between August 1 and September 11 are: Richard Kelsey,
Christopher von Hugo, Thomas Unger, and Jan Homan. If there is a required
trip to Europe, I presume that we will schedule all of these individuals
seriatim though there may be travel between Frankfurt and Vienna. Please
promptly advise concerning these matters so that an agreement can be reached
that will allow the Defendants plenty of time to arrange their schedules.
(Dkt. 111-1).
As of April 9, 2015, defendants had not provided the addresses of their potential foreign
witnesses. (Dkt. 116-1 at 30). However, defendants did provide the city of residence for these
witnesses. On April 21, 2015, defendants agreed to accept deposition notices for Constantia’s
current employees. Defendants confirmed this agreement by email on April 23, 2015, an email in

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which they provided addresses as requested:
As discussed on our call on Tuesday, and in the spirit of cooperation, below
please find the telephone numbers and addresses for the Constantia witnesses
in Europe that were listed on our Initial Disclosures, as well as Christopher
von Hugo, all of whom we represent. . .. [W]e can accept deposition notices
for the Constantia individuals listed below, although our agreement to accept
the deposition notices does not affect any foreign law requirements for taking
a deposition in Austria with which Plaintiffs must comply.
(Dkt. 125-1 at 5).
On May 22, 2015, defendants provided the dates of birth of their foreign witnesses. (Dkt.
116-1 at 31.) On June 5, 2015, plaintiffs informed defendants that they intended to notice the
depositions at issue here for New York City. Id. On June 12, 2015, plaintiffs served notices for
the deposition of Unger and a corporate representative of One Equity. Id. at 32. On June 15,
2015, plaintiffs served notices for the deposition of Constantia’s corporate representative. Id. On
June 18, 2015, defendants agreed to waive service of deposition notices on their foreign
witnesses who are currently employed by defendants. (Dkt. 111).
These facts do not demonstrate that defendants have taken contrary positions outside and
inside the litigation with respect to their contacts with the United States. In addition, the facts
demonstrate that defendants are cooperating with plaintiffs to ensure that any burden or delay in
the depositions is due to the procedures required by the foreign countries themselves and not due
to any actions by defendants. Accordingly, this factor does not present any peculiar
circumstances that weigh in favor of holding the depositions in New York City.
Issues of Comity/Federal Rule of Civil Procedure 28(b)
When depositions for cases filed in the United States are held in foreign countries, the
parties must be sure to comply with the requirements of those countries or risk offending the
sovereignty of those nations. See Banc de Binary, 2014 WL 1030862 at *4. “If a federal court

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compels discovery on foreign soil, foreign judicial sovereignty may be infringed, but when
depositions of foreign nationals are taken on American or neutral soil, courts have concluded that
comity concerns are not implicated.” In re Honda American Motor Co., Inc. Dealership
Relations Litigation, 168 F.R.D. 535, 538 (D.Md. 1996) (citing In re Anschuetz & Co., 754 F.2d
602, 608 n. 13 (5th Cir. 1985)). See also Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D.
333, 336 (N.D.Ind. 2000) (same).
Federal Rule of Civil Procedure 28(b) provides, in pertinent part, that
(1) In General. A deposition may be taken in a foreign country:
(A) under an applicable treaty or convention;
(B) under a letter of request, whether or not captioned a “letter rogatory”;
(C) on notice, before a person authorized to administer oaths either by federal
law or by the law in the place of examination; or
(D) before a person commissioned by the court to administer any necessary
oath and take testimony.
Fed. R. Civ. P. 28(b)(1). The evidence before the Court indicates that Germany is amenable to
depositions that conform to the requirements of Rule 28(b). The evidence indicates that Austria
is not.
As to Austria, a number of the cases cited by plaintiffs touch this issue. In Schindler
Elevator Corp. v. Otis Elevator Co., 657 F.Supp.2d 525 (D.N.J. 2009), the District of New Jersey
considered whether “. . . a party seeking to take a deposition of a Swiss corporate defendant must
comply with the Hague Convention or may it simply follow the Federal Rules of Civil
Procedure.” Id. at 527. The court noted that “[i]n order to compel application of the Hague
Convention over the Federal Rules, the party seeking to apply the Convention procedures bears
the burden to show that the ‘particular facts, sovereign interests, and likelihood [of resorting to
Hague procedures] will prove effective.’” Id. at 528-29. Although many of the factors considered

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by the court are not applicable here, before the Court will require plaintiffs to pursue depositions
in Germany or Austria, it must be convinced that doing so will likely prove fruitful. The Court is
convinced that plaintiff will be able to obtain depositions of One Equity’s corporate witnesses
and Unger in Germany. The guidance provided by the United States’ State Department indicates
that such efforts in Austria are not likely to be fruitful.
Likewise, in Triple Crown America, Inc. v. Biosynth AG, 1998 WL 227886 (E.D. Penn.
April 30, 1998) (unpublished), the district court considered, inter alia, whether the deposition of
a Swiss corporate defendant should occur in the forum or in Switzerland. In finding that the
deposition should occur in the forum, the court reasoned:
[I]t appears that it would be difficult if not impossible for plaintiff to secure
depositions of Biosynth AG in Switzerland in a manner as prompt, efficient
and effective as that contemplated by the Federal Rules of Civil Procedure.
The United States has an “overriding interest” in promoting the prompt and
efficient resolution of litigation in its courts. Plaintiff represents and defendant
does not dispute that Swiss law places substantial restrictions on the conduct
of discovery, including criminal sanctions against an attorney who attempts to
take sworn discovery in that country for use in foreign litigation even from a
consenting party.
Id. at *3.
As to Germany, in light of the travel time involved for executives of One Equity and
Unger, conducting their depositions in New York City will not be substantially more efficient or
prompt than doing so in Germany, and conducting the depositions in Germany will be as
effective. The same cannot be said of Austria, which disfavors such depositions in the first
instance and does not generally grant requests for United States-style depositions. As a result,
obtaining depositions in Austria will almost certainly be substantially less efficient than
conducting those depositions in New York City. Moreover, the fact that Austria disfavors such
depositions and does not generally grant permission for them to be conducted means that they

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may not occur at all.  
This factor presents peculiar circumstances that weigh heavily in favor of conducting
Constantia’s deposition(s) in New York City. It does not present such circumstances with regard
to One Equity and Unger.
Cost of Depositions/Federal Rule of Civil Procedure 1
Wright and Miller provides that in assessing the location of a deposition, “[a]n important
question in determining where to hold the examination is the matter of expense.” Charles Allen
Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 2112
at 84 (1994 rev.) (footnotes omitted). Additionally, Federal Rule of Civil Procedure 1 defines the
purpose and scope of the rules and provides that the rules “should be construed, administered,
and employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ. P. 1.
Plaintiffs contend that taking a deposition in Austria will require a letter rogatory, which
they believe will cost $2,325.00 in fees, plus the cost of an interpreter for the deposition, and
transcript translation costs of $60-$85/page. (Dkt. 116-1). With respect to the process of taking a
deposition in Germany, plaintiffs rely on documents from the American Consulate General
indicating that there is a $1,283.00 scheduling fee, a $50.00 oath fee, a $309.00 fee for the first
hour of the deposition and $231.00/hour for each hour thereafter in which a Consular Officer is
needed, and a $415.00 fee for providing the seal and certification along with additional fees for
an interpreter, court reporter, and transcript interpreter. Id. The scheduling fee in Germany must
be paid at least six weeks in advance of the deposition; any change in schedule results in an
additional fee of the same amount, and the deposition date is not entirely within the parties’
control. Id.

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Thus, if the depositions are held in New York City, plaintiffs’ counsel will be required to
travel approximately 1,400 hundred miles from Tulsa, defendants’ counsel will not be required
to travel at all, and three corporate representatives will be required to travel approximately 4,000
miles from Germany and/or Austria for a total of 13,400 miles of travel. If the depositions were
to occur in Europe, plaintiffs’ counsel would travel approximately 5,000 miles and defendants’
counsel would travel approximately 4,000 miles, with an additional 350 miles between Germany
and Austria for a total of 9,700 miles of travel. Weighing in defendants’ favor, however, is the
fact that they will not only incur direct out-of-pocket costs associated with sending employees to
the United States, they will also incur indirect costs resulting from unplanned travel to the United
States and time out of the office.
Given the information provided by the parties, the Court is unable to determine whether
the total cost of conducting the noticed depositions is greater if the depositions are conducted in
Germany and Austria or greater if the depositions are conducted in the United States. Travel
costs and the number of witnesses and lawyers will be determinative. The Court is able to
determine; however, that the cost to plaintiffs is greater if the depositions are conducted in
Europe and the cost to defendants is greater if the depositions are conducted in the United States.
However, if the Court were to hold that the depositions should take place in New York City, the
Court has the discretion to order plaintiffs to bear the costs of defendants’ travel. See Banc de
Binary, 2014 WL 1030862 at *10.
However, if Constantia’s deposition(s) is conducted in New York, some travel time in
Europe will be reduced, but Constantia will be required to send one or more corporate
representatives to New York. Defendant has counsel in New York, and the Court assumes the
deposition would be scheduled either on the way to, or back from, the depositions in Germany.

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Thus, the added travel time and expense for counsel is nominal.
On balance, this factor does not present any peculiar circumstances that weigh in favor of
conducting the depositions in New York City. This conclusion is due in part to defendants’
representation that they will have only one American lawyer attend the depositions on their
behalf.
CONCLUSION
As to One Equity and Unger, the Court finds no peculiar circumstances that warrant
departure from the general rule. Thus, One Equity’s and Unger’s Motion for Protective order is
GRANTED. As to Constantia, the Court finds that any effort by plaintiffs to obtain a deposition
that complies with the Federal Rules of Civil Procedure in Austria is likely to be unsuccessful
and/or fraught with delay and unnecessary expense. At a minimum, peculiar circumstances are
present which warrant departure from the general rule. Constantia’s Motion for Protective Order
is, therefore, DENIED.
The parties are directed to work cooperatively to obtain the depositions of Unger and the
corporate representatives of One Equity and Constantia in a manner which results in the least
expense to all parties. In addition, if either party requests that the Court be available to resolve
disputes during the corporate depositions, the parties shall provide the Court with the date and
time of each deposition as soon as it is known. Defendants shall bear the burden and expense of
making the necessary arrangements for a telephone hearing with regard to the European
depositions, and plaintiff shall bear such burden and expense for the New York City depositions.
Any conference call between the Court and the parties will occur at or after 8 a.m. in the Central
Time Zone.

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SO ORDERED this 17th day of December, 2015.

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