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Magistrate Judge Thynge: Decision regarding a party’s obligation to produce witnesses of its foreign affiliate for depositions

Magistrate Judge Thynge recently addressed whether a party is required to produce witnesses for depositions who are employees of its foreign subsidiary, or whether the party should seek that information pursuant to the Hague Convention. Ethypharm S.A. France v. Abbott Laboratories, C.A. No. 08-126-SLR-MPT (D. Del. Nov. 15, 2010). Plaintiff argued that defendant should produce the witnesses to testify because defendant had “control” over information possessed by its wholly-owned subsidiaries. Id. at 5. Specifically, defendant “has the legal right to obtain discoverable information at issue as a result of its acquisition of [the foreign subsidiary] and must produce information sought by [plaintiff] under the Federal Rules of Civil Procedure, rather than requiring [plaintiff] to seek that information pursuant to the Hague Convention.” Id. at 6. Defendant responded that the real issue is that procedures for compelling depositions under the Federal Rules or the Hague Convention cannot be invoked. Id. Specifically, the “foreign nationals at issue are not asserted to be subject to the subpoena power of United States courts, have not been served with deposition subpoenas, and are not asserted by [plaintiff] to be officers, directors, or managing agents of any party to this action.” Id.

Judge Thynge denied plaintiff’s motion to compel defendant to produce employees of its overseas affiliate for depositions. The court agreed with another district court that “Rule 30 of the Federal Rules of Civil Procedure does not require a party to litigation to produce persons for deposition who are merely alleged to be in the party’s control. Rather, a party or any other person can be noticed for deposition, and subpoenaed if necessary. If the person sought for deposition is not within the subpoena power of a United States Court, then procedures according to international treaty must be followed.” Id. at 18 (internal quotation omitted).

Ethypharm S.A. France v. Abbott Laboratories, C.A. No. 08-126-SLR-MPT (D. Del. Nov. 15, 2010)

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