Digest for January 31, 2011

Gucci America v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010). In a trademark infringement case, the plaintiff, an American affiliate of an Italian manufacturer, sought a protective order to prevent disclosures of communications between its in-house counsel and the Italian firm’s counsel. The court held that U.S. law rather than Italian law governed the issue under the “touch base” approach used in prior S.D.N.Y. cases. The opinion also has a discussion of the limitations of document discovery under the Italian civil code.

Ethypharm S.A. France v. Abbott Labs., 271 F.R.D. 82 (D. Del. 2010). In an antitrust case brought by a French pharmaceutical company against a U.S. firm, the French firm sought to take depositions, including a Rule 30(b)(6) deposition, from employees of a French subsidiary of the U.S. defendant under the Federal Rules of Civil Procedure rather than via the Hague Evidence Convention. The plaintiff argued that the defendant’s control over the French subsidiary warranted subjecting the subsidiary to ordinary U.S. pretrial discovery. The defendant argued that even if discovery under the Rules of Civil Procedure was proper, the witnesses the plaintiff sought to depose were not subject to the court’s subpoena power and were not employees of the defendant itself, so as to require the defendant to produce them for deposition pursuant to a mere notice. The court agreed that the individual witnesses were not subject to its subpoena power and thus that it could not compel them to testify pursuant to the Rules of Civil Procedure. But it permitted the plaintiff to take a Rule 30(b)(6) deposition of the French subsidiary by notice.

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