I don’t like the plaintiffs’ style in the Case of the Day, Peiker Acustic, Inc. v. Kennedy (D. Colo. 2011). Peiker, a German firm, sued Kennedy in the Circuit Court for Oakland County, Michigan, for defamation. Kennedy did not reside in Michigan, but Peiker had a place of business there. Kennedy removed the case to the District Court, and it was later transferred to the District Court in Colorado. When Kennedy sought to take the depositions of two Peiker executives, Andreas Peiker and Dr. Algilolf Lamperstorfer (both had sufficient knowledge of the facts surrounding the claim that there was no real issue about whether it was proper to take their depositions), the executives asserted that their depositions had to be taken in Germany. What’s more, under the note verbale the German government had sent the American government on the topic, the witnesses would have the right to refuse to answer any question if the deposition were taken in Germany, and other Peiker executives in another related action had indeed refused to answer questions. Does Peiker Acustic’s position seem equitable to you?
It certainly didn’t seem equitable to the Court. Emphasizing that Peiker was the plaintiff, and that ordinarily the depositions of the plaintiffs’ witnesses take place in the district where the action is pending, the court denied the executives’ motion for a protective order.
The court glossed over the issue of whether Kennedy had an adequate ability to obtain evidence from the executives under the Hague Evidence Convention, which is one of the factors relevant to the analysis under Aerospatiale. The court may not have understood that even if Kennedy could not compel the executives to answer questions in an American-style deposition in Germany, Kennedy could have sought judicial assistance through the German central authority, and the German court would have questioned the witnesses under its own procedure for gathering evidence. (It should be obvious why this procedure is less than ideal from the perspective of an American lawyer used to gathering his or her own evidence, but in my view the court should at least have discussed the point). But even with the availability of this means of gathering evidence, the overwhelming factor seems to be that Peiker had decided to sue in America, and in a district that was convenient for it rather than for Kennedy. It is simply unfair for Peiker then to claim the benefit of its foreign status in seeking to game the discovery system to its advantage.