The case of the day is In re Petition of Boehringer Ingelheim Pharmaceuticals, Inc. (7th Cir. 2014). Judge Posner, who wrote the opinion and is also the author of the Heraeus Kulzer and GEA Group cases, continues to show a strong interest in international judicial assistance. The case arose on a petition for a writ of mandamus seeking to challenge an unusual discovery sanction—an order requiring depositions of foreign witnesses to take place in the United States.
The underlying lawsuit against Boehringer Ingelheim related to the warning labels on Pradaxa, a prescription blood-thinning drug it manufactured. Following a series of discovery violations, the judge, pursuant to his inherent powers, sanctioned Boehringer by requiring it to bring to the United States all of its German employees who were to be deposed, rather than requiring them to be deposed in Amsterdam (apparently the parties had agreed to depositions in the Netherlands rather than in Germany before the discovery dispute arose, which is sensible considering the difficulty in taking US-style depositions in Germany). Boehringer sought a writ of mandamus to quash the sanction.
Judge Posner noted that the court had the power, under the rarely-used 28 U.S.C. § 1783, to issue a subpoena to a US citizen abroad requiring him to appear in the United States, “but only,” Judge Posner wrote, “if the citizen’s testimony can’t be obtained in admissible form otherwise, and here it can be, by a deposition conducted in Amsterdam.” (I assume that the parties had agreed that the depositions would be American-style depositions, whether held in the Netherlands or in the United States). The court lacked the power to issue such a subpoena to a foreigner. And there is no other source of judicial power, according to Judge Posner, to compel foreigners abroad who are not themselves parties to an action.
Judge Posner makes some fair points. He wonders, “Is using an employer’s leverage over his employees a proper means of circumventing limitations on deposing persons in foreign countries?” And he expresses unease with “understanding the order to change the site of the depositions as a sanction,” because it punishes the employees “”for the sins of their employer.” The employees “are merely research scientists. They are not responsible for Boehringer’s contumacy, yet they are the targets of the sanction.” And he raises the issue of comity: “And suppose Boehringer complains to the German government, or for that matter the U.S. State Department, that the judge’s order is ultra vires and infringes German sovereignty. Do we need that?” With these considerations in mind, the judge, writing for himself and Judge Sykes, granted the petition and quashed the order requiring Boehringer to produce the witnesses in the United States.
Judge Hamilton wrote a strong dissent focusing on the extraordinary nature of the mandamus remedy. He points out that Boehringer had another remedy, namely to disobey the order and then appeal from a contempt sanction. Judge Hamilton notes that Boehringer
recognize[s] theses alternatives, but [it] just seems to weak-kneed to use them. They explain … that they do not want to refuse to comply with the order because they respect the court and because they do not want “to further jeopardize their interactions with the [district] court by willfully disregarding its order.” We should not enable this approach to litigation. with all due respect, this is a major league discovery dispute in highstakes international litigation. Refusing to comply with a discovery order you believe is unlawful is the respectful course and the orderly procedure. Refusal is a serious step that makes a party think hard about how important the issue is and how confident it is in its position.
Judge Hamilton went on to argue that the district judge’s sanction was not clearly wrong. He thought the order only a small departure from FRCP 30(b)(6), under which the court clearly has the power to require a party to produce its officers, directors, or managing agents at a particular place. These witnesses were not officers, directors, or managing agents, but he could find no authority for the proposition that the judge was forbidden to make the order he made. Since mandamus requires the petitioner to show a clear and undisputable right to relief, Judge Hamilton thus would have denied the petition both on procedure and on substance.
I think Judge Hamilton’s point about the procedural impropriety of the petition is right on the money. The ordinary method for challenging a discovery order is through appeal of a contempt finding. Judge Posner is right to say that mandamus can, in rare cases, provide relief from improper discovery orders, but it’s not really clear why an appeal from a contempt finding would not be sufficient. Judge Posner points to the “risk of international complications.” But it seems to me that the possible complications were speculative and hardly imminent (there was no indication, as far as the opinion discloses, of actual concern by the German government), and it’s pretty routine for a court, exercising its ordinary case management powers, to set the places for depositions of the parties and persons within their control. So it would not be unreasonable to have required Boehringer to risk contempt; the case is not as exceptional as Judge Posner makes it out to be.