Case of the Day: Pinnacle Packaging Co. v. Constantia Flexibles GmbH

The case of the day is Pinnacle Packaging Co. v. Constantia Flexibles GmbH (N.D. Okla. 2015). Pinnacle and the other plaintiffs served a notice for the deposition of Thomas Unger, the CEO of Constantia, and for the depositions of corporate representatives of Constantia and One Equity Partners. Unger resides in Germany. Constantia’s offices are in Austria, and One Equity’s officers are in Germany. The depositions were to take place in New York. The defendants moved for a protective order, arguing that the depositions should take place in Germany and Austria rather than in New York.

I am not going to review in detail the several factors that the court correctly used in determining whether a departure from the rule that a defendant is ordinarily to be deposed in its home forum is warranted. The most interesting thing about the case is the outcome. Germany sets some conditions on US-style depositions of its nationals in Germany, but the German government generally approves requests to take such depositions. In Austria, at least according to the State Department’s guidance, the government generally refuses to grant permission. The result? The German defendants’ motion for a protective order was granted, while the Austrian defendant’s motion was denied. This illustrates what’s at stake for civil law states that generally oppose allowing US lawyers to conduct depositions on their territory. Sticking to their principled position can impose real costs on their nationals, who may be required to travel to the United States to testify.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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