The case of the day is Monsanto Co. v. Kilgore (Ark. 2023). Cornelius Kilgore sued Monsanto in Drew County, Arkansas, alleging that he suffered from cancer that had been caused by his long-term exposure to Monsanto’s Roundup-brand products. They sought to take a deposition, by notice, of Bauman, the CEO of Bayer AG, Monsanto’s parent company. Bayer and Bauman were in Germany. The trial court denied a motion for a protective order, and Monsanto sought review by way of a writ of certiorari.

By a 4-3 vote, the Arkansas Supreme Court denied the petition, essentially because the matter was a discovery matter that did not warrant extraordinary relief.

I don’t have much to say about the majority’s decision, which may well be right. Interlocutory review of discovery decisions is rare by design. But there was a spirited dissent that made very good points on the merits. First, as a matter of US civil procedure, it’s not clear why Bauman could be compelled to appear for a deposition by notice rather than by subpoena. He isn’t a party, and he is the CEO not of the party or even a subsidiary of the party, but of the party’s corporate parent.

Second, and of more interest to Letters Blogatory readers, the dissenters argued that the court failed even to consider whether the judge should have required Kilgore to seek to make use of the Hague Evidence Convention and did not analyze the Aérospatiale factors to decide whether comity required resort to the Convention. Now, it’s not clear to me that Aérospatiale governs in state court in the way that Volkswagen governs in Service Convention matters. The Service Convention is self-executing and part of the law of the land, and it preempts contrary state law. The Evidence Convention is merely an optional method of taking evidence, and Aérospatiale is all about comity and discretion, not about binding rules. I could imagine a state court taking the position that you should always resort first to the Convention, and I could imagine a state court taking the position that you never need to resort first to the Convention. I am not sure either position is foreclosed by federal law. I will look into that issue in a later post.

But whether or not federal law compels the Arkansas courts to do an Aérospatiale analysis, the Arkansas courts should decide, as a matter of Arkansas law, that their courts should consider comity in deciding a motion for a protective order that raises the kinds of concerns Aérospatiale raised. So while the dissenters may well have been wrong that something about the case justified immediate review, they were right about the substance.