The case of the day is RECARO North America, Inc. v. Holmbergs Childsafety Co. (E.D. Mich. 2011). RECARO, a child safety seat manufacturer, claimed that the defendants, Holmbergs Childsafety Co., a Hong Kong company, and its affiliates, Gnosjö-Gruppen AB and Holmbergs Childsafety AB, both Swedish companies, designed and manufactured the “A-locks” that it used in its child seats. It alleged that the A-locks were defectively designed and manufactured. RECARO, working with the NHTSA, recalled the seats, but the defendants denied any liability and, according to RECARO, “blamed the consumer for intentionally misusing the Child Safety Seat.” The lawsuit followed.
Late in the discovery period, RECARO noticed several depositions. First, it noticed the deposition of Gnosjö-Gruppen, the Swedish company, and Holmbergs Childsafety, the Hong Kong company, pursuant to Fed. R. Civ. P. 30(6)(b). That rule provides:
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
RECARO also noticed the depositions of several of the defendants’ officers by name. All of the depositions were to take place in Detroit.
The defendants had not raised the issue of the Hague Evidence Convention (with regard to depositions, at least) for the nearly two and a half years the case had been pending, and discovery was nearly over. Nevertheless, the defendants objected to the notices of deposition and asserted that the depositions had to take place in Sweden and Hong Kong. The magistrate judge, noting the Aerospatiale factors, held that the depositions should go forward in Detroit. Of particular interest was the judge’s reaction to the defendants’ argument that under foreign law, the two corporations could not compel their officers and directors to travel to Detroit to testify. The court rejected this argument, noting that all of the witnesses but one were listed on the defendants’ witness list for trial, and that two of the named witnesses had submitted declarations in support of the defendants’ unsuccessful motion to dismiss the case for want of jurisdiction. The court did, however, require the plaintiff to pay the witnesses’ travel costs.
I think the court’s view on this was yet another example of the courts’ reluctance to let foreign parties use the Hague Evidence Convention unfairly. If you’re telling your opponent that you may bring the witnesses to Detroit for trial, and the witness is your employee, then be prepared to bring the witness to the US for a deposition.