754 F.2d 602 (5th Cir. 1985), 84-3286, In re Anschuetz & Co.

Docket Nº:84-3286.
Citation:754 F.2d 602
Party Name:Fed.R.Serv.3d 645 In re ANSCHUETZ & CO., GmbH, Petitioner.
Case Date:March 07, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 602

754 F.2d 602 (5th Cir. 1985)

Fed.R.Serv.3d 645

In re ANSCHUETZ & CO., GmbH, Petitioner.

No. 84-3286.

United States Court of Appeals, Fifth Circuit

March 7, 1985

Page 603

Milling, Benson, Woodward, Hillyer, Pierson & Miller, Robert S. Dietz, Neal D. Hobson, New Orleans, La., for appellant.

Derek A. Walker, Campbell E. Wallace, Kenneth J. Servay, Paul A. Nalty, New Orleans, La., for Compania.

Peter Heidenberger, Washington, D.C., George Arceneaux, Jr., Judge, U.S.D.C., New Orleans, La., for amicus curiae, Federal Republic of Germany.

Wm. A. Porteous, III, New Orleans, La., for Landis.

John M. Rogers, Appellate Staff, Civ. Div., Justice Dept., Washington, D.C., for U.S.A.

Page 604

Cornelius G. Van Dalen, New Orleans, La., for MS. River.

James O.M. Womack, New Orleans, La., H. Lee Lewis, Jr., Houston, Tex., for Boh Bros.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, TATE, and HIGGINBOTHAM, Circuit Judges.

JOHN R. BROWN, Circuit Judge:


Anschuetz & Co., GmbH (Anschuetz), third party defendant in the United States District Court for the Eastern District of Louisiana, petitioned this court pursuant to Rule 21(a) of the Federal Rules of Appellate Procedure for a writ of mandamus ordering the district judge to vacate or stay various orders directing Anschuetz to (i) produce 11 or more of its employees for depositions in Germany; (ii) produce documents in New Orleans now located in Germany; and (iii) pay attorney's travel expenses for preliminary depositions in Kiel, Germany. Anschuetz opposes all of the foregoing as a violation of the Multilateral Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, done 18 March 1970 [1972], 23 U.S.T. 2555, T.I.A.S. No. 7444 (Hague Convention). 1

After much reflection, we conclude that the Hague Convention does not supplant the application of the discovery provisions of the Federal Rules over foreign, Hague Convention state nationals, subject to in personam jurisdiction in a United States Court.


In January of 1979, the M/V POLA DE LENA, then owned by Naviera Santa Catalina and chartered to Compania Gijonesa de Navegacion S.A., 2 collided with the Gretna Ferry Landing and two ferry boats owned by the Mississippi River Bridge Authority. The Mississippi River Bridge Authority then filed suit against the M/V POLA DE LENA and Gijonesa. The suit was later consolidated with another case and eventually included as plaintiff the Mississippi River Bridge Authority, owner of the facility and the two ferry boats, Landis Construction Company, and Boh Brothers, Inc., contractors responsible for construction work on the Landing. Settlements have been reached with the Mississippi River Bridge Authority and with Landis--Gijonesa and Anschuetz reserving all rights against each other. Boh Brothers remains a party.

Gijonesa filed a third party complaint against Anschuetz, a German corporation, alleging the failure of a steering device designed by Anschuetz as a contributing cause of the accident. Anschuetz denied the jurisdiction of the court, but the district court ruled that Anschuetz was subject to the court's jurisdiction pursuant to the Louisiana long-arm statute. 3

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Anschuetz then sought to bring in third party Empressa Nacional De Bazan (Bazan), the shipyard in Spain which had built the vessel and installed the steering device. Bazan also denied the jurisdiction of the Louisiana district court and all proceedings were halted for approximately two years while the jurisdictional fight with Bazan went forward. 4 Eventually the district court ruled that Bazan was not subject to the court's jurisdiction.

In October of 1983, Gijonesa amended its complaint to allege product liability claims against Anschuetz and embarked on a round of discovery involving interrogatories, requests for production, and notices of depositions. In January of 1984 Anschuetz moved for a protective order with respect to the interrogatories, requests for production of documents, and notices of deposition. Anschuetz argued that the discovery was overbroad and should be limited in scope. Anschuetz also argued that Gijonesa was afforded the opportunity to examine Anschuetz personnel at the 1981 depositions in Spain and should not be entitled to "another bite at the apple." In its motion Anschuetz did not rely on the Hague Convention. Moreover, the motion stated that "Anschuetz has offered to have Gijonesa's counsel or other representative examine Anschuetz' files in Germany."

In February of 1984, the United States Magistrate, following two discovery conferences, ordered Anschuetz to comply with most of Gijonesa's discovery demands. Anschuetz witnesses were apparently examined in Germany in early April of 1984. On April 18, Anschuetz moved for a protective order based on the Hague Convention to stop the depositions scheduled to take place in Germany on May 2, 1984. The magistrate denied this motion. Anschuetz appealed to the district judge. The judge upheld the magistrate's denial of the motion. He also refused a Sec. 1292(b) petition for certification. We stayed the magistrate's discovery order pending resolution of the alleged conflict between the Hague Convention and the Federal Rules of Civil Procedure. In order that all relevant views be before us, we invited amicus curiae briefs from the Federal Republic of Germany and our own Department of Justice. 5

By way of summary, the German government has stated that the taking of oral depositions in Kiel, Germany, and the production of documents located in Kiel, would be a violation of German sovereignty unless the order is transmitted according to a letter of request as specified in the Hague Convention. The Department of Justice contends that the Hague Convention is not the exclusive method of obtaining evidence and that the district court's order regarding document production does not conflict with any treaty obligation of the United States under the Convention. The Department, however, urges a careful comity analysis be employed by courts before departing from the mechanisms of the Convention. It is also the Department's position that a district court's ordering of depositions to be conducted on German soil is a violation of the international law obligations of the United States.


Since this is the first time a circuit court has considered the interplay between the Hague Convention and the Federal Rules, we will examine the relevant cases in a

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systematic fashion in order that our line of reasoning be clear for all to follow.


Anschuetz, in effect, argues that international comity is promoted and the judicial sovereignty of West Germany preserved, if the discovery orders and sanctions against it are voided and Gijonesa is forced to conduct its discovery under German internal law and procedure following the Hague Convention. 6 In support of its argument, Anschuetz cites: Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58 (E.D.Pa.1983); Schroeder v. Lufthansa German Airlines, No. 83C1928 (N.D.Ill. Sept. 15, 1983); Volkswagenwerk, A.G. v. Superior Court, 123 Cal.App.3d 840, 176 Cal.Rptr. 874 (1981); Pierburg GmbH & Co. v. Superior Court, 137 Cal.App.3d 238, 186 Cal.Rptr. 876 (1982). These cases have required litigants to rely upon the Hague Convention for pretrial discovery, reasoning that international comity is thereby promoted. Schroeder and Philadelphia Gear relied heavily on the two decisions of the California Court of Appeals.

In Volkswagenwerk, a products liability suit arising out of an automobile accident, the trial court entered a detailed discovery order providing for on-site inspection of Volkswagen's plant in Germany. In its careful opinion, the California Court of Appeals directed that the trial court vacate its order, holding that the plaintiff should be required to proceed under the Hague Convention not as a matter of international law, but as a matter of judicial self-restraint. The court's primary concern was the on-site discovery proceeding which the trial court had ordered to take place within West Germany. In Pierburg, another automobile products liability suit where the court denied discovery requests, the court relied heavily on Volkswagenwerk and an earlier case, Volkswagenwerk A.G. v. Superior Court, 33 Cal.App.3d 503, 109 Cal.Rptr. 219 (1973). These cases considered a trial court's order that the discovery proceedings take place in Germany. In essence, the California Court of Appeals ruled that allowing plaintiffs to serve interrogatories on a West German defendant would destroy the Hague Convention.

We do not find these cases to be well reasoned. Indeed, none of the cases relied upon by Anschuetz indicate in any way that the purpose of the Convention was to restrict the exercise of in personam jurisdiction by United States courts over foreign nationals properly before it. Anschuetz' interpretation of the treaty, taken to its logical conclusion, would give foreign litigants an extraordinary advantage in United States courts. Insofar as Anschuetz seeks discovery it would be permitted the full range of free discovery provided by the Federal Rules. But when a United States adversary sought discovery, this discovery would be limited to the cumbersome procedures and narrow range authorized by the Convention. Further, we believe that requiring domestic litigants to resort to the Hague Convention to compel discovery against their foreign adversaries encourages the concealment of information--a result directly antithetical to the express goals of the Federal Rules and the Hague Convention which aim to encourage the flow of information among adversaries.


Gijonesa is on more solid ground...

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