Volkswagenwerk Aktiengesellschaft v. Superior Court

• Decision Date: 23 September 1981
• Citation: 176 Cal.Rptr. 874,123 Cal.App.3d 840
• Court: California Court of Appeals Court of Appeals
• Parties: VOLKSWAGENWERK AKTIENGESELLSCHAFT, etc., Petitioner, v. SUPERIOR COURT, ALAMEDA COUNTY, Respondent, Thomas F. THOMSEN and Judith Thomsen, Real Parties in Interest. Civ. 51972.

Page 874

176 Cal.Rptr. 874

123 Cal.App.3d 840

VOLKSWAGENWERK AKTIENGESELLSCHAFT, etc., Petitioner, v. SUPERIOR COURT, ALAMEDA COUNTY, Respondent Thomas F. THOMSEN and Judith Thomsen, Real Parties in Interest.

Civ. 51972.

Court of Appeal, First District, Division 4, California.

Sept. 23, 1981.

Hearing Denied Jan. 20, 1982.

Jeffrey A. Little and Justs N. Karlsons, Carroll, Burdick & McDonough, San Francisco, for petitioner.

Robert N. Stark, Hefner, Stark & Marois and C. Afton Moore, III, Moore, Crawford & Stefanki, Sacramento, for real parties in interest.

POCHE, Associate Justice.

Volkswagenwerk Aktiengesellschaft, a German Corporation ("VWAG"), properly joined as a defendant in a California action for bodily injuries and loss of consortium, petitions for mandate or prohibition to vacate discovery orders issued by respondent court which would require VWAG to permit inspection of its plant and documentary records, and to give other discovery, in Wolfsburg, West Germany. The dispositive question is whether the orders should be vacated to avoid a violation of West German judicial sovereignty. This unusual and difficult issue may properly be raised by writ petition. (Cf. Board of Dental Examiners v. Superior Court (1976) 55 Cal.App.3d 811, 815, 127 Cal.Rptr. 865; Board of Administration v. Superior Court (1975) 50 Cal.App.3d 314, 324, 123 Cal.Rptr. 530; Volkswagenwerk Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 508, 109 Cal.Rptr. 219; O'Brien v. Superior Court (1965) 233 Cal.App.2d 388, 391-392, 43 Cal.Rptr. 815; cf. also Witkin, Cal. Evidence (2d ed. 1966) §§ 1050-1051, pp. 958-961; Annot. (1964) 95 A.L.R.2d 1229, 1232-1241, as supplemented.) We conclude that in the circumstances of this action the orders should be vacated.

The action arises out of a collision which occurred on October 22, 1976, when claimant Thomas Thomsen, driving a Volkswagen microbus manufactured by VWAG, struck a stopped vehicle. The front of the microbus apparently was pushed back into the driver's compartment, severely injuring Thomsen. Ultimately one of his legs was amputated. He and his wife ("claimants"), real parties in interest before this court, sued several defendants. Their theory against VWAG is that the microbus design was defective in that it did not provide sufficient "crashworthiness." The microbus is also known as a "type II vehicle" VWAG has recently replaced type II vehicles in production by a newer van design called a "Vanagon."

Claimants filed suit on June 24, 1977, and added VWAG as a defendant on September 18, 1978. There have been protracted discovery proceedings, including several bitterly-contested motions for discovery orders and for sanctions. In December, 1979, on claimants' motion and over VWAG's objection, a single judge was assigned to preside over further proceedings in the action. The first judge assigned was Hon. Hugh S. Koford; Judge Koford was replaced in the assignment by Hon. Robert L. Bostick in November, 1980.

In December, 1980, claimants moved for the discovery orders here in dispute. After hearings throughout which VWAG strenuously opposed all aspects of the motion, Judge Bostick (by orders filed on February 3 and February 23, 1981) granted most of the relief claimants sought. In outline the orders provide:

1. Premises.

a. Access: Claimants' representatives are to have access to the VWAG facilities at Wolfsburg during normal working hours on five consecutive days to inspect and photograph the premises, inspect and copy writings, and informally interview VWAG personnel. During claimants' inspection of facilities VWAG will provide a guide. Claimants may stay after normal working hours until 10:00 p. m. to examine and copy writings only, and during that time VWAG may designate a monitor at claimants' expense.

b. Inspecting and photographing premises: Claimants' representatives may inspect and photograph VWAG's facilities, subject to relevancy limitations and to existing and future protective orders.

2. Writings.

a. Access to technical library and plant and records: Claimants' representatives shall have access to VWAG's technical library and plant and records "relating to the Type II vehicles and predecessor and successor vehicles within its type, including the currently produced Vanagon model," subject to relevancy, trade-secret, and personnel-record limitations.

b. Inspecting and copying writings: Claimants' representatives may inspect and copy writings "which plaintiffs shall designate as bearing upon the design, testing, modification and analysis of the crashworthiness of the front end of the Type II vehicles and predecessor and successor vehicles within its type from the outset of production through the 'Vanagon' model currently produced." The order makes procedural provisions.

3. Informal interviews.

Claimants' representatives may, during normal working hours, "question any of defendant's employees, not under oath, to identify persons who possess knowledge Such questioning shall not consist of detailed interrogation as to substantive knowledge, but be only that reasonably necessary for plaintiffs to select appropriate persons for depositions and to locate documents." Claimants must minimize inconvenience; VWAG shall "advise and request" cooperation. VWAG may have counsel present and may tape-record.

4. Depositions.

Following the Wolfsburg visit, claimants shall provide a list of deponents within 45 days. Terms and procedures for depositions of deponents so listed are spelled out with specific reference to certain diplomatic communications known as "Notes Verbales," discussed below.

5. Ancillary provisions.

The orders also specify a date (since past) for the Wolfsburg visit to begin, require claimants to designate their representatives in advance, make all proceedings subject to an existing protective order, anticipate future consideration of depositions of experts, dispose of other pending issues, provide for administration of oaths, and state generally that: "The discovery procedures governing the conduct of counsel in this proceeding shall be those contained in plaintiffs' No. 1, the Notes Verbale commencing with the February 11, 1955 Note and, specifically, as set forth in the last exchange of the Notes of October 17, 1979 and February 1, 1980.1" Footnote (1) provides: "(1) This 'less restrictive' procedure is authorized by Article 27(b) and (c) of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, "

By its petition to this court VWAG attacks these orders in several ways.

California Law

VWAG first contends that the discovery orders are not authorized by the local law of California. Manifestly, to be enforceable outside the state a California discovery order must in the first instance comply with the California Discovery Act. VWAG makes several specific contentions; we agree with two of them.

First, the provision (contained in paragraph 1(d) of the February 23 order) which empowers claimants to designate which of VWAG's writings are relevant to the specified subject matter is too broad. In any event it would be necessary as a practical matter for claimants to designate the documents they wished to copy, and in light of the position which VWAG has maintained throughout this action it would be inevitable that VWAG would disagree with claimants as to the relevance of many if not all of the documents so designated. If such disagreements could not be resolved by negotiation, they should be resolved by the trial court. As drafted, the order would in effect empower claimants to resolve such disputes; a party to the dispute cannot be so empowered. In our view the provision would conform to the Discovery Act were the words "plaintiffs shall designate as bearing upon" deleted and the words "are relevant to" substituted.

Second, we find in the Discovery Act no authority for the requirement that VWAG give claimants access, during normal working hours, to its employees for the purpose of informal interviews. A party to litigation is entitled to unimpeded access to persons who may have relevant information, and may if necessary have court orders to forestall interference with such access. But these discovery orders go farther, requiring VWAG not only to permit claimants to interview its employees within its plant during working hours but also to "advise and request" that the employees cooperate with claimants. It is of course the policy of the Discovery Act that its provisions be liberally construed in favor of disclosure "unless clearly prohibited by statute or policy considerations." (Browne v. Superior Court (1979) 98 Cal.App.3d 610, 614, 159 Cal.Rptr. 669; cf. Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172-173, 84 Cal.Rptr. 718, 465 P.2d 854; Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 372, 15 Cal.Rptr. 90, 364 P.2d 266.) But we conclude that the provision for informal interviews cannot be brought within the Discovery Act by simple construction no matter how liberal. To validate the provision we would be required to extend the Discovery Act beyond its statutory text, and recent cases have made clear that such an extension would be improper. (Cf. Bailey v. Superior Court (1977) 19 Cal.3d 970, 978, 140 Cal.Rptr. 669, 568 P.2d 394 (videotaping depositions); Edmiston v. Superior Court (1978) 22 Cal.3d 699, 703-704, 150 Cal.Rptr. 276, 586 P.2d 590 (videotaping of medical examination "not affirmatively authorized"); Browne v. Superior Court, supra, 98 Cal.App.3d 610, 614, 159 Cal.Rptr. 669 (physical examination by nonphysician); Bailey v. Superior Court (1978) 79 Cal.App.3d 444, 446-448, 144 Cal.Rptr. 875 (section 2031 "production" of a nonverbal act to be photographed).) The provision for informal interviews should be stricken from the orders in any event.

We reject the rest of VWAG's contentions under the Discovery Act.

VWAG argues that claimants have adequate alternative means of...