We haven’t blogged much about the Pradaxa MDL pending in the Southern District of Illinois. A quick search turned up a post on a case that was remanded because a sales representative was found to be properly joined and a post on a not so great discovery ruling. But, it’s a relatively young MDL with, we’re sure, much more yet to offer us. Given the age of the MDL and its current status – in the middle of discovery – we are a little surprised that the first defense-favorable decision we are reporting on comes from the Seventh Circuit. But here you have it.
Back in December, the district court entered an order sanctioning defendant for alleged discovery delays and abuses. In re Petition of Boehringer Ingelheim Pharmaceuticals, Inc., and Boehringer Ingelheim Int’l. GMBH, In Pradaxa Prods. Liab. Litig., No. 13-3898, slip op. at 1 (7th Cir. Jan. 24, 2014). Defendant petitioned the appellate court for a writ of mandamus quashing the sanctions. Id. at 1-2. The appellate decision doesn’t question the decision to sanction. It doesn’t even discuss the purported abuses. And it doesn’t take issue with the monetary sanctions imposed by the district court. Those would normally not be reviewable at this stage of the proceedings – no interlocutory appeal for discovery orders, including sanctions. A writ of mandamus, however, is available “when a discovery order amount[s] to a judicial usurpation of power or a clear abuse of discretion, or otherwise works a manifest injustice.” Id. at 5. That’s a pretty high standard – and one the Seventh Circuit found was satisfied in this instance.
So, what was the sanction that the appellate court found “deeply troubling”? Id. at 2. The district court ordered the location of the depositions of 13 Boehringer employees who live and work in Germany changed from Amsterdam (original agreed upon location) to New York City. Ten of the 13 employees are also German citizens. Id. First question: can the court do that? Certainly as to foreign citizens not located within the United States, the answer is no (there is a Rule 30(b)(6) exception but that didn’t apply to these witnesses). They are beyond the subpoena power of any U.S. court. But, the court didn’t have legal support even for the U.S. citizens.
A federal judge is empowered to subpoena a U.S. citizen living abroad to appear before him and be deposed, but only if the citizen’s testimony can’t be obtained in admissible form otherwise, 28 U.S.C. §1783(a) – and here it can be, by a deposition conducted in Amsterdam.
Id. at 3. Second question: if allowed to stand, how would the court enforce it? Answer: it can’t. The witnesses aren’t parties. They can refuse to come to the U.S. And, the Seventh Circuit expressed real concern over “using an employer’s leverage over his employees [as a] means of circumventing limitations on deposing persons in foreign countries.” Id. at 4. And what about international complications such as challenging the order as infringing German sovereignty? “Do we need that?” Id. at 5.
The court was also not persuaded that because Amsterdam and New York are both outside Germany there was really no difference between the two cities. We’ll skip the geography lesson and assume you all appreciate the difference as the court did. Id. at 4.
Final question: who is really being sanctioned? And this is where the form of the sanction takes precedence over the substance. Certainly, the district court’s goal was to punish defendant by making it more time consuming and costly to produce these witnesses for deposition. To that, the appellate court said OK. Make it more costly by making defendant pay plaintiffs’ counsel’s traveling expenses – if such a sanction is warranted in relation to these depositions.
The problem is the form the sanction ordered by the judge took – ordering Boehringer to be the court’s agent in violating federal legal limitations on compelled discovery in foreign countries, merely so that the depositions could be shifted to a place inconvenient to the witnesses who are to be deposed. They are to be punished for the sins of their employer.
Id. at 5. In the form of the sanction, the court exceeded its authority. We don’t expect this is common practice, but it should be good news to our clients with foreign parents and affiliates.