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Otto v. Refacciones Neumaticas La Paz

United States District Court, D. Nevada

March 26, 2019

CARRA OTTO, et al., Plaintiffs,

          ORDER RE: ECF NO. 157


         A motion hearing was held on March 22, 2019, on Defendant Reffaciones Neumaticas La Paz, S.A., DE C.V.'s (RNP) Emergency Motion for Protective Order (ECF No. 157). Michael Pintar, Esq., appeared on behalf of Defendant RNP; Bradley Taylor, Esq., appeared by telephone on behalf of Defendant F&H Mine Supply (F&H); Stephen Balkenbush, Esq., appeared on behalf of Defendant Mid-Western, LLC (MW); and William Jeanney, Esq., appeared on behalf of Plaintiffs.

         The court scheduled a hearing on RNP's motion to address whether Plaintiffs' deposition of RNP's person most knowledgeable (PMK) had to be noticed under the Hague Convention and whether the PMK deposition should be taken in accordance with the Mexican Rules of Civil Procedure. (ECF No. 158.)

         The court also addressed Plaintiffs' opposition to RNP's motion, which opposition included a renewal of Plaintiffs' request that the deposition of RNP's PMK, a Mr. Fernandez, be taken in Reno as opposed to Matehuala, Mexico. (ECF No. 159.)

         I. RNP's Emergency Motion for Protective Order (ECF No. 158)

         RNP's motion was based, as best as the court could understand it, on certain unidentified provisions of the “Mexican Code of Civil Procedure, ” attached as Exhibit 1 to Defendant's motion. (ECF No. 157-1.) The Mexican Code was presented to the court in Spanish format; no English translation was provided. Neither Defendant's motion nor counsel's argument pinpointed any specific provision of the Mexican Code which would present any obstacle to the Plaintiffs' proposed videotaped deposition of RNP's PMK in Mexico. The court concluded RNP had not provided any viable argument that the Mexican Code should prevent the Fernandez deposition from proceeding under the Federal Rules of Civil Procedure.

         The second component of RNP's motion was based on an argument that Plaintiffs' notice of Mr. Fernandez's deposition, which was scheduled for RNP's principal place of business in Matehuala, Mexico, was not in conformity with Fed.R.Civ.P. 28, which pertains to “Persons Before Whom Depositions May Be Taken.” Defendant argued that under Rule 28, the Fernandez deposition should have been noticed under the Hague Convention. (ECF No. 157 at 5.) Plaintiffs contended the deposition was properly noticed under Fed.R.Civ.P. 30 and 28.

         The court agreed with Plaintiffs' position. The United States Supreme Court held in Société Nationale Industrielle Aérospatiale v. District Court, 482 U.S. 522 (1987), that a deposition may be taken of a foreign corporation under the Federal Rules of Civil Procedure and that the Hague Convention is just “one method of seeking evidence a court may elect to employ.” (emphasis added). The Supreme Court also concluded that requiring a party to solely proceed under the Hague Convention “. . . would be inconsistent with the overriding interest in the ‘just, speedy, and inexpensive determination' of litigation in our court. See Fed.R.Civ.P. 1.” 482 U.S. 522 at 541, 542-43. The United States District Court for the District of Nevada has recognized that under Rule 28(b), a deposition in a foreign country may be taken “on notice.” Securities and Exchange Commission v. Banc de Binary, No. 2:13-cv-993-RCJ-VCF, 2014 WL 1030862 *2-3 (2014). RNP is a party and as such is subject to this court's Federal Rules of Civil Procedure. The court, therefore, rejected the second premise of RNP's motion that the deposition could only be noticed under the provisions of the Hague Convention.

         II. Plaintiffs' Renewed Request to Take the RNP PMK deposition in the United States (ECF No. 159)

         Plaintiffs represented they have been prepared to travel to Matehuala, Mexico (located apparently somewhat remotely in Northwestern Mexico), accompanied by an interpreter, court reporter and videographer. Counsel for RNP and MW were also prepared for the travel, which involved flights from Reno, Nevada, to Dallas, Texas (DFW), and air travel from DFW to a city in Mexico for subsequent two plus hours of land travel to Matehuala.[1] However, Plaintiffs renewed their request that the Fernandez deposition be taken instead in Reno, Nevada, as follows:

It should not go unnoticed that RNP has revealed a strategy of disruption and delay. It cannot be seriously doubted that they will find a way to disrupt a deposition taken in Mexico. Plaintiffs realize that this Court has thus far declined to order that the deposition take place in Reno. However, it is respectfully submitted that the circumstances have changed in that RNP's willingness to wreck havoc on these proceedings is more apparent that before. In light of this and the relatively huge costs of taking a videotaped deposition in Mexico compared to deposing Mr. Fernandez in Reno, we respectfully request that the Court sanction RNP by requiring Mr. Fernandez to travel, to Reno for his deposition.

(ECF No. 159 at 5, ll. 12-19.)

         At the March 22, 2019, hearing, the court expressed concern not only the logistics of travel to Mexico but the skepticism that RNP's Mexican counsel, who have been lurking in the background of several attempts to seemingly prevent this deposition from proceeding, may prohibit the orderly process of a deposition. (See, ECF Nos. 153 at 2-5, 156, 157, 158 and 159.)

         Courts have discretion where depositions should be conducted. Hyde Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). There is a strong presumption, albeit rebuttable, a foreign deposition should be taken at the corporation's principal place of business. Aérospatiale, supra, 482 U.S. at 546. The Plaintiffs were prepared to travel to Mexico at RNP's principal place of business until ...

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