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From Products Liability Law Daily, January 27, 2014

Change in deposition location as discovery sanction exceeded judge’s authority; mandamus granted

By Pamela C. Maloney, J.D.

A federal district judge exceeded his authority in ordering that the location of depositions of employees of a German drug manufacturer be moved from Amsterdam to the United States as a sanction for the discovery abuse by the manufacturer and its attorneys, the U.S. Court of Appeals for the Seventh Circuit ruled, granting the manufacturer’s motion for a writ of mandamus (In re: Petition of Boehringer Ingelheim Pharmaceuticals, Inc. Pradaxa (Dabigatran Etexilate) Products Liability Litigation), January 24, 2014, Posner, R.)

Background. This multi-district litigation arose out of injuries allegedly caused by Pradaxa, a prescription blood thinner manufactured by an American company and its German affiliate (collectively Boehringer). As sanctions for what it characterized as “interminable discovery delays” by the manufacturer, the district court imposed both fines and a change in deposition location for 13 employees of Boehringer, all of whom worked in Germany. Boehringer petitioned the court of appeals for a writ of mandamus quashing the sanctions.

Discovery sanctions. Under federal law, judges are empowered to subpoena U.S. citizens living abroad, but that power is limited to situations in which the citizen’s testimony cannot otherwise be obtained in admissible form. That was not the case in this instance because the testimony could be obtained by deposition in Amsterdam as the parties had agreed. Thus, this provision did not provide authority for the district judge’s sanction order. Similarly, the federal rule of procedure requiring an organization to designate one or more officers, directors, or managing agents, or to designate other persons who consent, to testify on its behalf was immaterial as none of the 13 individuals ordered to testify at the deposition fit into any of those categories.

Looking to the procedural rule that provided the source of judicial power to impose sanctions for disobeying a discovery order, as well as the sanctions themselves, the Seventh Circuit concluded that the sanctions purported to enlarge judicial power to impose these types of orders against foreigners. The parties could not be forced to come to the United States to be deposed and the court questioned whether using an employer’s leverage over its employees was a proper means of circumventing limitations on deposing persons in foreign countries. Finally, the court of appeals explained that it had difficulty understanding the order to change the site of the depositions as a sanction. The judge could have ordered Boehringer to pay for unreasonable expenses incurred by the plaintiffs relating to scheduled depositions. However, ordering Boehringer to be the court’s agent in violating federal legal limitations on compelled discovery in foreign countries, merely so that depositions could be shifted to a place inconvenient for the witnesses, who were not corporate “bigwigs,” was problematic.

Finally, the court cited the possibility that Boehringer could complain to the German government, or to the U.S. State Department, that the district judge’s order infringed German sovereignty as a reason to set aside the sanction.

Writ of Mandamus. Acknowledging that the U.S. Supreme Court has refused to include discovery orders within the class of “collateral orders” appealable through the interlocutory process, the court went on to note that the high court had made it clear that mandamus provides a “safety valve” that enabled appellate review of a discovery order in exceptional circumstances. This case was, according to Judge Posner, “one of those rare “safety valve” cases for mandamus because of the risk of international complications arising from a U.S. judge’s having ordered foreigners to be brought to the United States to be deposed, when there is no legal authority for such an order; because alternative sanctions are readily available; and because the particular sanction punishes innocents—the inventors whom the order requires Boehringer to fly to the United States to be deposed, rather than their being deposed in nearby Amsterdam as the parties had agreed.

Dissent. In his dissent, Judge Hamilton declared that the writ of mandamus was being misused to obtain immediate appellate review of an interlocutory discovery sanction. Mandamus could only be an option in extraordinary cases and only when there was no other adequate remedy and the petitioner’s right was clear and undisputable. However, this was a major league discovery dispute in a high-stakes international litigation and refusing to comply with a discovery order believed to be unlawful was the respectful and orderly procedure, Judge Hamilton admonished. Even if mandamus were the only path to meaningful review, the writ should not issue unless the manufacturer could show a clear and undisputable right to the writ—a standard not met in this case. According to Judge Hamilton’s opinion, the sanctions were “superbly tailored” to solve the problem faced by the district court, i.e., the manufacturer’s lengthy record of discovery abuses and failures, and there was no explicit authority for or against it.

The case number is 13-3898.

Attorneys: Dan Howe Ball (Bryan Cave LLP) for Boehringer Ingelheim Pharmaceuticals, Inc. Beth Rose (Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross) for Boehringer Ingelheim International GMBH. Roger Clark Denton (Schlichter, Bogard & Denton) for David R. Herndon. Robert Niemeyer (Monder, Shelton, O'Leary & Peterson, LLC) for Pradaxa Dabigatran Etexilate Products.

Companies: Boehringer Ingelheim Pharmaceuticals, Inc.; Boehringer Ingelheim International GMBH; Pradaxa Dabigatran Etexilate Products

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