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Maui Jim, Inc. v. Smartbuy Guru Enterprises

United States District Court, N.D. Illinois, Eastern Division

August 30, 2019

MAUI JIM, INC., an Illinois Corporation, Plaintiff,



         This case is before the Court on Defendants' Motion for Letter of Request. [ECF Nos. 1');">1');">321');">1, 322], For the reasons discussed below, Defendants' Motion is denied.


         This long-running litigation arises out of the alleged unauthorized sale of Maui Jim sunglasses by Defendants. Fact discovery closed on February 1');">15, 201');">19. A month later, on March 1');">11');">1, 201');">19, Defendants filed a Motion for Letter of Request, asking the Court to invoke the Hague Convention so that Defendants may "call key witnesses to trial in this case - [Witness A, Witness B, and Witness C][1');">1" name="FN1');">1" id="FN1');">1">1');">1] -who are citizens of and live in Italy." [ECF No. 1');">1');">321');">1, 1');">1');">p. 1');">1]. Plaintiff objected, arguing that Defendants were essentially taking a second bite at the fact discovery apple having chosen not to depose these witnesses during the many months when fact discovery was open. Defendants responded that procedurally, Plaintiff had no standing to object to their Letter of Request, and substantively, Defendants are seeking limited "trial evidence," not "discovery evidence." Defendants further asserted that even if they are seeking fact discovery, they have satisfied their burden under the Hague Convention so the Court should grant their Motion for Letter of Request.


         I. Plaintiffs Standing to Object

         As an initial matter, Plaintiff has standing to object to the extension of a discovery deadline, as would any party in a case where the other side is seeking an extension of discovery. As explained in more detail below, Defendants' Motion for Letter of Request is, as a substantive matter, a plain request to extend (or reopen) fact discovery so Defendants may depose Witness A, Witness B, and Witness C. Additionally, when ruling on the merits of similar motions for letters of request under the Hague Convention, courts routinely consider an opposing party's objections. See, e.g., Dyson, Inc. v. SharkNinja Operating LLC, 201');">16 WL 5720702 (N.D. 1');">11');">11');">1. 201');">16); Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 201');">13 WL 1');">12291');">161');">16 (S.D. Ind. 201');">13).

         Common sense teaches that a party has every right to object to additional, costly, and potentially time-consuming depositions an opposing party wants to take, especially where the depositions will occur in a foreign country. "[D]iscovery, like all matters of procedure, has ultimate and necessary boundaries." Hickman v. Taylor, 329 U.S. 495, 507 (1');">1947). The Court clearly established such boundaries in this case, and Plaintiff has the right to object when an opposing party strays beyond the "reasonable opportunity to investigate the facts" they were afforded during fact discovery. Vakharia v. Swedish Covenant Hosp., 1');">1994 WL 75055 at *2 (N.D. 1');">11');">11');">1. 1');">1994). Plaintiff has an interest in moving this case toward trial or other disposition in an efficient and cost-effective way, which also gives it the right to object to Defendants' Motion here. Cf. Phipps v. Adams, 201');">12 WL 3074047, at *3 (S.D. III. 201');">12) ("Plaintiff has standing to seek enforcement of the order [cutting off discovery] because he has an interest in the administration of the legal proceeding.") (citing Hartz Mountain Corp. v. Chanelk Pharm. Veterinary Prod. Mfg. Ltd., 235 F.R.D. 535, 536 (D. Me. 2006)); see also, Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 1');">1 F.R.D. 426');">231');">1 F.R.D. 426, 428 (M.D. Fla. 2005) ("Not only do Defendants have a personal interest in receiving adequate notice of depositions, a party has standing to move to enforce the Court's orders and rules.").

         II. "Discovery" and "Trial" Depositions and the Applicability of the Hague Convention

         On the merits, the dispute about Defendants' Motion for a Letter of Request is, in the Court's view, much simpler than the parties' lengthy filings suggest. The question before the Court is whether the substance of Defendants' Motion involves a request for extension (or reopening) of fact discovery or, as Defendants characterize it, a request to preserve "trial evidence." If Defendants seek more fact discovery, whether the Hague Convention would be an appropriate or effective vehicle to secure such evidence is irrelevant, unless there is reason to extend or reopen discovery. Fact discovery closed on February 1');">15, 201');">19. Defendants' invocation of the Plague Convention does not change that fact. If, on the other hand, Defendants wish to preserve testimony for trial by way of limited "trial depositions," as distinct from "discovery depositions," then the Court must determine whether this is a permissible use of the Plague Convention.

         Defendants repeatedly assert they only intend to take "trial depositions" of the three witnesses identified in the Letter of Request. Trial depositions are not explicitly contemplated by the Federal Rules of Civil Procedure, as the Rules do not distinguish between discovery and trial depositions. However, some courts have recognized, on a limited basis, that depositions intended solely to preserve evidence for trial may be different than generic discovery depositions and can be taken outside the scope of otherwise applicable discovery deadlines under the circumstances of a particular case. See, e.g., Lenius v. Deere & Co., 201');">14 WL 687931');">11');">1 (N.D. Iowa 201');">14); Lucas v. Pactiv Corp., 2009 WL 51');">197838 (W.D. Va. 2009); Spongier v. Sears, Roebuck and Co., 1');">138 F.R.D. 1');">122');">1');">138 F.R.D. 1');">122, 1');">124-25 (S.D. Ind. 1');">1991');">1); Charles v. Wade, 665 F.2d 661');">1, 665 (5th Cir. 1');">1982). Other courts, however, have outright rejected this distinction, emphasizing that Rule 1');">16 of the Federal Rules of Civil Procedure was amended specifically to authorize and empower courts to establish discovery deadlines, enforce compliance with those deadlines, and avoid precisely the type of last-minute "trial depositions" Defendants seek in this case. See, e.g., Anderson v. Procter & Gamble Paper Products Co., 201');">13 WL 5651');">1802, *2-3 (E.D. Wis. 201');">13); Bond Pro Corp. v. Siemens Westinghouse Pwr. Corp., 2005 WL 256488 (W.D. Wis. 2005); Integra Lifesciences I, Ltd. v. Merck KGaA, 1');">190 F.R.D. 556');">1');">190 F.R.D. 556, 559 (S.D. Cal. 1');">1999) ("Based upon the lack of distinction in the Federal Rules between trial and discovery depositions, it has been held that there is no difference between the two, and that if a party wishes to introduce deposition testimony at trial, that testimony should [be] procured during the time set by the court to conduct discovery absent exceptional circumstances...The Court finds this reasoning persuasive.") (citing Henkel v. XIM Prod., Inc., 1');">133 F.R.D. 556');">1');">133 F.R.D. 556, 557-58 (D. Minn. 1');">1991');">1)).

         Courts that do recognize an avenue for so-called "trial depositions" do so in rather specific and narrow circumstances. They describe the purpose of those depositions as to preserve information of which the party already has knowledge but that otherwise would be unavailable for trial, as contrasted with the broader goal of a discovery deposition to ascertain information in the first instance. Spangler, 1');">138 F.R.D. at 1');">124-25; Stuhlmacher v. Home Depot U.S.A., Inc., 201');">14 WL 835382 (N.D. Ind. 201');">14). In addition, based on the Court's own research, "trial depositions" generally are sanctioned where a separate "discovery deposition," or other form of recorded testimony, has taken or will take place before the "trial deposition." See, e.g., Lenius, 201');">14 WL 687931');">11');">1, at *2-*5; Lucas, 2009 WL 51');">197838; Griffin v. Foley, 542 F.3d 209, 220-21');">1 (7th Cir. 2008); Charles, 665 F.2d at 664. The intent of the trial deposition, then, is clear: memorializing the witness' trial testimony when a generic, all-purpose deposition taken during discovery is not sufficient for that purpose. Under this body of law, "whether the deposition is being taken for the purpose of preserving testimony or whether it is a pretext for the party's failure to procure the deposition during the discovery period" is a fact specific inquiry. Stuhlmacher, 201');">14 WL 835382, at *2 (citing Charles, 665 F.2d at 665).

         To encourage the Court to distinguish between a "discovery deposition" and a "trial deposition" based on the facts of this case, Defendants rely solely upon Seventh Circuit precedent in Griffin, 542 F.3d 209. Defendants argue that Griffin allows Defendants, at the discretion of the Court, to take separate "trial depositions" outside the discovery framework. Griffin, however, does not advance Defendants' ultimate position regarding their Letter of Request. Quite the opposite. In Griffin, Plaintiffs' experts were unavailable to testify at trial. All parties were aware of this fact prior to the experts' discovery depositions. The district court therefore allowed separate discovery and trial depositions, emphasizing that a single deposition functioning both as a discovery device and to preserve actual trial testimony - exactly like the single "trial deposition" Defendants request here - would have prejudiced the opposing party. The Seventh Circuit agreed, holding that under the specific facts of that case, a single deposition of each expert would have prevented opposing counsel from effectively discovering the opinions and positions of the witnesses and then preparing for cross-examination at trial. Id. at 220-21');">1. In the interest of fairness, the court affirmed the trial judge's exercise of his discretion to allow separate discovery and trial depositions to proceed.

         Whether or not a separate avenue exists for "trial depositions" under the Federal Rules of Civil Procedure, which is an interesting question the Court need not decide here, that is not what Defendants' are seeking. By any definition, Defendants intend to conduct "discovery depositions." They are effectively asking for the extension or reopening of fact discovery so they can obtain information about matters that have been at the heart of this case since day one. This is clear from the Letter of Request itself, in which Defendants state they intend to obtain, for example, "[t]estimonial evidence about the witnesses' interactions and relationship with Plaintiff and Defendants, including the sale of Maui-Jim branded products to Defendants." [ECF No. 1');">1');">321');">1-1');">1, p. 4]. They also intend to inquire about the "circumstances surrounding the witness' relationships with Plaintiff and Defendants; the witnesses' sale of Maui Jim-branded product to Defendant; proposed agreements between the witnesses, Plaintiff, and Defendants; Plaintiffs knowledge of the witnesses' sale of Maui Jim-branded product to Defendant." [ECF No. 1');">1');">321');">1-1');">1, p. 4]. ...

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