United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY T. GILBERT UNITED STATES MAGISTRATE JUDGE
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.
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.
Plaintiffs Standing to Object
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.
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.").
"Discovery" and "Trial" Depositions and
the Applicability of the Hague Convention
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.
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)).
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).
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.
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]. ...