Frank Busch

Foreign discovery in state court litigation is never easy. Depositions of non-party witnesses in other states can require a commission in another state. Depositions of non-party witnesses in other countries can require adherence to international discovery law. These rules may slow discovery, but they make sense because they do not apply to the parties themselves. Parties can be compelled to attend deposition by simple notice, wherever they reside. Code Civ. Proc. §§2026.010, 2027.010.

Although serving a party is easy, taking party depositions can still be challenging. This is because an archaic law—first enacted in 1872—provides that “A witness … is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.” Cal. Code Civ. Proc. §1989. This statute, written long before affordable air travel reduced the difficulty of crossing state borders, forbids any order requiring anyone outside California to appear for deposition. Toyota Motor Corp. v. Superior Court, 197 Cal.App.4th 1107, 1125 (2011). Worse, it overrides the courts’ general authority to allow depositions to proceed in reasonable locations under Code of Civil Procedure §2025.260. Id. (“The plain language of the statutory scheme and the legislative history of that language fully support the conclusion that a trial court cannot order a nonresident to appear at a California deposition”).

This rule likely applies to any party, including a foreign Plaintiff. Toyota vacated an order compelling discovery from a foreign defendant. More recently, the Court of Appeal affirmed an order denying a motion to compel discovery—including document production—from a foreign defendant. I-CA Enterprises, Inc. v. Palram Americas, Inc., 235 Cal. App. 4th 257, 282 (2015). Although an older opinion reached the opposite conclusion when a foreign Plaintiff resisted discovery, Toyota expressly found the opinion unpersuasive, and the language of §1989 does not distinguish between attempts to depose plaintiffs and defendants. Glass v. Superior Court, 204 Cal. App. 3d 1048, 1053 (1988) (directing superior court to grant motion to compel); Toyota Motor Corp., 197 Cal.App.4th at 1124 (“We disagree with [Glass’] analysis and decline to follow it.”).

In some cases, being mindful of these limitations is enough to ensure party discovery flows smoothly. Where your adversary is located in Las Vegas, or New York, you can obtain discovery simply by being willing to travel to them. Given the simplicity of this approach, wise opposing counsel may even be willing to stipulate to whatever location is most efficient in your case, as both sides might prefer to avoid unnecessary travel costs.

The real problem arises where you need discovery from an overseas witness. Assume you are representing a California client sued by a foreign company alleging non-federal claims. Your client is stuck in state court, as removal is prohibited by statute. 28 U.S.C. § 1441(b)(2). As a result, you are stuck with California discovery procedures and will only ever be able to depose that company by traveling to its home country. For some countries, this will create only a minor added problem. Canada, for example, has no laws preventing parties in a private civil case in the United States from deposing a willing witness in Canada. For others, like India, a local deposition may take years to obtain because willing Indian citizens cannot be deposed in India without prior permission of the Indian Central Authority for the Hague Evidence Convention. See Whitesell Int’l Corp. v. Smith Jones, Inc., 827 F. Supp. 2d 964, 966 n.3 (S.D. Iowa 2011) (the Indian Central Authority can take a year just to serve materials it receives). While §1989’s limitation on discovery adds unnecessary cost or delay in these cases, at least you know you will ultimately obtain the deposition you need.

In the worst case, a deposition may simply prove impossible. China, for example, entirely forbids attorneys from taking depositions within its borders for use in American courts. The Department of State’s Judicial Assistance program warns that “Participation in such activity could result in the arrest, detention or deportation of the American attorneys and other participants.” How, under these circumstances, can you get the discovery you need to defend your client?

There are a few different methods currently being used to limit the harm caused by §1989. If you catch the problem early, and the Plaintiff has no legitimate reason to be suing in California, these discovery problems would support a forum non conveniens challenge. Cal. Code Civ. Pro. §410.30(a). Courts may threaten to use their authority to forbid trial testimony from parties who refuse to accommodate deposition notices. But see Twin Lock, Inc. v. Superior Court, 52 Cal. 2d 754, 761–62 (1959) (“The trial court is without power to impose sanctions … based upon the notice which defendants gave for the taking of the depositions in Los Angeles of the New York residents.”). Cooperative counsel may be able to negotiate reasonable terms.  See Cal. Code Civ. Proc. §2016.030.

Working around §1989’s limitations, even where possible, will increase costs, decrease access to information, or both. The realities of international commerce combined with California’s cutting-edge economy will exacerbate this harm, as they generate frequent international disputes. Presiding Justice Klein’s concurrence in Toyota correctly identifies another problem: “If foreign corporations doing business here are able to shield their personnel from effective discovery, they would have an unfair advantage over domestic automakers and other competitors, who are subject to extensive discovery in this country.” Toyota Motor Corp., 197 Cal. App. 4th at 1131.  No benefit offsets this harm because the burdens of international travel are no longer what they were in 1872, and they should no longer take priority over the need for party discovery.

Frank Busch is a partner with Kerr & Wagstaffe LLP, a San Francisco-based boutique litigation firm. Busch’s practice focuses on complex trial and appellate litigation. He may be contacted at (415) 371-8500 or busch@kerrwagstaffe.com.