This past week, Magistrate Judge Katharine H. Parker issued a decision, Pearlstein v. Blackberry, Ltd. , 13-CV-07060 (CM)(KHP), 2019 U.S. Dist. LEXIS 148510 (S.D.N.Y. Aug. 29, 2019), granting the Plaintiffs' motion for the issuance of letter rogatory to the United Kingdom under the Hague Convention for the purpose of taking the deposition of a Blackberry executive and for de-designation of documents marked confidential pursuant to a protective order.
Fed. R. Civ. P. 28(b) allows for depositions of third parties to be taken in a foreign country. Judge Parker rejected the Defendants' position that the topics to be covered at the deposition were cumulative or duplicative, but did find that questioning about one Blackberry product, the Playbook, was not proportional to the needs of the case. This product had only a tenuous connection to smartphones which were the focus in a case alleging securities fraud in connection with the release of the Blackberry 10 smartphone. The Court rejected the Defendants' argument that the motion should be denied because UK courts were likely to deny the letters rogatory. "Though UK courts have denied letters rogatory for depositions as too broad and too investigatory, crafting a letter of request in compliance with the UK law is outside of the purview of this Court." Id. at *8.
The Court also denied the Plaintiffs' request to compel the Defendants to provide the deposition witness's business address, because of the provisions of the GDPR. "Defendants have represented that, under the European Union's General Data Protection Regulation, they are unable to disclose his address without his consent, which they have not received." Id. at *11.
The formal request made to the UK courts includes 17 sections:
1. Sender [Judge Parker]
2. Central Authority of The Requested State [Foreign Process Section, Royal Courts of Justice]
3. Person To Whom The Executed Request Is To Be Returned
4. Specification Of The Date By Which The Requesting Authority Requires Receipt Of The Response To The Letter Of Request [about 2 months]
5. Requesting Judicial Authority / Competent Authority / Case Name
6. Names and Addresses of the Parties and Their Counsel
7. Summary of the Claims and Defenses
8. Evidence Sought
9. Identity And Address Of Any Person To Be Examined
10. Questions To Be Put To The Person To Be Examined Or Statement Of The Subject-Matter About Which They Are To Be Examined
11. Documents or Property to Be Inspected
12. Any Requirements That The Evidence Be Given Under Oath And Any Special Form To Be Used
13. Special Methods Or Procedure To Be Followed
14. Request For Notification Of The Time And Place For The Execution Of The Request And Identity And Address Of Any Person To Be Notified
15. Request For Attendance Or Participation Of Judicial Personnel
16. Specification Of Privilege Or Duty To Refuse To Give Evidence Under The Law Of The State Of Origin
17. Fees and Costs