Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Cal.: Foreign airline employees could not be compelled to appear in the U.S. for deposition, (Dec 27, 2013)

By Linda O’Brien, J.D., LL.M.

In a long-running class action by consumer air passengers against three foreign airlines for engaging in an international conspiracy to fix prices in air passenger travel, airline employees who were not managing agents were not compelled to appear for depositions in the United States, the federal district court in San Francisco has ruled (In re Transpacific Passenger Air Transportation Antitrust Litigation, December 20, 2013, Ryu, D.). However, the airline was required to produce the employees for depositions in the country in which the employees work.

Consumer air passengers filed suit against Air New Zealand (ANZ), China Airlines (CAL), and Philippine Airlines, Inc. (PAL), alleging an international conspiracy by the defendants to fix, raise, maintain, and/or stabilize prices for air passenger travel, including imposing fare increases and associated surcharges for international flights. The plaintiffs identified three current employees of CAL they sought to depose and requested an order to compel the employees to appear for deposition in the United States. CAL argued that the three employees were not officers, directors, or managing agents of the company and could not be compelled to appear for deposition in the United States. CAL also proposed to make the witnesses available for deposition in the country in which the employees worked.

A party may request the deposition of another party to the litigation by serving a notice upon that party pursuant to Federal Rule of Civil Procedure 30. If the person seeking discovery designates a particular witness within the corporation, the person must be an “officer, director, or managing agent” of the corporation. If the person is not an officer, director, or managing agent, he or she is not subject to deposition by notice. Instead, the party must subpoena the witness and utilize the procedures of the Hague Convention or applicable treaty, if the witness is located in another country.

The plaintiffs argued that (1) counsel for the plaintiffs and for CAL were located in the U.S.; (2) the time and expense of the counsel and support staff to travel to Asia outweighed the time and expense of the three employees to travel to the U.S.; (3) the payment of certain fees were required for depositions in Asia that were not applicable to the U.S.; and (4) disputes arising during the depositions would be impossible to resolve given the time difference between the U.S. and Asia.

The court found that the plaintiffs set forth no facts to rebut that the employees were not high-level corporate representatives or high-level employees of CAL. Since the plaintiffs failed to meet their burden of demonstrating that the employees were officers, directors, or managing agents of the airline, the employees could not be compelled to appear in the United States for deposition. Additionally, CAL’s offer to make the employees available for deposition in the county in which they were located eliminated procedural hurdles to the discovery, lessened the burden of conducting the depositions overseas, and mitigated the time and expense to take the depositions by coordinating a deposition schedule to maximize efficiency.

The case is No. C-07-05634-CRB.

Attorneys: Eric James Buescher (Cotchett Pitre and McCarthy, LLP) for Donald Wortman, William Adams, Margaret Garcia. Mario Nunzio Alioto (Trump Alioto Trump & Prescott LLP) for Martin Kaufman. Jay L. Himes (Labaton Sucharow LLP), Seth R. Gassman (Hausfeld LLP) for Rachel Diller. Terry Gross (Gross Belsky Alonso LLP) for Kevin Moy. Susan Gilah Kupfer (Glancy Binkow & Goldberg LLP) for Rufus Browning. Michael J. Holland (Condon and Forsyth LLP) for Air New Zealand. Alysia Solow (Constantine Cannon LLP) for All Nippon Airways. David H. Bamberger (DLA Piper LLP) for Cathay Pacific Airways. James V. Dick (Squire, Sanders & Dempsey, LLP) for China Airlines. Andrew P. Young (Kirkland & Ellis LLP) for Eva Airways. William Karas (Steptoe & Johnson LLP) for Japan Airlines International.

Companies: Air New Zealand; China Airlines; Philippine Airlines, Inc.

Cases: Antitrust CaliforniaNews