Civil Procedure – sanctions — foreign discovery

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure – sanctions — foreign discovery

A district court cannot order that foreigners be deposed in the United States as a sanction against a party.

“We conclude that the district judge exceeded his authority in ordering the location of the depositions changed to punish Boehringer. And when a discovery order ‘amount[s] to a judicial usurpation of power or a clear abuse of discretion,’ Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 371 (2004) (citations and quotation marks omitted), or otherwise works a manifest injustice, a party may petition the court of appeals for a writ of mandamus. Although the Supreme Court has refused to include discovery orders within the class of ‘collateral orders,’ which are appealable though interlocutory, see, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 103 (2009), it has made clear that mandamus provides a ‘safety valve’ enabling appellate review of such an order in the exceptional case. Id. at 111; see Ott v. City of Milwaukee, 682 F.3d 552, 554– 55 (7th Cir. 2012). This is one of those rare ‘safety valve’ cases for mandamus because of the risk of international complications arising from a U.S. judge’s having ordered foreigners to be brought to the United States to be deposed, when there is no legal authority for such an order; because alternative sanctions are readily available; and because the particular sanction punishes innocents—the inventors whom the order requires Boehringer to fly to the United States to be deposed, rather than their being deposed in nearby Amsterdam as the parties had agreed.”

Order rescinded.

13-3898 In re Petition of Boehringer Ingelheim Pharmaceuticals, Inc.

Petition for a Writ of Mandamus to the United States District Court for the Southern District of Illinois, Herndon, J., Posner, J.