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United States: District Court for the District of Columbia Opinion in Laker Airways Ltd. v. Pan American World Airways, et al. (Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters; Obtaining Evidence through U.S. Procedures)*

Published online by Cambridge University Press:  04 April 2017

Abstract

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Type
Judicial and Similar Proceedings
Copyright
Copyright © American Society of International Law 1984

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Footnotes

*

[Reproduced from the text provided by the U.S. District Court for the District of Columbia.

[Another recent decision of a U.S. District Court on obtaining evidence abroad appears at I.L.M. page 757. The U.S. brief submitted to the U.S. Supreme Court in the Falzon case appears at 23 I.L.M. 412 (1984). The Supreme Court dismissed that appeal on February 21, 1984, not February 2, as indicated in the footnote to that brief.

[Other documents concerning the antitrust action of Laker

Airways Ltd. appear at I.L.M. page 727 and 23 I.L.M. 517 (1984).]

References

1/ The motion initially also concerned Swissair, but it has since been withdrawn with respect to that defendant.

2/ Lufthansa also complains that plaintiff's requests are overly broad and burdensome and that they seek irrelevant information.These boilerplate objections entirely lack merit. See generally, Hickman v. Taylor. 329 U.S. 495, 507 (1947);Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); 4A Moore's Federal Practice 133.27, pp. 33-164 ^t^ seq. There is likewise no merit to specific objections made regarding the depositions of Reinhardt Abraham, Lufthansa's vice chairman, and Herbert Culman, its former chairman.

3/ Among the documents produced were such meaningless papers as speeches by Sir Freddie Laker, newpaper clippings, and organizational charts. Many of the documents defendant refused to produce have been made freely available by this defendant in its parallel suit in Great Britain.

4/ Other defendants have been far more forthcoming. For example, the French Union de Transports Aeriens has worked out with praintiff an apparently reasonable plan for the production of documents, and a similar effort is under way between plaintiff and the Skandinavian Airlines System.

5/ Memorandum of February 15, 1984 at 35.

6/ Letter from Lufthansa to the German Minister of Transport “3ated December 6, 1983.

7/ Memorandum of March 23, 1984 at 13-15.

8/ Lufthansa Memorandum dated February 15, 1984, at 34-3 5.

9/ Any judgment in favor of plaintiff would therefore be a financial obligation of the German government.

10/ See “El-Al” Israel Airlines Limited, Service to the Netherlands, Belguim, Luxemburg, and Turkey, 14 C.A.B. §62, 964.

11/ Should the requests subsequently be narrowed as a result of the procedures prescribed in Part V below, the application to the German authorities may, of course, be at that time narrowed accordingly.

12/ At that time, the Court would appropriately take into account such matters as the various legitimate national interests, the efforts the parties had made to secure relief from the orders of other governments and courts, and their relationship with those governments. See Societe Internationale v. Rogers,357 U.S. 197 (1958); Arthur anderson & Co. v. Finesilver, supra;United States v. Vetco, 691 F.2a 1281 (9th Cir. 1981).

13/ Depending upon the procedures of the executing state, such a letter of request may permit the taking of witness depositions,interrogatories, production of documents, and the like.

14/ See T.I.A.S. 9938, Agreements Between the United States and Germanyrof February 11, 1955, January 13 and October 8, 1956,October 17, 1979, and February 1, 1980.

15/ Given Germany's ownership of Lufthansa, it is probable that this avenue would be utilized should the remaining reservations under the Convention be insufficiently effective.

17/ E.g., Cuisinarts, Inc. v. Robot Coupe, S.A. (Conn. Super.Ct. 1982).

18/ See Kolovrat v. Oregon, 366 U.S. 187, 198 (1961).

19/ It is settled law that, in the face of an apparent conflict,treaties do not invalidate federal statutes dealing with the same subject matter. See Zenith Radio Corp. v. Matsushita Electric Industrial Co., 494 F. Supp. 1263 (E.D. Pa. 19B0). The Federal Rules of Civil Procedure have the full force and effect of a statute. 28 U.S.C. { 2072; United States ex rel. Tanos v. St.Paul Mercury Insurance Co., 361 F.2d 838 (5th Cir. 1966).

20/ See Industrial Investment Development Corp. v. Mitsui Co.,”57i F.2d 876 (5th Cir. 1982); Laker Airways Ltd. v. Pan American World Airways, 559 F. Supp. 1124, 1134 (D.D.C. 1983).

21/ See Laker Airways v. Sabena, —F.2d— (D.C. Cir. March “6” 1984), slip opinion at 57-58.

22/ The various state court decisions cited by Lufthansa suffer “from the same problems as the Solicitor General's brief, and they are for that reason no more persuasive.

23/ Laker Airways Ltd. v. Pan American World Airways, 577 F. supp. 348, 354-55 (D.D.C. 1983); Laker Airways Ltd. v. Pan American World Airways, supra, 559 F. Supp. at 1138-39.

24/ The relationship between the Falzon case in the Supreme “Court and the decision of the German Minister under the Hague Convention and under German law is mystifying.

25/ This will provide the German authorities some 20 weeks from “the Supreme Court's action in Falzon.

26/ Each side has asked for the assessment of costs against the ether. The request of Lufthansa is denied as frivolous. The Court will defer plaintiff's request for costs and attorney's fees pending defendant's record of compliance with the Federal Rules and the orders of the Court following the present ruling,as well as the reasonableness with which it negotiates hereafter with plaintiff regarding discovery. Should the entry of an order to compel become necessary, the Court will at that time further consider the issue of costs in light of Rule 37, Fed. R. Civ. P.