By Eric Schweibenz
On March 19, 2010, ALJ E. James Gildea issued the public version of Order No. 12 in Certain Ceramic Capacitors and Products Containing the Same (Inv. No. 337-TA-692) granting a motion filed by Respondents to compel deposition of Complainants’ Japanese employees outside of Japan.

According to the Order, Respondents Samsung Electro-Mechanics Co., Ltd. and Samsung Electro-Mechanics America, Inc. (collectively, "Samsung") moved for an order compelling Complainants Murata Manufacturing Co. Ltd. and Murata Electronics North America, Inc. (collectively, "Murata") to provide their Japanese employees for deposition outside of Japan, preferably in the United States.  Samsung argued that “Murata faces almost no restrictions in obtaining discovery from Samsung, while Samsung is ‘saddled with an unreasonable number of procedural hurdles, space and facility limitations, and time constraints.’”  Specifically, Samsung raised apparent difficulties in planning and deposing Murata’s witnesses in the U.S. Consulate in Osaka and that such difficulties would not permit sufficient time to conclude depositions prior to the deadline for expert reports on April 9, 2010.  Samsung further asserted that “because Murata chose to litigate this case in the United States, it should play by the rules that apply in its chosen forum, the United States, as opposed to hiding behind the rules applicable to depositions taken in Japan.”

Murata argued that, particularly with respect to 30(b)(6) corporate depositions, that these types of depositions “can be conducted most efficiently if they are held near the corporation's headquarters, so that the witness can obtain and review documents and consult with colleagues, if necessary, during the course of the deposition for the purpose of providing complete and accurate answers to deposition questions.”  Murata also argued that the “hardships imposed on 36 Murata employees significantly outweigh any ‘hardship’ claimed by [Samsung's] attorneys.”  Finally, according to Murata, the attorneys for Samsung should have “planned for depositions in Japan as soon as they were retained to represent [Samsung].”  Murata stated that it was willing to make witnesses available outside of Japan “[t]o the extent depositions are needed of Murata witnesses and they cannot be scheduled at the U.S. Consulate in Osaka or the U.S. Embassy in Tokyo.”  The Commission Investigative Staff (“OUII”) supported Samsung’s motion, stating that the time available for depositions in Japan did not appear sufficient in view of the deadline for expert reports.  OUII also noted that “production of witnesses outside of Japan need not involve additional travel,” e.g. , “if the depositions take place at a location near Japan, such as Seoul.”

ALJ Gildea held that “the usual place of examination of a deponent, including complainants, is the place in which the deponent works or resides,” but “the moving party may defeat this presumption by showing the existence of ‘hardship or unusual circumstances,’” for example, where, “despite complainant's diligent efforts, it did not appear that complainant could meet all of the Japanese procedural requirements and schedule the depositions before the discovery cut-off date.”  ALJ Gildea additionally noted that “the complaining party is ordinarily required to make himself or herself available for examination in the district in which suit was brought.”   ALJ Gildea further noted case law stating that “because the plaintiff has chosen the forum voluntarily, [the plaintiff] should expect to appear there for any legal proceedings, whereas the defendant, ordinarily, has had no choice in selecting the action's venue.”

For the above reasons, ALJ Gildea ordered that “Murata should be compelled to produce all witnesses outside of Japan by April 2, 2010,” but only for those depositions that are “unable to be completed prior to April 2, 2010 in Japan, one week before initial expert reports are due.”