Boehringer Ingelheim Pharmace v. David R. Herndon
745 F.3d 216
7th Cir.2014Background
- Multi-district litigation: numerous Pradaxa failure-to-warn suits consolidated in S.D. Ill.; discovery stage.
- Plaintiffs sought depositions of 13 Boehringer employees based in Germany; parties had agreed to take depositions in Amsterdam.
- District judge imposed sanctions for discovery abuses, including nearly $1M in fines and an order requiring Boehringer to produce the 13 employees for depositions in the United States (likely New York).
- Petitioners (Boehringer) sought a writ of mandamus from the Seventh Circuit to quash the order moving deposition locations to the U.S.
- Majority (Posner) held the district judge exceeded authority by ordering depositions in the U.S. because courts generally lack subpoena power over foreign nationals abroad and Rule 30(b)(6)/Rule 37 do not authorize forcing non-party foreign individuals into the U.S.; rescinded that part of the order but denied other relief.
- Dissent (Hamilton) would deny mandamus: argued the order was a tailored, permissible discovery sanction in response to extensive bad-faith discovery conduct and corporate control over employees justified the remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court could compel foreign-resident nonparties to appear for depositions in the U.S. as a sanctions remedy | Plaintiffs: sanction moving depositions to U.S. is appropriate to punish defendants and ensure compliance | Defendants: courts lack subpoena power over foreign nationals abroad; order exceeded authority and coerced nonparties | Majority: court exceeded authority; cannot force foreign nonparties to U.S. for depositions; rescinded that portion |
| Whether Rule 30(b)(6) or 28 U.S.C. §1783 authorized the order | Plaintiffs: corporate production and forum shift permissible under court’s broad discovery/sanctions powers | Defendants: §1783 limited to U.S. citizens abroad; Rule 30(b)(6) does not cover these individuals | Held: Neither statute nor Rule 30(b)(6) furnished authority here; §1783 inapplicable to foreign nationals; Rule 30(b)(6) limits do not justify order |
| Whether mandamus was appropriate relief for interlocutory discovery sanction | Plaintiffs: mandamus appropriate due to manifest injustice and international implications | Defendants: mandamus appropriate because order was clear usurpation of power | Held: Majority: mandamus warranted as exceptional “safety valve” because order risked international complications and punished innocent nonparties; other issues denied mandamus |
| Whether district court’s sanction was a permissible exercise of Rule 37 power in response to discovery abuses | Plaintiffs: sanction fit and aimed to secure compliance and attention from executives | Defendants: sanction disproportionate and unlawful compulsion of nonparties | Dissent: sanction was proper, proportionate, and targeted; mandamus should be denied |
Key Cases Cited
- Relational, LLC v. Hodges, 627 F.3d 668 (7th Cir. 2010) (foreign nationals are beyond federal subpoena power)
- United States v. Drogoul, 1 F.3d 1546 (11th Cir. 1993) (limitations on subpoenas to witnesses abroad)
- Cheney v. United States Dist. Court for the Dist. of Columbia, 542 U.S. 367 (2004) (mandamus available for judicial usurpation or clear abuse of discretion)
- Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) (discovery orders are generally not immediately appealable; mandamus is exceptional)
- Kerr v. United States Dist. Court, 426 U.S. 394 (1976) (mandamus standards and limits)
- Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) (mandamus relief requires lack of adequate alternative remedy)
- Reise v. Board of Regents, 957 F.2d 293 (7th Cir. 1992) (discovery orders not immediately appealable)
- Ott v. City of Milwaukee, 682 F.3d 552 (7th Cir. 2012) (mandamus as a narrow safety valve; expectation to risk contempt to obtain appellate review)
- In re Whirlpool Corp., 597 F.3d 858 (7th Cir. 2010) (mandamus standards in discovery contexts)
- Republic of the Philippines v. Marcos, 888 F.2d 954 (2d Cir. 1989) (affirming severe sanctions against foreign party refusing deposition)
- Salgado v. General Motors Corp., 150 F.3d 735 (7th Cir. 1998) (discovery sanctions must be proportionate)