Pinnacle Packaging Company, Inc. v. Constantia Flexibles GmbH, 4:12-cv-00537

Background

Plaintiffs (Pinnacle Packaging et al.) noticed depositions in New York for: Thomas Unger (Constantia CEO) and Rule 30(b)(6) corporate representatives for Constantia (Austrian) and One Equity Partners (German). Defendants moved for a protective order to quash those notices.
Constantia and One Equity have principal places of business in Austria and Germany; Unger resides in Germany (and is connected to a U.S. company in Miami). One Equity has no U.S. employees.
United States State Department/Consulate guidance: Germany permits U.S.-style depositions on consular grounds with advance governmental approval and fees; Austria generally disfavors U.S.-style depositions and permission is not generally granted.
Governing principle: general rule presumes depositions occur where the witness or corporation is located; a party seeking depositions away from that place must show unusual/peculiar circumstances to rebut the presumption.
Court found Germany amenable to Rule 28(b) depositions but Austria unlikely; balanced factors (counsel locations, travel, number of witnesses, comity, costs, likelihood of disputes) and concluded One Equity and Unger should be protected (depositions not required in U.S.), but Constantia must produce witnesses in New York because Austria’s refusal to permit U.S.-style depositions creates peculiar circumstances.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants can be compelled to produce executives / 30(b)(6) witnesses in U.S. (New York)	Plaintiffs said defendants must produce witnesses in U.S.; burden on defendants to show good cause for protective order	Defendants argued presumption that depositions occur where witnesses reside/principal place of business; plaintiffs must show unusual circumstances to require depositions in U.S.	Court: General presumption applies; plaintiffs must overcome it. One Equity and Unger: protected (no U.S. deposition). Constantia: denial of protective order for U.S. deposition.
Burden to obtain protective order / who shows good cause	Plaintiffs: defendants must show good cause for protective order	Defendants: plaintiffs must show peculiar circumstances to depart from presumption	Court: framed as fact-intensive balancing; adopted precedent requiring plaintiffs show peculiar/unusual circumstances to compel foreign deponents to U.S.
Effect of foreign comity / Hague Convention / Rule 28(b) on location	Plaintiffs: U.S. court rules should govern; but acknowledged foreign procedures matter	Defendants: foreign-law barriers and comity favor taking depositions in defendants’ countries	Held: Germany allows U.S.-style depositions under consular procedure (so U.S. deposition not necessary). Austria generally does not permit them, producing a peculiar circumstance that favors requiring Constantia witnesses to appear in U.S.
Cost, convenience, and travel balance	Plaintiffs: Europe depositions would be more expensive and slower; Austria would require rogatory process	Defendants: undue burden and expense to require intercontinental travel for witnesses	Held: costs weigh both ways; because Austria likely blocks U.S.-style depositions, equity and efficiency justify bringing Constantia to New York; no similar showing for One Equity or Unger.

Key Cases Cited

Work v. Bier, 106 F.R.D. 45 (D.D.C.) (foreign defendant subject to court’s 30(b)(6) order can be required to give deposition in U.S.)
Salter v. Upjohn Co., 593 F.2d 649 (5th Cir.) (to require foreign-resident deposition in forum, plaintiff must show circumstances distinguishing the case from ordinary run of civil cases)
In re Outsidewall Tire Litig., 267 F.R.D. 466 (E.D. Va.) (describing presumption that depositions occur at defendant’s residence/principal place and that presumption can be overcome only by distinguishing circumstances)
In re Honda Am. Motor Co., 168 F.R.D. 535 (D. Md.) (court declined to require depositions in foreign country where U.S. interests and practicality favored U.S. depositions)
Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625 (C.D. Cal.) (lists factors courts consider when deciding deposition location: counsel location, number of witnesses, dispute likelihood, travel frequency, comity, and relative costs)
In re Joseph Walker & Co., 472 B.R. 696 (Bankr. D.S.C.) (summarizes law: Rule 30/26 give court discretion to set deposition place; courts balance factors and protect against undue burden)