## Facts

- This multidistrict litigation (MDL No. 04-1616) involves class and direct actions in which plaintiffs allege urethane-industry manufacturers conspired to fix prices and allocate markets for polyether polyol products in violation of § 1 of the Sherman Act.
- Plaintiffs are direct purchasers of polyether polyol products.
- During discovery, plaintiffs sought evidence from three individuals residing in Germany: two former employees and one current employee of former defendant Bayer.
- Plaintiffs moved for issuance of letters of request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters and Federal Rule of Civil Procedure 28(b) to obtain testimony from the three German residents.
- Plaintiffs submitted proposed letters of request that included lists of questions for the German authorities to ask.
- Defendants stated they did not object in principle to examinations of the three witnesses but filed a cross-motion seeking to limit and revise the letters.
- Defendants asked the court to: (1) deny or delay issuance unless plaintiffs could show the witnesses would testify rather than assert testimonial privileges; (2) delete proposed questions that might not lead to admissible testimony; (3) request that German courts advise the witnesses of applicable German evidentiary privileges; and (4) include follow-up questions for the German court to ask if a witness asserted a privilege, along with other revisions (including adding some defense-proposed questions).

## Issues

1. Should the court issue letters of request under the Hague Evidence Convention and Rule 28(b) to obtain testimony from three witnesses located in Germany?
2. Should issuance be denied or deferred unless plaintiffs first show the witnesses will testify and not assert testimonial privileges?
3. To what extent should the court modify the proposed letters of request, including the question lists and requested procedures concerning German evidentiary privileges?

## Decision

- The court granted plaintiffs’ motion and authorized issuance of letters of request to the appropriate German authorities to obtain testimony from the three identified witnesses.
- The court declined to require, as a condition of issuance, that plaintiffs first demonstrate the witnesses would testify rather than invoke privilege.
- The court granted defendants’ cross-motion in part and denied it in part, treating it largely as a request to revise the content and form of the letters rather than a basis to block the foreign examinations.
- The court ordered that the letters be modified in certain respects, including limited revisions directed to privilege-related procedures and certain changes to the proposed questioning, while rejecting broader attempts to restrict questioning solely because testimony might be inadmissible at trial.

## Legal Principles

- Under Fed. R. Civ. P. 28(b) and the Hague Evidence Convention, a federal court may request international judicial assistance through letters of request to obtain testimony from witnesses located in a foreign signatory country.
- Whether to issue letters of request, and how to frame their contents, rests within the district court’s discretion as part of its authority to manage discovery.
- A court may revise proposed letters of request to address practical concerns about how the foreign tribunal will conduct the examination, including the handling of evidentiary privileges under foreign law.
- The possibility that a witness may assert a testimonial privilege does not, by itself, require the court to deny or postpone issuance of Hague letters; privilege questions can be addressed through the procedures used by the executing foreign authority and through targeted language in the request.
- In evaluating proposed question lists for a Hague examination, a court may remove or adjust clearly improper or unnecessary requests, but it is not required to confine discovery questions to matters certain to be admissible at trial.

## Conclusion

In this polyether polyol antitrust MDL, the District of Kansas approved use of the Hague Evidence Convention and Rule 28(b) to seek testimony in Germany from two former Bayer employees and one current Bayer employee, refused to condition issuance on proof the witnesses would not claim privilege, and partially revised the proposed letters of request to address selected objections about questions and privilege-related procedures.


In re Urethane Antitrust Litigation, 267 F.R.D. 361 (2010)