[00:00:50] Speaker 03:
Okay, our final case this morning is number 16-2405, Topsnick versus United States, Mr. Magnuson.

[00:01:01] Speaker 04:
May it please the court, Charles Magnuson appearing on behalf of the appellant.

[00:01:19] Speaker 04:
Your Honor, it's submitted in this case that an overriding consideration is the impact of the Hague Convention requiring that a deposition of a German citizen be taken at the consulate in Frankfurt, Germany.

[00:01:38] Speaker 03:
And that... Pardon me, Your Honor.

[00:01:42] Speaker 03:
Even if he sues in the United States.

[00:01:45] Speaker 03:
Even what?

[00:01:46] Speaker 03:
If he sues in the United States.

[00:01:48] Speaker 04:
Well, that's an issue that has never been, to my knowledge, decided.

[00:01:55] Speaker 04:
And that's the point, that even if he is a plaintiff in a lawsuit in the United States, that the discovery proceedings differ from that of the trial proceedings.

[00:02:12] Speaker 02:
It violates the Hague Convention to ask the plaintiff

[00:02:18] Speaker 02:
from Germany to arrive at the site of the trial one week before the trial?

[00:02:24] Speaker 04:
Well, that's a discovery proceeding and that's the position of the appellant, yes, Your Honor.

[00:02:33] Speaker 04:
Because the Convention, the Council of General has explained that to not follow

[00:02:47] Speaker 04:
the discovered procedures allowed for doing so under the convention could impose criminal penalties.

[00:02:57] Speaker 03:
An individual is put in a position.

[00:02:59] Speaker 03:
If he voluntarily comes to the United States for a deposition, he's subject to criminal penalties?

[00:03:04] Speaker 04:
That's what's suggested by the Consulate General in Germany or for the United States.

[00:03:12] Speaker 04:
And he's put in a dilemma as to whether or not

[00:03:17] Speaker 04:
what he does could bring about to him criminal aspects.

[00:03:26] Speaker 04:
And I would not be in a position to... Was he testifies at the trial?

[00:03:31] Speaker 03:
Pardon me?

[00:03:32] Speaker 03:
Is it a criminal offense to testify at the trial in the case that he brought?

[00:03:38] Speaker 04:
No, Your Honor, I don't believe so.

[00:03:41] Speaker 04:
There's a difference between discovery and testimony.

[00:03:48] Speaker 04:
as the position of the appellant.

[00:03:51] Speaker 04:
And we're talking about discovery.

[00:03:53] Speaker 04:
And the discovery is very specific.

[00:03:56] Speaker 04:
And in this instance, as it happened, the government had understood that they were going to take and wanted to take the deposition of two people, one of which was the appellant, Gerd Topstich.

[00:04:14] Speaker 04:
As early as early part of 2015,

[00:04:20] Speaker 04:
The Court of Federal Acclaims was informed that those two depositions wanted to be taken.

[00:04:27] Speaker 03:
And in July... Do we have the language of the Hague Convention in the record here?

[00:04:35] Speaker 04:
Well, we have that in the appendix, Your Honor, which is information provided by the Consulate General

[00:04:49] Speaker 04:
it's the same information that was used by... We have two appendices.

[00:04:53] Speaker 03:
Which appendix and where?

[00:04:55] Speaker 04:
Well, it's both in the appellate appendix and the... Where is the language in your appendix?

[00:05:09] Speaker 03:
I'm looking at the corrected appendix for appellant.

[00:05:13] Speaker 00:
A29.

[00:05:13] Speaker 00:
A29, your Honor.

[00:05:22] Speaker 00:
That talks about voluntary debt positions in Germany.

[00:05:54] Speaker 00:
That talks about voluntary depositions in Germany.

[00:05:59] Speaker 00:
It doesn't seem to say anything about the depositions that may occur in the United States.

[00:06:11] Speaker 04:
Well, when we get to the depositions at the Counselor General on Appendix 030,

[00:06:36] Speaker 04:
to use the instructions with respect to civil cases that the depositions in civil cases will be done at the Counsel General's office in Frankfurt.

[00:06:52] Speaker 03:
But I don't see that this language suggests that a deposition in a United States case can't be conducted in the United States.

[00:07:04] Speaker 04:
Well, it does say

[00:07:05] Speaker 04:
However, Your Honor, that the German Ministry of Justice shall pre-approve all requests for depositions.

[00:07:25] Speaker 04:
That's on Appendix 029.

[00:07:27] Speaker 03:
Yeah, but that's talking about depositions taken in Germany.

[00:07:31] Speaker 03:
It's not talking about depositions taken in the United States.

[00:07:35] Speaker 04:
But that applies to a German citizen.

[00:07:39] Speaker 04:
And that's what we're talking about is a German citizen.

[00:07:42] Speaker 03:
Germany, of course, can extraterritorially control depositions of German citizens that happen to take place in the United States?

[00:07:51] Speaker 04:
Well, he's not in the United States.

[00:07:53] Speaker 04:
He's in Germany.

[00:07:54] Speaker 00:
Well, he's going to be in the United States for the trial, or at least if there is a trial, it's going to be held in the United States, right?

[00:08:02] Speaker 04:
Yes, Your Honor.

[00:08:03] Speaker 00:
Right.

[00:08:04] Speaker 00:
So what the Court of Federal Claims judge said was one week before the trial, he should make himself available for a deposition in the United States in connection with the case he brought in the United States.

[00:08:19] Speaker 00:
Correct.

[00:08:20] Speaker 00:
It's hard to see that the Hague Convention has anything to say about that deposition.

[00:08:26] Speaker 04:
Well, I'm talking about discovery, Your Honor, and irrespective of the trial date,

[00:08:33] Speaker 04:
It wouldn't matter if that deposition was taken one day, or one week, or one month, or whatever the period of time would be.

[00:08:41] Speaker 04:
There's still a deposition.

[00:08:44] Speaker 00:
Let me pose this question to you.

[00:08:47] Speaker 00:
Suppose you had a German citizen who's living in the United States, has been living in the United States for the past 10 years, a German citizen, and he brings a lawsuit against somebody for an automobile accident.

[00:09:03] Speaker 00:
In the course of that lawsuit, the lawyer for the insurance company asks for his deposition.

[00:09:10] Speaker 00:
Are you saying he has no obligation to appear for that deposition because of the Hague Convention?

[00:09:17] Speaker 04:
Well, your proposition is that he is a resident of the United States?

[00:09:22] Speaker 00:
He's a German citizen who happens to be resident in the United States.

[00:09:26] Speaker 04:
Well, that would be a different consequence, yes, Your Honor.

[00:09:28] Speaker 00:
What in the Hague Convention draws that distinction?

[00:09:32] Speaker 04:
Well, the Hague Convention applies to a German citizen who is a resident of Germany.

[00:09:37] Speaker 00:
Well, suppose then, instead of being a permanent resident alien, he is traveling in the United States and he has that accident.

[00:09:47] Speaker 00:
And he brings a suit in the state court of Oklahoma.

[00:09:51] Speaker 00:
And he says, I've been injured.

[00:09:54] Speaker 00:
I want half a million dollars.

[00:09:56] Speaker 00:
The insurance company says, okay, here's your notice of deposition.

[00:10:01] Speaker 00:
He doesn't have to appear for that?

[00:10:03] Speaker 00:
But he can prevail or bring his case anyway?

[00:10:07] Speaker 00:
Is that your position?

[00:10:09] Speaker 04:
Yes, Your Honor.

[00:10:10] Speaker 00:
OK.

[00:10:10] Speaker 00:
The second thing that, as I understand it, that the CFC judge focused on was the fact that not only did Mr. Topsnick say he wasn't going to come for the deposition, but he also said he wasn't coming for the trial.

[00:10:28] Speaker 00:
And based on those two things, she said,

[00:10:31] Speaker 00:
I don't really have much choice here.

[00:10:32] Speaker 00:
I'm going to dismiss.

[00:10:34] Speaker 00:
Does he have a right to decide whether or not he's going to come to the trial?

[00:10:39] Speaker 04:
I do not think a plaintiff is required to appear personally in a trial.

[00:10:48] Speaker 04:
I see.

[00:10:49] Speaker 04:
Okay.

[00:10:50] Speaker 04:
So in any case, you were going to appear at the trial without him?

[00:10:55] Speaker 04:
Pardon me?

[00:10:56] Speaker 00:
You were going to appear at the trial without him?

[00:11:00] Speaker 00:
Is that the plan?

[00:11:01] Speaker 04:
Well, Your Honor, that's what he said.

[00:11:04] Speaker 04:
I would insist that he do come.

[00:11:08] Speaker 04:
I think that he would be better to do so, but I don't know that he would add anything to the trial because the trial had to do with an issue as to whether or not a statute of limitation ended.

[00:11:22] Speaker 04:
The circumstances, he doesn't make the decision as to the

[00:11:26] Speaker 04:
extension of the statute of limitations.

[00:11:28] Speaker 00:
But the limitations question in turn, as I understand it, turned on the nature of his travels over the years, whether he was in the United States sporadically or for some lengthy periods of time.

[00:11:41] Speaker 00:
And that is something that he would definitely have the information that would be pertinent to, wouldn't it not?

[00:11:48] Speaker 04:
Excuse me.

[00:11:49] Speaker 04:
I apologize.

[00:11:51] Speaker 04:
No.

[00:11:51] Speaker 04:
Yes, he would have information about that, yes.

[00:12:00] Speaker 04:
But as they had done, they had taken, we had put together voluntarily a deposition of his daughter, which they wanted to take.

[00:12:15] Speaker 04:
And during the course of that deposition, there was information at that deposition, including yearly calendars that set forth when he was in the United States

[00:12:31] Speaker 04:
And that during that deposition, no questions were asked of the deponent about those particular documents that were available to the government.

[00:12:47] Speaker 04:
And so it reflects for me that they really did not have an intent

[00:12:59] Speaker 04:
to look into that aspect of the case.

[00:13:04] Speaker 04:
And moreover, they claimed that there was something about the absence of turning over travel records within the United States or a list of travel dates within the United States.

[00:13:16] Speaker 04:
And as you recall, this case was a case that started out in the Central District of California, a district court there, and the government

[00:13:28] Speaker 04:
file a motion to have that dismissed on the basis that the Court of Federal Claims had concurrent jurisdiction.

[00:13:36] Speaker 04:
And because... You're well into your rebuttal time.

[00:13:41] Speaker 03:
You're well into your rebuttal time.

[00:13:43] Speaker 03:
Do you want to save it?

[00:13:44] Speaker 04:
Okay.

[00:13:44] Speaker 04:
I'm sorry, Your Honor.

[00:13:45] Speaker 01:
Mr. Sheehan?

[00:13:59] Speaker 01:
May it please the court?

[00:14:00] Speaker 01:
I'm Anthony Sheehan.

[00:14:01] Speaker 01:
I represent the United States.

[00:14:04] Speaker 01:
The court understands from the prior dialogue the web pages reproduced in the record from the Consulate General deal with the taking of a deposition in a civil case within Germany.

[00:14:17] Speaker 01:
There is say nothing about the possibility of deposing a German plaintiff who sued in the United States to recover money from the United States entity here, the federal government.

[00:14:29] Speaker 01:
Beyond these web pages, there has never been any citation to any provision in the Hague Convention or to German law regarding any kind of penalty for a German citizen, plaintiff, attending this deposition in the United States.

[00:14:42] Speaker 01:
Moreover, this deposition was not voluntary.

[00:14:45] Speaker 01:
There were three quarter federal claims orders that would take place before, a week before the trial.

[00:14:51] Speaker 01:
Then the next one specified January 26th in Los Angeles.

[00:14:55] Speaker 01:
And then the third one denied a motion for a protective order.

[00:14:59] Speaker 01:
And finally, as the court recognized, this case turns on, the merits of the case turn on the nature of Mr. Topsnick's visits and travel, whether they were casual and temporary or general and substantial.

[00:15:13] Speaker 01:
And we certainly needed his testimony at deposition and at trial to make that determination.

[00:15:20] Speaker 01:
And if there are no further questions, the government's happy to rest on its brief.

[00:15:29] Speaker 04:
Well, on that point, there was no time and place ordered by the court with respect to a deposition in the United States.

[00:15:42] Speaker 04:
There was a order that said the deposition was to be taken in Los Angeles, but there was no time and place where that deposition was to be taken.

[00:15:53] Speaker 04:
So that was the other aspect of the case.

[00:16:01] Speaker 03:
Okay, anything further?

[00:16:03] Speaker 04:
Pardon me?

[00:16:04] Speaker 03:
Anything more?

[00:16:04] Speaker 04:
No, I think that'll do it.

[00:16:07] Speaker 03:
Okay, thank you.

[00:16:08] Speaker ?:
Thank you.

[00:16:10] Speaker 03:
The case is submitted.