1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THE SUCCESSOR AGENCY TO THE Case No. 17-cv-00308-WHO

FORMER EMERYVILLE

8 REDEVELOPMENT AGENCY AND THE

CITY OF EMERYVILLE, ORDER GRANTING MOTION FOR

9 ISSUANCE OF A LETTER OF Plaintiff, REQUEST UNDER THE HAGUE 10 CONVENTION v. 11 Dkt. No. 176 SWAGELOK COMPANY, et al., 12 Defendants. 13 14 INTRODUCTION 15 Plaintiffs The Successor Agency to the former Emeryville Redevelopment Agency 16 (“Successor Agency”) and the City of Emeryville (“City”) (collectively, “plaintiffs”) move for the 17 issuance of a letter of request to compel the production of documents and oral testimony from 18 sources in the United Kingdom. Dkt. No. 176. (“Mot.”). Specifically, plaintiffs seek documents 19 from Tillotson Commercial Motors Limited (“TCM”), a company incorporated in England with a 20 U.S. based division named Hanson Industries (“HI”); the oral testimony of a person most 21 knowledgeable on behalf of TCM; and the oral examination of five former executives, directors, 22 or employees of TCM and/or defendant Hanson Building Materials Limited (“HBML”). Id. 23 HBML opposes the motion. Dkt. No. 177 (“Opp.”). For the reasons outlined below, plaintiffs’ 24 motion for issuance of a letter of request is GRANTED. 25 BACKGROUND 26 A detailed background regarding this case is laid out in my January 30, 2019 Order 27 denying HBML’s motion to dismiss the Second Amended Complaint (“SAC”). Dkt. No. 143 at 1- 1 located in Emeryville, California (the “Property”), and specifically, which entities and individuals 2 are liable for the cleanup costs. See SAC. Plaintiffs allege that HBML holds successor liability 3 over the Property resulting from the 1986 acquisition of assets previously held by Smith-Corona 4 Marchant Inc. (“SCM”). SAC ¶¶ 27-28. HBML’s position in this case is that it does not hold 5 successor liability because U.S. based Hanson Industries (“HI”), a division of HBML’s wholly- 6 owned subsidiary TCM, managed the acquisition and disassembly of SCM, not HBML. Mot. at 8. 7 A. Requested Discovery 8 Plaintiffs seek documents and oral testimony relating to TCM’s corporate transactions 9 from 1985-1996 in order to determine whether TCM/HI or HBML directed and managed the 10 acquisition and disassembly of SCM, whether TCM/HI acted separately from HBML in 11 connection with corporate transactions involving SCM during that period, and the corporate 12 relationship between TCM/HI and HBML. Mot. at 8. The specific documents plaintiffs are 13 requesting are laid out in Schedule A to their proposed letter of request. See Dkt. No. 176-2 at 19- 14 22. 15 Plaintiffs also seek to take the oral depositions of five former TCM and/or HBML 16 executives, directors or employees as well as a person most knowledgeable on behalf of TCM. 17 The five individuals identified are: (1) Alan Hagdrup, a former director of TCM and a former 18 Senior Executive/Director of Hanson PLC; (2) Graham Dransfield, a former Secretary and 19 Director of TCM and former Legal Director of HBML; (3) Eric Hanson, a former Vice President 20 of Hanson Industries and a financial analyst who evaluated acquisitions and companies; (4) 21 Kenneth Ludlum, a former Director of TCM and former Hanson Group Chief Accountant and 22 Treasurer of Hanson Trust PLC; and (5) J.H. Pattison, former director of Hanson PLC and Hanson 23 Trust PLC. Mot. at 9-10. Plaintiffs have outlined the proposed topics of examination for these 24 individuals in Schedules B and C to their proposed letter of request. See Dkt. No. 176-2 at 23-26. 25 Schedule B lists the proposed categories for the depositions of the former TCM personnel, as well 26 as the TCM person most knowledgeable, and Schedule C lists the proposed categories for former 27 HBML personnel. Id. Because three of the proposed witnesses - Alan Hagdrup, Graham 1 taking one deposition of each of these individuals on the topics listed in both Schedules B and C. 2 Mot. at 10 3 LEGAL STANDARD 4 A letter of request or letter rogatory “is the request by a domestic court to a foreign court to 5 take evidence from a certain witness.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 6 247 n.1 (2004). The United States and the United Kingdom are both signatories to the Hague 7 Evidence Convention, which permits “the transmittal of a letter rogatory or request directly from a 8 tribunal in the United States to the foreign or international tribunal, officer, or agency to whom it 9 is addressed and its return in the same manner.” 28 U.S.C. § 1781, see also 23 U.S.T. 2555. 10 Judges in this district have held that motions requesting issuance of a letter of request or letter 11 rogatory should generally be granted and that “[t]he opposing party must show good reason for a 12 court to deny an application for a letter rogatory.” S.E.C. v. Leslie, C 07-03444 JF (PVT), 2009 13 WL 688836, at *2 (N.D. Cal. Mar. 16, 2009); see also Radware, Ltd. v. A10 Networks, Inc., 2014 14 WL 631537 at *2 (N.D. Cal. Feb. 18, 2014). Like all discovery, motions for letters of request are 15 subject to the standards of Rule 26(b), which provides that “[p]arties may obtain discovery 16 regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. 17 P. 26(b). “Relevant information need not be admissible at the trial if the discovery appears 18 reasonably calculated to lead to the discovery of admissible evidence.” Id. 19 DISCUSSION 20 After reviewing the parties’ briefing, plaintiffs’ proposed letter of request and plaintiffs’ 21 proposed Schedules A, B, and C, I conclude that the requested discovery is highly relevant to the 22 central issue of whether HBML has successor liability for environmental cleanup at the Property. 23 Further, the requested documents and oral depositions appear reasonably calculated to lead to the 24 discovery of admissible evidence. Plaintiffs’ document requests for TCM, laid out in Schedule A, 25 are tailored to specific, identifiable documents related to TCM’s/HI’s role in the SCM acquisition 26 and restructuring, TCM’s/HI’s role in the 1996 demerger which allegedly disposed of any liability 27 for the Property, and TCM’s/HI’s contacts with California. See Dkt. No. 176-2. And plaintiffs’ 1 personal knowledge regarding various relevant issues relating to TCM’s/HI’s and HBML’s 2 activities from 1985-1996, their involvement in the SCM acquisition and restructuring, and their 3 corporate relationship. For these reasons I conclude that plaintiffs’ requested discovery is 4 appropriate and their motion for a letter of request is GRANTED. 5 HBML makes several objections to plaintiffs’ motion, none of which are ultimately 6 persuasive. First, HBML objects to plaintiffs’ proposal to re-depose Mr. Dransfield, noting that he 7 was already deposed for a seven-hour period in his personal capacity in connection with 8 jurisdictional discovery. Opp. at 4-6. HBML argues that plaintiffs have already had a full and fair 9 opportunity to depose Mr. Dransfield on issues related to TCM and SCM and asserts that plaintiffs 10 have failed to establish good cause as required by Rule 30(d)(1) to re-open his deposition. Opp. at 11 4. While HBML is correct that a party needs good cause to depose a witness for more than a 12 single seven-hour day, here I conclude that plaintiffs have good cause to re-depose Mr. Dransfield. 13 Although Mr. Dransfield was previously deposed, the deposition was in the context of 14 jurisdictional discovery only. Plaintiffs further explain that defense counsel, appropriately, did not 15 permit questions during Mr. Dransfield’s prior deposition on non-jurisdictional issues. Dkt. No. 16 178 (“Reply”) at 7. And, while Mr. Dransfield’s deposition transcript indicates that some of 17 plaintiffs’ jurisdictional questions touched on TCM’s oversight of HI, and TCM’s role in the SCM 18 acquisition, given the central nature of these issues, they deserve further attention during merits 19 discovery. Finally, testimony from one of Mr. Dransfield’s 30(b)(6) depositions suggests that he 20 is a particularly strong witness on these subjects: He testified that he is “not [] aware of” anyone 21 else “more knowledgeable about the relationship between Hanson Industries and Tillotson 22 Commercial Motors.” Dkt. No. 177-1, (“Sangster Decl.”), Ex. C at 354:23 – 355:2. Accordingly, 23 I conclude that plaintiffs have good cause to re-depose Mr. Dransfield on the issues identified in 24 Schedules B and C of plaintiffs’ proposed letter of request. 25 Second, HBML argues that plaintiffs’ proposed depositions are improper and fail to 26 comply with Rule 26 because plaintiffs claim that they are seeking discovery relevant to whether 27 HI or HBML managed and directed the acquisition and liquidation of the SCM assets, yet they are 1 explain, and HBML does not dispute, during the relevant time period TCM and HI were not 2 distinct entities – rather HI was a division or branch of TCM. Mot. at 2. This is supported by Mr. 3 Dransfield’s prior testimony, which HBML has submitted in opposition to the motion, in which he 4 said that he believed HI was a “branch” of TCM, that HI did not have investors independent from 5 TCM investors, and that any financial statements of HI would be a part of TCM. Sanger Decl., 6 Ex. C at 427:7-23; 446:3-6. Accordingly, it appears that TCM personnel are likely to be able to 7 speak to the relationship among HI, TCM, and HBML, as well as HI’s and TCM’s corporate 8 activities. Depositions of former TCM executives, directors, and employees are therefore 9 reasonably likely to lead to admissible evidence bearing on whether HBML or HI has subsidiary 10 liability for cleanup of the Property. 11 Third, HBML argues that plaintiffs’ proposed depositions are duplicative and unduly 12 burdensome because plaintiffs already have deposed or will depose five HI employees. Opp. at 7- 13 8. HBML asserts that whether additional foreign depositions are necessary cannot properly be 14 evaluated until after these depositions are complete. Id. at 8. This argument is not convincing and 15 not practical. From a timing perspective, HBML separately warns that there may not be enough 16 time to take the proposed foreign depositions before the close of fact discovery in May 2021. 17 Opp. at 4. Given the relatively short amount of time remaining to conduct discovery, it is 18 reasonable for plaintiffs to bring this motion now, rather than wait until they have exhausted all 19 other possible sources of relevant testimony. Further, it does not appear that the proposed 20 depositions are likely to be duplicative. The proposed foreign deponents are former TCM and 21 HBML personnel who will likely have a different perspective on the relationship among HI, TCM, 22 and HBML, and different personal knowledge regarding these companies’ corporate activities and 23 involvement in the SCM acquisition and restructuring. 24 Fourth, HBML argues that plaintiffs’ proposed depositions would exceed the ten- 25 deposition limit under Rule 30(a)(2)(A)(i) and that plaintiffs have failed to make a particularized 26 showing that two additional depositions are necessary. Opp. at 8. It argues that, at minimum, if I 27 allow the extra depositions to proceed, I should order plaintiffs to bear all costs associated with the 1 additional depositions with “leave of court.” See Fed. R. Civ. P. 30(a)(2)(A)(i). Here, I believe 2 that the two additional depositions requested by plaintiffs are reasonable and proportional to the 3 needs of the case. Plaintiffs seek key testimony to clarify the relationship among HI, TCM, and 4 HBML in order to determine whether HBML holds successor liability for cleanup of the Property. 5 This central issue is the key to plaintiffs’ claims against HBML and to HBML’s defense. 6 Accordingly, I grant plaintiffs leave to exceed the presumptive ten deposition limit and to take two 7 additional depositions. Given the key nature of this discovery and that plaintiffs only seek two 8 extra depositions, I will not order plaintiffs to bear all costs of these extra depositions. 9 Fifth, with regard to plaintiffs’ document requests, HBML argues that plaintiffs should 10 first be required to formally propound the discovery requests on HBML because, as an affiliate of 11 TCM, HBML is practically able to obtain documents from TCM. Opp. at 9. However, plaintiffs 12 note that prior to filing their motion, they asked HBML if it would accept service on behalf of 13 TCM and HBML refused. Reply at 4. To the extent HBML believes that plaintiffs should be 14 required to serve the document requests on HBML directly, this suggestion makes little sense. 15 While HBML may practically be able to obtain documents from an affiliate, it is likely not legally 16 obligated to collect and produce documents in the possession, custody, and control of TCM. 17 Plaintiffs are not obligated to formally request documents from HBML in the hopes that HBML 18 voluntarily provides them. To the extent HBML is willing to voluntarily provide TCM documents 19 to plaintiffs to simplify the discovery process, I encourage HBML to do so. But this is not a 20 reason to deny plaintiffs’ motion. 21 Finally, HBML argues that plaintiffs should be required to narrow their document requests 22 “to those documents they reasonably believe exist that have not already been produced in this 23 action.” Opp. at 9. But plaintiffs explain that based on their review of produced documents to 24 date, they do not believe the requested documents have already been produced. Reply at 5. In its 25 opposition, HBML identifies only one document that it believes would be covered by the 26 document requests that was previously produced as a deposition exhibit. Opp. at 9. Plaintiffs’ 27 document requests already appear to be reasonably narrow and tailored to specific documents that 1 further narrowing is necessary. 2 CONCLUSION 3 For the reasons outlined above, plaintiffs’ motion for issuance of a letter of request is 4 GRANTED. Plaintiffs’ proposed letter of request, including Schedules, A, B, and C, will be 5 issued. 6 IT IS SO ORDERED. 7 Dated: December 1, 2020 \ 9 ® illiam H. Orrick 10 United States District Judge 11 12

15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28