Pitz v. Gonzalez

Background

This Hague Convention proceeding involved four motions in limine, which are requests to decide before trial whether particular evidence may be introduced. Petitioner Christopher Pitz filed one conditional motion and later confirmed that it was moot. Respondent Inessa Gonzalez filed three motions. The court had already denied Gonzalez’s first motion for reasons stated at the August 20, 2025 pretrial conference and deferred her third motion for possible consideration at trial.

The order addressed Gonzalez’s second motion. She sought to exclude testimony and documents concerning German court proceedings. Alternatively, she sought a ruling that Pitz had waived attorney-client privilege and work-product protection concerning his German lawyer, Dr. Andreas Hanke, because Pitz offered Hanke’s declarations as an expert on German law.

Evidence about German proceedings and habitual residence

The record included a May 8, 2025 interim parental-custody order and later correspondence from the same German judge stating that the children had their habitual residence in Berlin. Gonzalez argued that the German proceedings were fundamentally unfair and unreliable because they rested on that assumption and because she said she had not been properly served with documents.

Both parties agreed that habitual residence—the main disputed issue—was for this court to decide. Pitz did not ask the court to defer to the German courts’ findings, and the court declined to do so. The court concluded that the German decisions shed little light on where the children habitually lived and excluded them for that purpose. It also excluded testimony from Dr. Hanke about the proceedings leading to the German court’s habitual-residence decision, how that court reached its decision, and Hanke’s own opinions about whether the children were habitual residents of Germany. The court alternatively described such evidence as cumulative and a waste of time under Federal Rule of Evidence 403.

The court also excluded Hanke’s opinion that Pitz had custody rights to both children under German law because it had separately granted summary adjudication of Pitz’s right to custody under German law, making that issue irrelevant at trial.

Evidence relevant to possible protective measures

The court distinguished evidence about the past German proceedings from evidence that could bear on protective or ameliorative measures if the court found that Germany was the children’s habitual residence and ordered their return. The court allowed documentary evidence about the German proceedings so far, as well as testimony from Hanke about German law and the custody proceedings that would occur if the children were returned. Gonzalez could also use Hanke’s declarations for impeachment if relevant.

The court further allowed Gonzalez to present her own witness or other evidence concerning German law or future German custody proceedings, despite her earlier failure to designate that evidence. She had to notify Pitz and the court by noon on August 22, 2025, and disclose any witness and expert declaration by noon on August 24, 2025. If she disclosed a new witness, Pitz could depose that witness for no more than two hours before the testimony. Any expert declaration was limited to fourteen pages, excluding attached exhibits.

Privilege and further deposition

Gonzalez argued that Pitz and Hanke had waived attorney-client privilege and work-product protection by offering Hanke’s declarations as an expert on German law. The court discussed a prior related proceeding in which a court found that using a lawyer as a testifying expert could waive privilege as to communications concerning the subject matter of the lawyer’s opinions.

The court stated that the use of Hanke’s opinions appeared likely to support a waiver of privilege as to prior statements Hanke made to Pitz about the legal issues addressed in Hanke’s declaration. But Gonzalez had not rebutted Hanke’s statements that disclosure of communications and other details of his representation would violate his ethical obligations under German rules. The court also found that Hanke’s anticipated testimony was limited largely to explanations of German proceedings and German law, that those matters did not appear meaningfully disputed, and that the possibility of inconsistent prior statements was speculative.

Balancing the burden and likely benefit of the requested discovery under Federal Rule of Civil Procedure 26(b)(1), the court denied Gonzalez’s request for a further deposition of Hanke.

Questions at trial

The court explained that Rule 26 does not govern trial testimony and that a trial court has broad power to control the trial. Gonzalez could ask Hanke about prior statements to Pitz concerning the subject matter of his declaration or trial testimony, so long as the questions did not become harassment. The court would not order Hanke to answer if he asserted that German law or ethical rules prevented him from doing so, at least while Pitz’s examination remained limited to German law and possible future German proceedings relevant to protective or ameliorative measures.

Disposition

Judge A.J. Cisneros granted in part and denied in part Gonzalez’s second motion in limine. The court excluded specified evidence about the German court’s habitual-residence decision and Hanke’s opinions about habitual residence and German custody rights; allowed specified evidence about German law and possible future proceedings; denied the request for a further deposition; and allowed limited trial questioning subject to Hanke’s asserted German legal or ethical obligations. The court also noted that Pitz’s motion was moot, denied Gonzalez’s first motion, and deferred Gonzalez’s third motion for possible consideration at trial.