Pitz v. Gonzalez

Background

This Hague Convention proceeding involved four motions in limine, which are requests to decide before trial what evidence may be presented. Petitioner Christopher Pitz confirmed that his conditional motion was moot. The court had denied Respondent Inessa Gonzalez’s first motion for reasons stated at the August 20, 2025 pretrial conference and had deferred her third motion for possible consideration at trial. This order addressed Gonzalez’s second motion.

Gonzalez asked the court to exclude testimony and documents concerning German court proceedings. Alternatively, she sought a finding that Pitz had waived attorney-client privilege and work-product protection concerning Pitz’s German lawyer, Dr. Andreas Hanke, because Pitz offered Hanke’s declarations as an expert on German law.

Evidence about the German proceedings

The record included an interim German custody order issued May 8, 2025, and later correspondence from the same judge stating that the children had their habitual residence in Berlin and describing custody proceedings that remained to be completed there. Gonzalez argued that the German proceedings were fundamentally unfair and unreliable because they rested on the assumption that the children were habitual residents of Germany, an assumption she attributed to her failure to respond to documents that she said were not properly served.

Both parties agreed that habitual residence 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. It concluded that the German decisions shed little light on the factual question of where the children habitually resided. The court therefore excluded as irrelevant, or alternatively as cumulative and a waste of time under Federal Rule of Evidence 403, testimony from Hanke about the proceedings leading to Germany’s habitual-residence determination, how the German court reached that decision, and Hanke’s own opinions about whether the children were habitual residents of Germany.

The court also excluded Hanke’s opinion that Pitz had custody rights to both children under German law because the court had separately granted summary adjudication of Pitz’s right to custody under German law, making that issue no longer relevant at trial.

The court reached a different conclusion about evidence concerning possible protective or ameliorative measures. If the court determines that Germany was the children’s habitual residence and orders their return, German law and future German proceedings may be relevant to deciding whether protective measures are appropriate. The court therefore allowed documentary evidence about the German proceedings so far, testimony from Hanke about German law and custody proceedings that would occur if the children were returned, and Gonzalez’s use of Hanke’s declarations for impeachment if relevant.

Privilege and further deposition

Gonzalez sought to depose Hanke further about the German proceedings and his declarations. She argued that Pitz and Hanke had waived attorney-client privilege and work-product protection by presenting Hanke as an expert on German law.

The court discussed a similar ruling by Judge Chen in a prior related Hague Convention proceeding. That ruling distinguished between an expert’s factual account of foreign court proceedings and the expert’s opinions about the effectiveness of legal protections. The court also noted that offering a lawyer as an expert can create a risk that privilege has been waived as to communications concerning the subject matter of the lawyer’s opinions.

The court stated that federal common law generally governs privilege in federal court and that Pitz had offered no authority for applying foreign privilege law in these circumstances. It appeared possible that the court could find a waiver concerning 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 with Pitz and other details of his representation would violate his obligations under German ethical rules.

The court concluded that the likely benefit of further discovery into those communications was outweighed by its burden, even assuming that United States privilege law applied and supported a waiver finding. The court therefore denied Gonzalez’s request for a further deposition of Hanke.

Limits on trial questioning and additional evidence

The court explained that Federal Rule of Civil Procedure 26 governs discovery, not trial testimony, and that a trial court has broad authority to control trial proceedings and protect witnesses from harassment or undue embarrassment. Gonzalez could ask Hanke about prior statements to Pitz concerning the subject matter of Hanke’s declaration or trial testimony, so long as the questions did not become harassing. 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 his testimony offered by Pitz remained limited to German law and possible future German proceedings relevant to protective or ameliorative measures.

The court also 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 witness or 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 witness testified. Any new expert declaration could not exceed fourteen pages, excluding exhibits.

Ruling

Magistrate Judge A. J. Cisneros granted in part and denied in part Gonzalez’s second motion in limine. The order excluded specified evidence and opinions about the German habitual-residence decision and Hanke’s opinion about custody rights under German law, denied the request for a further deposition of Hanke, allowed limited questioning subject to Hanke’s German legal and ethical obligations, and allowed Gonzalez to offer limited additional evidence about German law and future German proceedings. This order did not decide which country was the children’s habitual residence.