The Successor Agency to The Former Emeryville Redevelopment Agency and The City…

Background

The Successor Agency to the former Emeryville Redevelopment Agency and the City of Emeryville asked the court to issue a letter of request under the Hague Evidence Convention. A letter of request is a request from a court in one country to a court or authority in another country to obtain evidence.

The plaintiffs sought documents from Tillotson Commercial Motors Limited, a company incorporated in England with a U.S.-based division called Hanson Industries. They also sought testimony from a person most knowledgeable for Tillotson and oral depositions of five former executives, directors, or employees of Tillotson and/or Hanson Building Materials Limited. The requested discovery concerned corporate transactions from 1985 through 1996, including the acquisition and disassembly of assets previously held by Smith-Corona Marchant Inc., the 1996 demerger, and the relationship among Tillotson, Hanson Industries, and Hanson Building Materials.

The discovery was directed at determining whether Hanson Building Materials or Hanson Industries and Tillotson directed and managed the acquisition and disassembly, and whether Hanson Building Materials has successor liability for environmental cleanup at the property in Emeryville, California.

Legal standard

The United States and the United Kingdom are both parties to the Hague Evidence Convention. The court explained that motions seeking a letter of request are generally granted unless the opposing party shows a good reason for denial. The requested discovery also had to satisfy Federal Rule of Civil Procedure 26(b), which permits discovery of nonprivileged information relevant to a claim or defense and reasonably calculated to lead to admissible evidence.

Court’s analysis

The court concluded that the requested documents and depositions were highly relevant to the central issue of possible successor liability. It found that the document requests were tailored to identifiable materials concerning the corporate entities’ roles in the acquisition, restructuring, demerger, and contacts with California. The court also found that the proposed witnesses likely had personal knowledge about those matters.

The court rejected Hanson Building Materials’ objection to re-deposing Graham Dransfield. Although Dransfield had previously been deposed during jurisdictional discovery, the court found good cause for another deposition because the earlier questioning was limited to jurisdictional issues and did not fully address the merits-related subjects listed in the proposed schedules. The court also noted testimony indicating that Dransfield may be particularly knowledgeable about the relationship between Hanson Industries and Tillotson.

The court rejected the argument that former Tillotson personnel could not provide relevant evidence because Hanson Industries was a division or branch of Tillotson rather than a distinct entity. The court concluded that those witnesses could address the relationship among Hanson Industries, Tillotson, and Hanson Building Materials and could provide evidence relevant to potential liability.

The court also rejected objections that the depositions were duplicative or unduly burdensome. It found that the proposed witnesses could have different perspectives and personal knowledge from the previously identified witnesses. The court granted plaintiffs leave to exceed the presumptive ten-deposition limit by taking two additional depositions and declined to require plaintiffs to pay all costs for those depositions.

Finally, the court rejected the argument that plaintiffs first had to request the documents from Hanson Building Materials. The court stated that Hanson Building Materials might be able to obtain documents from its affiliate in practice but might not be legally required to collect and produce documents in Tillotson’s possession, custody, or control. The court also found the document requests sufficiently narrow and tailored.

Disposition

Judge William H. Orrick granted the plaintiffs’ motion for issuance of a letter of request. The court ordered that the proposed letter, including Schedules A, B, and C, be issued. The order concerned discovery and did not decide the underlying question of successor liability.