Daimler-benz Aktiengesellschaft, Petitioner, v. U.S. District Court for the Western District of Oklahoma;david L. Russell, Honorable, Respondent, 805 F.2d 340 (10th Cir. 1986)

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U.S. Court of Appeals for the Tenth Circuit - 805 F.2d 340 (10th Cir. 1986)

Nov. 6, 1986

Alfred K. Morlan and Gregory K. Frizzell of Jones, Givens, Gotcher, Bogan & Hilborne, Tulsa, Okl., for petitioner.

Before McKAY, LOGAN and SEYMOUR, Circuit Judges.


Third-party defendant Daimler-Benz Aktiengesellschaft (Daimler-Benz), pursuant to Rule 21(a) of the Federal Rules of Appellate Procedure, petitions this court for a writ of mandamus ordering Judge David L. Russell of the United States District Court for the Western District of Oklahoma to recall his order directing defendant to answer interrogatories and produce documents. The sole issue on appeal is whether Judge Russell's order violates the Multilateral Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, opened for signature March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7,444, 847 U.N.T.S. 231 (Hague Convention) (entered into effect for the United States and West Germany on June 26, 1979).

Two other circuits have addressed this issue. In In re Anscheutz & Co., 754 F.2d 602 (5th Cir. 1985) petition for cert. filed, 54 U.S.L.W. 3084 (U.S. Aug. 13, 1985) (No. 85-98) (in Anscheutz & Co. v. Mississippi Lines Bridge Authority, --- U.S. ----, 106 S. Ct. 52, 88 L. Ed. 2d 42 (1985), the Supreme Court invited the Solicitor General to file a brief in this case), the Fifth Circuit held that " [t]he Hague Convention has no application at all to the production of evidence in this country by a party subject to the jurisdiction of a district court pursuant to the Federal Rules." Id. 754 F.2d at 615. The court considered discovery to take place in this country if the interrogatories are served here although the evidence may be located in another country. Id. at 611. The Eighth Circuit has adopted the Fifth Circuit's conclusions and analysis of the same issue. In re Societe Nationale Industrielle Aerospatiale, 782 F.2d 120, 124 (8th Cir.), cert. granted, --- U.S. ----, 106 S. Ct. 2888, 90 L. Ed. 2d 976 (1986). This court agrees with the decisions of both the Fifth and Eighth Circuits.

Nevertheless, the Supreme Court has granted certiorari in the Aerospatiale case, and we will issue a stay pending the Supreme Court's decision. When the Court issues its decision, the stay will be automatically dissolved. Therefore, we order Judge Russell to stay his order to compel defendant Daimler-Benz to answer plaintiffs' interrogatories or requests for production of documents until the Supreme Court issues its decision in Aerospatiale.