The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
On February 13, 2004, Special Master David Plant, after considering
submissions from the parties, including reports of physicians, ruled that
the depositions of Georg Papst and Hans Dieter Papst should go forward
during the weeks of March 15, 2004 and March 22, 2004 in Washington, D.C.
unless counsel can arrange by March 5, 2004 for the depositions to
proceed in Germany with the Special Master in attendance. The assurance
is required because, as counsel acknowledge, the Special Master cannot
attend and participate in the depositions without the express and
unambiguous permission of the German authorities. The Court today
reviewed the submissions previously submitted to the Special Master and
then heard arguments from counsel, via conference call, with respect to
Papst's appeal to this Court from the decision of the Special Master. The
Court reaches the following conclusions:
1. The depositions of Georg Papst and Hans Dieter Papst are important
and should go forward as promptly as possible. Indeed, in view of the
concerns of counsel for Papst about their health, it is important that
their testimony be preserved.
2. In light of the Special Master's experience to date with the
depositions in this case and the conduct of counsel during depositions,
it is essential that the Special Master attend the depositions of these
important witnesses in person. Indeed, in view of the concern expressed
by counsel for Papst that the stress of a deposition for Georg Papst
might be too much for him because of his heart condition, the presence
and supervision of the Special Master can serve to alleviate such stress.
3. In view of the medical conditions of Georg Papst and Hans Dieter
Papst, the Court concurs with the Special Master and counsel that each
deponent should be deposed for half a day (three hours each, excluding
breaks) over a ten-day period.
4. If the proper assurances can be obtained, it would be preferable for
the depositions to take place in Germany or in a country close to
Germany. An alternative must be ordered, however, in the event that
counsel cannot arrange by March 5, 2004 for the depositions to proceed in
Germany or a nearby country with the express permission from that
country's authorities for the Special Master to attend and participate.
Counsel must cooperate in good faith in attempting to obtain the
necessary permission by March 5, 2004.
5. Having reviewed the submissions of the parties, the medical evidence
available, and the letters of the Special Master dated January 26, 2004
and February 13, 2004, the Court agrees with counsel for Minebea and the
Special Master that taking the deposition of Georg Papst or requiring him
to travel to the United States for deposition would not be life
threatening; neither the travel nor the deposition is precluded by his
health. Since Georg Papst is reportedly the person at Papst with
settlement authority and since mediation will soon begin in the United
States at the urging of Papst, the Court thinks it inconsistent of Papst
to argue that
Georg Papst cannot travel to the United States for a deposition but
can be available in the United States for mediation. Because Georg Papst
appears to be a key witness for Minebea, the deposition will go forward
as scheduled in Washington, D.C. during the weeks of March 15, 2004 and
March 22, 2004, unless counsel can arrange by March 5, 2004 for the
depositions to proceed in Germany or another country with the Special
Master in attendance.
6. Hans Dieter Papst's health is clearly more fragile than Georg
Papst's health. While it would be preferable to conduct his deposition
near his home and close to his doctors, the Court agrees with the Special
Master that counsel for Papst has not demonstrated that the health of
Hans Dieter Papst will be impaired if his deposition must proceed in
Washington, D.C. with testimony limited to three hours a day To the
extent that his memory has suffered as a result of his medical condition
and that he suffers from early exhaustion and loses concentration after
two or three hours, the Special Master will have the authority, in his
discretion, to authorize frequent breaks and to limit the deposition to
even less than three hours a day if the circumstances require.
Appropriate medical attention can be arranged in advance in the
Washington, D.C. area for Hans Dieter Papst if his counsel and his
doctors think it necessary. The deposition of Hans Dieter Papst will go
forward as scheduled in Washington, D.C. during the weeks of March 15,
2004 and March 22, 2004, unless counsel can arrange by March 5, 2004 for
the deposition to proceed in Germany or another country with the Special
Master in attendance.
For all of the foregoing reasons, the Court AFFIRMS the decision of the
Special Master in this matter and DENIES Papst's motion for a protective
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