A California court had to decide whether it could order a corporation to produce out-of-state employees for deposition in California. The trial court required a Japanese parent company, Toyota, to produce Japanese residents for depositions in California, although the issue could apply to a non-California manufacturer anywhere in the United States or elsewhere. This practice would raise the costs of litigation even further, providing additional leverage for plaintiffs. A California law prevents out-of-state residents from being required to appear for depositions, but the court's decision created exceptions.
The NAM joined with the International Association of Defense Counsel in an amicus brief on March 31, 2011. Our brief recounted the historical basis for taking depositions of witnesses outside a country where the case is being tried. Traditionally, the courts have allowed depositions in foreign counties when the witnesses are there, and have not required travel to the court’s jurisdiction. In addition, the California statute itself does not grant the court authority to compel such travel. Even if the court had discretion to compel attendance, it should only exercise it after taking into account principles of international comity that include reciprocal courtesy when applying laws outside of territorial limits.
On July 27, 2011, the California Court of Appeal overturned the lower court's order, concluding that California law protects nonresidents from having to appear either as a witness during trial or during the discovery phase of litigation. Depositions may still occur in the states or countries where the required witnesses are located.