1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MASHID WADEEA, Individually and on Case No.: 24-cv-1587-H-DDL Behalf of All Others Similarly Situated, 12 ORDER DENYING WITHOUT Plaintiff, 13 PREJUDICE PLAINTIFF’S MOTION v. FOR ISSUANCE OF LETTERS 14 ROGATORY MERCEDES-BENZ USA, LLC, a 15 Delaware Corporation, [Dkt. No. 49] 16 Defendant. 17
18 Plaintiff moves for the issuance of letters rogatory directed to the appropriate judicial 19 authority of Germany requesting production of documents from third party Mercedes-Benz 20 Group AG (“Mercedes Germany”). Dkt. No. 49 (“Mot.”). Plaintiff argues this discovery is 21 necessary because Mercedes Germany has possession, custody, or control over documents 22 necessary to prove her design defect and fraud claims. Id. at 2. Defendant Mercedes-Benz 23 USA, LLC (“MBUSA”) opposes the motion as untimely, procedurally improper, and 24 undermined by the comity analysis set forth in Societe Nationale Industrielle Aerospatiale 25 v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 544 (1987). Dkt. No. 59 (“Opp’n”). The 26 Court concludes that although Plaintiff’s motion is timely and procedurally proper, it is 27 also futile considering the requirements of the Hague Evidence Convention as it has been 28 implemented in Germany. Accordingly, the Court DENIES the motion without prejudice. 1 I. 2 BACKGROUND 3 A. The Underlying Action 4 Plaintiff brings this action against MBUSA on behalf of persons who purchased 5 Mercedes-Benz S-Class vehicles of model years 2021 through 2024 (the “Class Vehicles”) 6 in California. Dkt. No. 1-2 ¶ 1 (“Compl.”). “The Class Vehicles suffer from a defect 7 affecting the 21-inch AMG wheels that causes the tires to bubble along the sidewall, leak 8 air, and blow out while driving.” Dkt. No. 21 (citing Compl. ¶¶ 34, 37-43). Plaintiff 9 purchased a 2023 S-Class vehicle on October 29, 2022. Compl. ¶ 33. Over the next six 10 months, Plaintiff brought her vehicle to authorized dealerships for repairs due to problems 11 caused by the defect at least six times. Id. ¶ 37-44. Plaintiff’s vehicle was never adequately 12 repaired or replaced, and she does not believe her vehicle is safe for normal operation. Id. 13 ¶¶ 44-45, 130. Additionally, “[b]eginning in mid-2022, consumers complained about the 14 defect affecting the Class Vehicles on internet forums and social media accounts monitored 15 by MBUSA.” Dkt. No. 21 (citing Compl. ¶¶ 74-75). Plaintiff alleges claims for: 16 (1) violations of California’s Song-Beverly Consumer Warranty Act; (2) violations of 17 California’s Unfair Competition Law; (3) breach of express warranty; (4) breach of implied 18 warranty; (5) unjust enrichment; and (6) fraudulent concealment. Id. ¶¶ 128-222. 19 B. The Discovery Dispute 20 Plaintiff moves for the issuance of letters rogatory to discover information in 21 Mercedes Germany’s possession. Mot. at 3. Plaintiff notes Mercedes Germany “is the 22 designer and manufacturer of the Class Vehicles, and distributed the Class Vehicles to and 23 through MBUSA, and therefore has valuable communications, documents, and evidence 24 regarding the claims in Plaintiff’s Complaint.” Id. Plaintiff points to several things 25 uncovered during discovery as evidence: MBUSA produced documents referencing 26 Mercedes Germany; MBUSA produced emails showing it communicates, or has access to 27 emails with, Mercedes Germany; and MBUSA objected to several of Plaintiff’s discovery 28 requests “on the basis that it does not develop, design, test, analyze, produce or 1 manufacture Mercedes-Benz vehicles or their component parts; nor does it interact with 2 suppliers.” Id. at 5-6. Plaintiff further argues the five-factor comity analysis weighs in favor 3 of issuing the letters rogatory. Dkt. No. 76 (“Reply”) at 8-9. 4 Defendant argues the motion is procedurally improper, untimely, and unreasonable. 5 First, Defendant contends that neither the Federal Rules of Civil Procedure nor the statutes 6 Plaintiff cites provide a basis for issuing letters rogatory. Opp’n at 11-12. Second, 7 Defendant contends Plaintiff has known of the need to seek discovery in Germany for at 8 least six months (when MBUSA answered the Complaint and denied that it manufactured 9 or designed the Class Vehicles), and likely even before then (when Plaintiff purchased the 10 car in October 2022 and received multiple indicia that Mercedes Germany designed and 11 manufactured the vehicle). Id. at 8-10. By waiting until three months before the close of 12 fact discovery to file a motion for letters rogatory—the response to which may take more 13 than six months—Plaintiff has failed to exercise diligence. Id. at 8. And third, Defendant 14 contends all five comity factors weigh against issuing the letters rogatory. Id. at 11-12. 15 II. 16 LEGAL STANDARDS 17 “A letter rogatory is a formal written request sent by a court to a foreign court for 18 the purpose of obtaining evidence, including depositions and documents, in a pending 19 action.” Scalia v. Int’l Longshore & Warehouse Union, 337 F.R.D. 281, 287 20 (N.D. Cal. 2020) (citing Optrics, Inc. v. Barracuda Networks, Inc., No. 17-cv-04977-RS 21 (TSH), 2019 WL 5485890, at *1 (N.D. Cal. Oct. 25, 2019) (“Parties may use letters 22 rogatory to take evidence from a specific person within the foreign jurisdiction, including 23 requests for production of documents.”)); see also Fed. R. Civ. P. 28(b)(1)(B) (providing 24 for the taking of foreign depositions through letters rogatory).1 25
26 1 All citations, subsequent history, and parallel reporter citations are omitted unless 27 otherwise noted. In direct quotes, all internal quotation marks, brackets, ellipses and 28 footnotes are omitted, and all emphasis is added, unless otherwise noted. 1 The issuance of a letter rogatory is a matter within both the authority and the 2 discretion of the Court. See Scalia, 337 F.R.D. at 288; 28 U.S.C. § 1781(a)(2). When 3 determining whether to exercise its discretion, the Court applies “Rule 28(b) in light of the 4 scope of discovery provided for by the Federal Rules of Civil Procedure.” Scalia, 337 5 F.R.D. at 288; Evanston Ins. Co. v. OEA, Inc., No. CIVS-021505DFLPAN, 2006 WL 6 1652315, at *2 (E.D. Cal. June 13, 2006) (Rule 28(b) “must be read together” with Rule 7 26(c) in determining whether to issue letters rogatory)). 8 Rule 26 provides that “parties may obtain discovery regarding any non-privileged 9 matter that is relevant to any party’s claim or defense and proportional to the needs of the 10 case, considering the importance of the issues at stake in the action, the amount in 11 controversy, the parties’ relative access to relevant information, the parties’ resources, the 12 importance of the discovery in resolving the issues and whether the burden or expense of 13 the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The scope 14 of discovery under the Federal Rules applies equally to parties and nonparties. See Fed. R. 15 Civ. P. 45, advisory committee notes to 1991 amendment, subdivision (a) (“The non-party 16 witness is subject to the same scope of discovery under this rule as that person would be as 17 a party to whom a request is addressed pursuant to Rule 34.”). 18 In addition to determining whether the requested discovery falls within the bounds 19 of Rule 26, the Court “can also consider a five-factor comity analysis.” Walther-Meade v. 20 Leidos, Inc., No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MASHID WADEEA, Individually and on Case No.: 24-cv-1587-H-DDL Behalf of All Others Similarly Situated, 12 ORDER DENYING WITHOUT Plaintiff, 13 PREJUDICE PLAINTIFF’S MOTION v. FOR ISSUANCE OF LETTERS 14 ROGATORY MERCEDES-BENZ USA, LLC, a 15 Delaware Corporation, [Dkt. No. 49] 16 Defendant. 17
18 Plaintiff moves for the issuance of letters rogatory directed to the appropriate judicial 19 authority of Germany requesting production of documents from third party Mercedes-Benz 20 Group AG (“Mercedes Germany”). Dkt. No. 49 (“Mot.”). Plaintiff argues this discovery is 21 necessary because Mercedes Germany has possession, custody, or control over documents 22 necessary to prove her design defect and fraud claims. Id. at 2. Defendant Mercedes-Benz 23 USA, LLC (“MBUSA”) opposes the motion as untimely, procedurally improper, and 24 undermined by the comity analysis set forth in Societe Nationale Industrielle Aerospatiale 25 v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 544 (1987). Dkt. No. 59 (“Opp’n”). The 26 Court concludes that although Plaintiff’s motion is timely and procedurally proper, it is 27 also futile considering the requirements of the Hague Evidence Convention as it has been 28 implemented in Germany. Accordingly, the Court DENIES the motion without prejudice. 1 I. 2 BACKGROUND 3 A. The Underlying Action 4 Plaintiff brings this action against MBUSA on behalf of persons who purchased 5 Mercedes-Benz S-Class vehicles of model years 2021 through 2024 (the “Class Vehicles”) 6 in California. Dkt. No. 1-2 ¶ 1 (“Compl.”). “The Class Vehicles suffer from a defect 7 affecting the 21-inch AMG wheels that causes the tires to bubble along the sidewall, leak 8 air, and blow out while driving.” Dkt. No. 21 (citing Compl. ¶¶ 34, 37-43). Plaintiff 9 purchased a 2023 S-Class vehicle on October 29, 2022. Compl. ¶ 33. Over the next six 10 months, Plaintiff brought her vehicle to authorized dealerships for repairs due to problems 11 caused by the defect at least six times. Id. ¶ 37-44. Plaintiff’s vehicle was never adequately 12 repaired or replaced, and she does not believe her vehicle is safe for normal operation. Id. 13 ¶¶ 44-45, 130. Additionally, “[b]eginning in mid-2022, consumers complained about the 14 defect affecting the Class Vehicles on internet forums and social media accounts monitored 15 by MBUSA.” Dkt. No. 21 (citing Compl. ¶¶ 74-75). Plaintiff alleges claims for: 16 (1) violations of California’s Song-Beverly Consumer Warranty Act; (2) violations of 17 California’s Unfair Competition Law; (3) breach of express warranty; (4) breach of implied 18 warranty; (5) unjust enrichment; and (6) fraudulent concealment. Id. ¶¶ 128-222. 19 B. The Discovery Dispute 20 Plaintiff moves for the issuance of letters rogatory to discover information in 21 Mercedes Germany’s possession. Mot. at 3. Plaintiff notes Mercedes Germany “is the 22 designer and manufacturer of the Class Vehicles, and distributed the Class Vehicles to and 23 through MBUSA, and therefore has valuable communications, documents, and evidence 24 regarding the claims in Plaintiff’s Complaint.” Id. Plaintiff points to several things 25 uncovered during discovery as evidence: MBUSA produced documents referencing 26 Mercedes Germany; MBUSA produced emails showing it communicates, or has access to 27 emails with, Mercedes Germany; and MBUSA objected to several of Plaintiff’s discovery 28 requests “on the basis that it does not develop, design, test, analyze, produce or 1 manufacture Mercedes-Benz vehicles or their component parts; nor does it interact with 2 suppliers.” Id. at 5-6. Plaintiff further argues the five-factor comity analysis weighs in favor 3 of issuing the letters rogatory. Dkt. No. 76 (“Reply”) at 8-9. 4 Defendant argues the motion is procedurally improper, untimely, and unreasonable. 5 First, Defendant contends that neither the Federal Rules of Civil Procedure nor the statutes 6 Plaintiff cites provide a basis for issuing letters rogatory. Opp’n at 11-12. Second, 7 Defendant contends Plaintiff has known of the need to seek discovery in Germany for at 8 least six months (when MBUSA answered the Complaint and denied that it manufactured 9 or designed the Class Vehicles), and likely even before then (when Plaintiff purchased the 10 car in October 2022 and received multiple indicia that Mercedes Germany designed and 11 manufactured the vehicle). Id. at 8-10. By waiting until three months before the close of 12 fact discovery to file a motion for letters rogatory—the response to which may take more 13 than six months—Plaintiff has failed to exercise diligence. Id. at 8. And third, Defendant 14 contends all five comity factors weigh against issuing the letters rogatory. Id. at 11-12. 15 II. 16 LEGAL STANDARDS 17 “A letter rogatory is a formal written request sent by a court to a foreign court for 18 the purpose of obtaining evidence, including depositions and documents, in a pending 19 action.” Scalia v. Int’l Longshore & Warehouse Union, 337 F.R.D. 281, 287 20 (N.D. Cal. 2020) (citing Optrics, Inc. v. Barracuda Networks, Inc., No. 17-cv-04977-RS 21 (TSH), 2019 WL 5485890, at *1 (N.D. Cal. Oct. 25, 2019) (“Parties may use letters 22 rogatory to take evidence from a specific person within the foreign jurisdiction, including 23 requests for production of documents.”)); see also Fed. R. Civ. P. 28(b)(1)(B) (providing 24 for the taking of foreign depositions through letters rogatory).1 25
26 1 All citations, subsequent history, and parallel reporter citations are omitted unless 27 otherwise noted. In direct quotes, all internal quotation marks, brackets, ellipses and 28 footnotes are omitted, and all emphasis is added, unless otherwise noted. 1 The issuance of a letter rogatory is a matter within both the authority and the 2 discretion of the Court. See Scalia, 337 F.R.D. at 288; 28 U.S.C. § 1781(a)(2). When 3 determining whether to exercise its discretion, the Court applies “Rule 28(b) in light of the 4 scope of discovery provided for by the Federal Rules of Civil Procedure.” Scalia, 337 5 F.R.D. at 288; Evanston Ins. Co. v. OEA, Inc., No. CIVS-021505DFLPAN, 2006 WL 6 1652315, at *2 (E.D. Cal. June 13, 2006) (Rule 28(b) “must be read together” with Rule 7 26(c) in determining whether to issue letters rogatory)). 8 Rule 26 provides that “parties may obtain discovery regarding any non-privileged 9 matter that is relevant to any party’s claim or defense and proportional to the needs of the 10 case, considering the importance of the issues at stake in the action, the amount in 11 controversy, the parties’ relative access to relevant information, the parties’ resources, the 12 importance of the discovery in resolving the issues and whether the burden or expense of 13 the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The scope 14 of discovery under the Federal Rules applies equally to parties and nonparties. See Fed. R. 15 Civ. P. 45, advisory committee notes to 1991 amendment, subdivision (a) (“The non-party 16 witness is subject to the same scope of discovery under this rule as that person would be as 17 a party to whom a request is addressed pursuant to Rule 34.”). 18 In addition to determining whether the requested discovery falls within the bounds 19 of Rule 26, the Court “can also consider a five-factor comity analysis.” Walther-Meade v. 20 Leidos, Inc., No. 22CV1777-JAH(BLM), 2023 WL 3224960, at *4 (S.D. Cal. May 3, 21 2023). The five comity factors are: 22 1. The importance to the...litigation of the of the documents or other information requested; 23 2. The degree of specificity of the request; 24 3. Whether the information originated in the United States; 4. The availability of alternative means of securing the information; 25 5. The extent to which noncompliance with the request would undermine 26 important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located. 27
Societe Nationale, 482 U.S. at 544. 28 1 “Discovery through the use of letters rogatory is consistent with the liberal discovery 2 provisions of Rule 26.” Viasat, Inc. v. Space Sys./loral, Inc., No. 12-CV-0260-H (WVG), 3 2013 WL 12061801, at *3 (S.D. Cal. Jan. 14, 2013). “No higher standard is necessary for 4 the issuance of letters rogatory than that needed for discovery upon a domestic company.” 5 Id. Thus, parties “opposing the issuance of letters rogatory must show good reason for a 6 court to deny the application.” Id. “[S]ome courts have gone so far as to hold that the party 7 opposing issuance of a letter rogatory must establish good cause for the denial.” Evanston 8 Ins. Co., 2006 WL 1652315, at *2. 9 III. 10 DISCUSSION 11 The Court briefly discusses its findings that Plaintiff’s request is procedurally proper 12 and timely. But it does not reach the comity analysis because Plaintiff’s motion is futile; 13 she seeks discovery that Germany will not provide under the Hague Convention. 14 A. Plaintiff’s request is procedurally proper. 15 Plaintiff may seek letters rogatory to request documents be produced by Mercedes 16 Germany. The Hague Convention prescribes the issuance of “a formal written request sent 17 by a [domestic] court to a foreign court for the purpose of obtaining evidence . . . in a 18 pending action.” Scalia, 337 F.R.D. at 287. Signatory nations agree that “a judicial 19 authority of a Contracting State may, in accordance with the provisions of the law of that 20 State, request the competent authority of another Contracting State, by means of a Letter 21 of Request, to obtain evidence,” and further agree to receive and act upon such written 22 requests for evidence from foreign courts. Hague Convention, art. 1 & 2. And as discussed 23 above, letters rogatory “can also include requests for the production of documents.” Dish 24 Network, L.L.C. v. Jadoo TV, Inc., No. 20-CV-01891-CRB(LB), 2020 WL 6528425, at *2 25 (N.D. Cal. June 29, 2020); Optrics, Inc., 2019 WL 5485890, at *1. 26 B. Plaintiff exercised sufficient diligence in moving for letters rogatory. 27 Defendants argue Plaintiff’s request should be denied because it “would cause an 28 inherent delay that would prejudice the opposing party.” Opp’n at 8 (quoting Cordeiro v. 1 Alves, No. 1:16-CV-23233-UU, 2017 WL 3099086, at *1 (S.D. Fla. Apr. 7, 2017)). 2 According to Defendants, Plaintiff would have known of the need to seek discovery from 3 Mercedes Germany “at the latest with the filing of MBUSA’s Answer to the Complaint on 4 January 3, 2025.” Opp’n at 9 (citing Dkt. No. 22 ¶ 35, 63 (“MBUSA denies that it 5 manufactured plaintiff’s vehicle” and “further denies that it designed [the vehicle]”)). And 6 Defendant argues Plaintiff should have known even earlier. First, the vehicle operator’s 7 manual, which Plaintiff had since October 2022, identifies the manufacturer as Mercedes 8 Germany. Dkt. No. 49-4 at 3. Second, Defendant filed a notice of related case where the 9 plaintiff alleged Mercedes Germany “designs, manufactures, and distributes automobiles” 10 and is the parent company for MBUSA. Chappell v. Mercedes-Benz USA, LLC, 24-cv- 11 1989-TWT, Dkt. No. 1 (N.D. Ga. May 7, 2024). And third, another case noted it was “well 12 taken” that “the Vehicle Identification label located in the driver’s door jamb clearly 13 identifies [Mercedes Germany] in Stuttgart, Germany, as does the vehicle’s Operators 14 Manual.” Bell v. Mercedes-Benz USA, LLC, No. 2:24-CV-01894-JLS-BFM, 2025 WL 15 1712358, at *3 (C.D. Cal. Mar. 24, 2025). 16 Even crediting each of Defendant’s points, the Court finds Plaintiff acted with 17 sufficient diligence. Plaintiff served written discovery requests on MBUSA on March 4, 18 2025, one day after the Early Neutral Evaluation. Dkt. No. 49-1 (“Ibey Decl.”) ¶ 15. After 19 Plaintiff afforded an extension to MBUSA, MBUSA responded on May 5, 2025. Id. Over 20 the next two months, Plaintiff researched the process to serve a subpoena through the 21 Hague Convention, drafted the subpoena with input from an experienced process server, 22 served on defense counsel a notice of intent to serve the subpoena, met and conferred with 23 defense counsel about the subpoena, and filed the instant motion. Id. Even before the 24 undersigned sua sponte amended the scheduling order, Plaintiff’s motion was filed with 25 nearly three months left of fact discovery. These facts are unlike the ones in cases cited by 26 MBUSA where the moving parties inexplicably wasted months, or even years, and moved 27 for letters rogatory with only weeks left in the fact discovery period. Cf. Durr Sys., Inc. v. 28 Nevoa Life Scis. Holdings, Inc., No. CV 23-529-JLH, 2024 WL 4534211, at *4 (D. Del. 1 Apr. 24, 2024) (“Even under the most favorable circumstances, it is unlikely that discovery 2 from a foreign entity could have been obtained under the Hague Convention prior to the 3 fact discovery cutoff in this case.”). Plaintiff argues her actions “align with the requirement 4 to exhaust less intrusive means before invoking international mechanisms,” here by 5 attempting first to obtain the requested information from MBUSA through Rule 34. Reply 6 at 4. The Court agrees, and concludes that her actions do not constitute a lack of diligence. 7 C. Plaintiff’s motion seeks discovery that Germany will not provide. 8 But Plaintiff’s “proposed letter of request does not comply with the requirements of 9 the Hague Evidence Convention as it has been implemented in Germany.” Valeo Schalter 10 und Sensoren GmbH v. NVIDIA Corp., No. 23-CV-05721-EKL (VKD), 2025 WL 68136, 11 at *4 (N.D. Cal. Jan. 10, 2025). As the Valeo Schalter court noted, Germany’s declaration 12 regarding its implementation of the Hague Convention states that a letter rogatory shall 13 issue “for the purpose of obtaining pre-trial discovery of documents” only if the documents 14 requested are, in relevant part, “described separately in detail” and “in the possession of a 15 party to the proceedings.” Id. (citing Declarations and Reservations, Hague Conference on 16 Private International Law, https://www.hcch.net/en/instruments/conventions/status- 17 table/notifications/?csid=502&disp=resdn); see also St. Jude Medical S.C., Inc. v. Janssen- 18 Counnote, 104 F. Supp. 3d 1150, 1168 (D. Or. 2015) (“Under Article 23 of the Convention, 19 Germany has flatly stated that ‘it will not, in its territory, execute Letters of Request issued 20 for the purpose of obtaining pre-trial discovery of documents as known in common law 21 countries.’”). Mercedes Germany is not a party to this action. Nor are the documents 22
23 2 Plaintiff cited this case at the August 19 hearing for the proposition that letters 24 rogatory may appropriately issue to Germany under the Hague Convention. Although the 25 Durr Systems court did grant in part the motion to issue letters rogatory to Germany, neither the opposing party nor the court in that case raised the futility issue. Additionally, the 26 Court’s review of the docket suggests that, for other reasons, the letters rogatory were never 27 served. See Durr Systems, 23-cv-529-JLH, Dkt. No. 97 (“IT IS ORDERED that Defendant’s request for the court to serve the letters rogatory on the foreign tribunal is 28 1 || Plaintiff seeks “described separately in detail;” rather, “categories of documents that may 2 are described collectively.” Valeo Schalter, 2025 WL 68136, at *4. Therefore, 3 || Plaintiff's motion must be denied because it does not comply with the requirements of the 4 ||Hague Convention. Accord St. Jude, 104 F. Supp. 3d at 1168 (“if a request under the 5 || Convention is likely to be fruitless, this factor counsels against requiring compliance with 6 || the Convention’) (citing Richmark Corp, 959 F.2d at 1478)). 7 IV. 8 CONCLUSION 9 For the reasons discussed above, the Court DENIES Plaintiff's motion for issuance 10 letters rogatory without prejudice. Plaintiff may refile the motion should Judge □□□□□□ 11 ruling on Plaintiff's motion for leave to amend (Dkt. No. 72) change the futility analysis. 12 13 || Dated: August 21, 2025 _— 14 Tb lho ‘Hon.DavidD.Leshner □□□□□ 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28