ExeGi Pharma, LLC v. Pacifici, Civil Action No. 1:21-CV-2134-TWT (N.D. Ga., Nov. 15, 2022)

Judge Thomas W. Thrash, Jr. denied a plaintiff’s request for Letters Rogatory on November 15 in the Northern District of Georgia as untimely, dilatory, and unnecessary.

The Plaintff, ExeGi Pharma, LLC, sought the oral deposition of a non-party witness located in Italy through the issuance of Letters Rogatory. Letters Rogatory are the customary process by which a party seeks help from one court to execute a judicial procedure in another country’s court.

Pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”), the Plaintiff sought Letters Rogatory from the Northern District to the central Italian authority to secure under oath the deposition of a foreign-national corporate representative in Italy.

Letters Rogatory are a lengthy process.  And, according to Judge Thrash, the possibility that it takes “often in excess of six months” did not merit judicial assistance. Order Denying Plaintiff’s Motion for Issuance of Letters Rogatory, Civil Action No. 1:21-CV-2134-TWT, at 2 (N.D. Ga. Nov. 15, 2022). Specifically, Judge Thrash noted the original scheduling order provided a nine-month window to accommodate international discovery. Yet, the Plaintiff neglected to initiate the Letters Rogatory until halfway through that period. The Plaintiff further aggrieved Judge Thrash when it sought in its motion an extension of the discovery period.

In denying the request, Judge Thrash suggested the Plaintiff will be able to “obtain most, if not all, of the letter rogatory testimony that it seeks through traditional discovery in the United States.” Order, at 2. The Plaintiff alleged in its Motion for Issuance of Letters Rogatory that the deposition information sought was “central,” “critical,” and “essential” for a “fulsome presentation of its claims.”  Plaintiff’s Motion for Issuance of Letters Rogatory, Civil Action No. 1:21-CV-2134-TWT, at 9 (N.D. Ga. Oct. 7, 2022).

The denial order shows that the timeliness of a request is an important consideration when seeking foreign discovery using Letters Rogatory. According to the U.S. Department of State, the process for Letters Rogatory may take up to a year or more. Nonetheless, the Northern District order shows it is not necessarily the drawn out process, but the time at which the request is made that may make the difference between issuance and denial.

The case remains active in the Northern District.