Volkswagenwerk Aktiengesellschaft v. Superior Court

Opinion

FRIEDMAN, J.

Plaintiffs Gorden, who are real parties in interest here, filed a personal injury action against Volkswagenwerk Aktiengesellschaft (VWAG), a German corporation, alleging defective design and manufacture of a 1966 Volkswagen automobile. Plaintiffs moved for two discovery orders: one, appointing a commissioner to take the depositions of seven Volkswagen officials or employees at Wolfsburg, Germany; the other, permitting plaintiffs to inspect and take pictures of certain departments of the Volkswagen manufacturing plant. Both proposed orders declared that refusal to comply would impel the Sacramento Superior Court to impose sanctions on VWAG.

In resisting these motions, VWAG presented to the superior court an aide-memoire from the Embassy of the Federal Republic of Germany, stating that the proposed orders would constitute an encroachment on German sovereign rights; declaring that there would be “no hesitation” to the interrogation of witnesses in Germany under “proper letters rogatory through the normal channels . . . .”

Accompanying the aide-memoire was a memorandum prepared by an expert in German law attached to the German Consulate in New York City, declaring that the threat of compulsion to force activities in Germany without permission of the German authorities would violate German sovereign and international law; that no treaty permitted depositions. in Germany under the authority of a commission issued by an American court. A third document was a letter from the United States State Depart

[506]

ment to the superior court expressing its support for the position taken by the German Embassy and offering its own services in transmitting letters rogatory to the German authorities as provided by federal law. (28 U.S.C. § 1781.)

Despite these representations, the superior court on September 29, 1972, issued the discovery orders sought by plaintiffs. VWAG filed in this court a petition for writ of mandate and/or prohibition to stay and vacate these orders. This court issued a stay and an order to show cause, setting the matter for hearing on March 21, 1973. On March 9, at plaintiffs’ request, the superior court entered an order purporting to “rescind” its discovery orders of September 29. Plaintiffs then filed a return, contending that the matter before us had become moot. VWAG has requested that we retain and decide the case, arguing that it needs protection against the expenses entailed by a repetition of plaintiffs’ efforts and that plaintiffs’ attorneys are pursuing similar efforts in a products liability action against VWAG in another country.