Appendix — Exportadora de Sal, S. A. de C. V. v. Sugimoto

(eee Com, OE |

EI LK

NOV 1 7 894

No. A 94-651 ores we WMH

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

EXPORTADORA DE SAL, S.A. DE C.V.,

Petitioner,

VS.

HIROKO SUGIMOTO, et al.

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

APPENDIX TO RESPONDENTS’ SUPPLEMENTAL

BRIEF IN REPLY TO BRIEF OF AMICUS

CURIAE UNITED MEXICAN STATES AT THE

PETITION STAGE

Robin E. Foor

Counsel of Record

Law Offices of Robin E. Foor

2843 Alhambra Drive

Belmont, California 94002

415-591-5390

Counsel for Respondents

a eae =

Table of Contents

Excerpt of Recorder’s Transcript of

Proceedings, Schoenberg v. Exportadora

De Sal, S.A. De C.V,, CA No. 89-55973,

Ninth Circuit, Oral Argument of

Interlocutory Appeal, Pasadena,

eS)

Third Request for Production of Documents

from Exportadora De Sal, S.A. De C.V.,

es. ces wales bee was

Order Vacating Protective Order and

Compelling Depositions and Production

of Documents from Exportadora,

eR en

Notice of Taking the Depositions

of Juan Bremer, Isamu Hina, and

Exportadora De Sal, S.A. De C.V.,

ae

Order Compelling Discovery and

Determining Discovery Scheduling

re

Certified Translation of Preamble

and Article XII of Federal Registry

of United Mexican States of

SE I as was ceo cckccebseevccees

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOREEN S. SCHOENBERG, _) CA No. 89-55973

et al., ) CA No. 90-55073

) Consolidated

) DC Consolidated Cases

Plaintiffs-Appellees ) Civil 88-1530 R (IEG)

) 88-1531 R (IEG)

) 88-1532 R (IEG) .

EXPORTADORA DE SAL, ) 88-1919 R (IEG)

S.A. DE C.V., ) 88-1920 R (IEG)

)

)

)

VS.

Defendant-Appellant.

Honorable William C. Canby, Circuit Judge

Honorable Pamela A. Rymer, Circuit Judge

Honorable David F. Levy, District Judge

Excerpt of Recorder’s Transcript of Proceedings

Pasadena, California

Wednesday, March 6, 1991

289

Appearances:

For Defendant-Appellant Exportadora De Sal, S.A. De

LW

L. Scott Keehn, Esq.

John Stephens, Esq. (Argued)

Robbins & Keehn

530 "B" Street, Suite 1700

San Diego, CA 92101

Telephone: 619-232-1700

For Plaintiffs-Appellees:

Gerald C. Sterns, Esq. (Argued)

Sterns, Walker & Lods

100 First Street, Suite 2300

San Francisco, CA 94105

Telephone: 415-543-2300

Robin E. Foor, Esq. (Argued)

Law Offices of Robin E. Foor

2843 Alhambra Drive

Belmont, CA 94002

Telephone: 415-591-5390

290

DA he ER Ne PEI 8 ale ae Gorse

cernietemetitn inte teh a CPC Te

(RT 7:23 - 8:12)

THE COURT (JUDGE RYMER): I think the District

Judge’s finding was that they were requested to do it, and

they did it.

MR. STEPHENS: Well, I think he also - -

THE COURT (JUDGE RYMER): There is a slight

difference.

MR. STEPHENS: There’s a request - - I think there’s a

distinction simply between instruction and request, but my

reading is that - - and I would have to go back through his

opinion again, that he used the word instructed.

But there’s one other point that I think should be

made, and it’s unfortunate that it comes up at the time that

it does. J have recently come into possession of an official

diary from the Mexican government. It’s I think the equivalent

of a federal register or Congressional digest, but in any event it

does refer to what is intended between Mexico and Japan, and

I would be happy to get this to the Court with an official

translation, but I couldn’t do it under the circumstances

existing at the time that I received it because the time was

inappropriate.

z*> ss s 8

291

GERALD C. STERNS

DENNIS R. LODS

STERNS, WALKER & LODS

100 First Street, Suite 2300

San Francisco, CA 94105 [Filed June 27, 1991}

Tel: 415-543-2300

Fax: 415-543-0152

ROBIN E. FOOR State Bar No. 64084

LAW OFFICES OF ROBIN E. FOOR

2843 Alhambra Drive

Belmont, CA 94002

Tel: 415-591-5390

Fax: 415-593-4622

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DOREEN S. SCHOENBERG,

et al.,

Consolidated

Civil No.

88-1530 R(IEG)

88-1531 R(IEG)

88-1532 R(IEG)

88-1919 R(IEG)

Plaintiffs, 88-1920 R(IEG)

)

)

)

)

)

)

)

VS. )

) THIRD REQUEST

) FOR PRODUCTION

) OF DOCUMENTS

) FROM EXPORTA-

) DORA DE SAL, S.A.

) DE CV.

)

EXPORTADORA DE SAL,

S.A. DE C.V., et al.,

Defendants.

292

Propounding Parties: PlaintiffS DOREEN SCHOENBERG,

et al.

Responding Party: Defendant EXPORTADORA DE SAL,

S.A. DE C.V., et al. ("Exportadora")

Set: Three

TO DEFENDANT EXPORTADORA DE SAL, S.A. DE

C.V. AND ITS ATTORNEYS OF RECORD:

You are hereby requested, pursuant to Rule 34 of

the Federal Rules of Civil Procedure, to produce for

inspection and copying at the offices of Exportadora,

Avenida Baja California S/N, Guerrero Negro, B.C.S.,

Mexico 23940, on a date to be set by the courts of Mexico

pursuant to Letters of Request under the Hague

Convention, or within a reasonable time after the service of

this request for documents under Rule 34, at 9:30 a.m., the

documents described in this request. If you fail to produce

these documents in Guerrero Negro, Mexico by August 16,

1991, you are requested to produce these documents at the

offices of Alexander & Sauner, 610 West Ash Street, Suite

1006, San Diego, CA 92101 on August 19, 1991 at 9:30 a.m.

You are further required to serve upon plaintiffs,

pursuant to Rule 34 of the Federal Rules of Civil

Procedure, not later than 30 days after the service of this

request, a written response as required by Rule 34(b). The

response must contain, for each of the categories listed in

this request, a statement that inspection and related

activities will be permitted as requested, unless the request

is objected to, in which case the specific reasons for each

objection shall be stated.

If any document described in this request was, but

no longer is in your possession, or subject to your custody

or control, or in existence, state whether: 1) it is missing or

293

lost; 2) it has been destroyed; 3) it has been transferred

voluntarily or involuntarily to others; or 4) it has been

disposed of otherwise. In each instance, explain the

circumstances surrounding such disposition and identify the

person(s) authorizing the same, and the date(s) of such

authorization, loss, destruction, transfer and/or disposition.

Identify each document by listing its author, his or her

address, type of document (e.g., letter, memorandum,

telegraph, photograph, tape recording, video tape, etc.),

date, subject, present location(s), custodian(s), and state

whether the document(s) or copies are still in existence.

If you object to the production of any documents

because of the attorney-client privilege, the work-product

doctrine, or any other privilege applicable to a document,

identify each document for which the privilege is claimed

and give the following information: (a) the name of the

writer or initiator of each copy of the document; (b) the

name of the recipient, addressee, or party to whom each

copy of the document was sent, if any; (c) the date of each

copy of the document, if any, or if no date appears on the

document, an estimate thereof, indicated as an estimate;

(d) a description of the document; and, (e) a statement of

the basis of the claim of privilege.

DEFINITIONS AND INSTRUCTIONS

a. The word "document" is used in its broadest sense

and means the original and any and all copies of any and

all written, printed, typed, tape recorded, videotaped,

electronically recorded, magnetically recorded or stored, or

otherwise recorded, memorialized, or stored, however

produced or reproduced, or every kind or description,

in whatever form (including final and all draft versions) in

your actual or constructive possession, custody or control,

including, but not limited to, all writings, contracts,

294

ee )

policy statements, manuals, telephone messages, checks,

correspondence, letters, telegrams, telexes, mailgrams,

electronic messages, E-mail messages, computer network

messages, minutes of any meetings, agendas,

memorandums, interoffice communications, reports, studies,

schedules, airplane flight schedules, forecasts, project

analyses, working papers, charts, expense account reports,

ledgers, journals, financial statements, statements of

account, calendars, appointment books, diaries, drawings,

drafts, photographs, sound recordings, tape recordings,

videotapes, electronic recordings, magnetic recordings or

magnetic storage (including computer media of floppy disks

or hard disks or tapes), computer logs, computer print outs,

computer documents, or any other tangible tning which

constitutes, contains or pertains to matters within the scope

of Rule 1001 of the Federal Rules of Evidence. The term

“document” also means originals, duplicates, and copies of

all of the above upon which notations in writing,

print or otherwise have been made which do not appear on

the originals.

b. The following categories each include all

attachments to the specifically described documents, and all

envelopes, explanatory notes or memorandums, and all

material that accompanied the document. If the specific

document elicited a response, that response is included in

the category. If the document itself is was a response, the

document to which it is responding is included in the

category.

c. The singular shall be deemed to include the

plural, and vice versa so as to bring within the scope of this

request all documents which might otherwise be construed

to be outside its scope.

d. All documents shall be segregated in accordance

295

with the numbered paragraphs herein.

e. "Subject aircraft" refers to that certain Cessna

340A, Mexican Registration No. XA-KOA, Serial No. 978,

which crashed near the U.S. - Mexican border, in San

Diego County, California on September 30, 1987.

f. The time for which responses are requested is

January 1, 1985 to the date of your response to this request,

unless otherwise indicated.

CATEGORIES OF DOCUMENTS

1. Documents pertaining to Japanese individuals

traveling to Mexico from March 1, 1987 through December

31, 1987, including:

(a) the inter-company account between Exportadora

and Mitsubishi Corp. or any of its subsidiary or reiated

companies (collectively "Mitsubishi" herein);

(b) hotel reservations;

(c) Exportadora’s account with the Westgate Hotel;

(da) travel plans, providing of transportation for, or

providing of accommodations for, Japanese individuals

traveling to Mexico;

(e) telex messages.

2. Documents pertaining to communications with

Mitsubishi about the sponsorship of the agricultural project

(the "agricultural project"), including communications about

transportation or accommodations for the Japanese

passengers, whose survivors are the plaintiffs, from January

1, 1987 through December 31, 1987.

3. Documents pertaining to the purchasing by

Exportadora of pumps, pump parts, maintenance and

services from Prime Pump Company ("Prime Pump") from

296

ities s..

January 1, 1987 to date, including invoices, purchase orders

and communications about purchasing.

4. Documents concerning the travel arrangements, if

any, and accommodations, if any, for each passenger for their

trip from San Diego to Guerrero Negro, and from Guerrero

Negro to San Diego, in September 1987, including documents

received by Exportadora, documents created by Exportadora,

and documents requesting that transportation be provided to

the passengers.

5. Documents concerning meetings, if any, between

each of the passengers and employees of Exportadora.

6. Documents that pertain to any assistance by the

government of Mexico to the agricultural project.

7. Documents pertaining to any request and/or

instruction by the government of Mexico to Exportadora to

assist the agricultural project, including documents pertaining

to any request and/or instruction to Exportadora to provide

transportation or accommodations to people traveling to the

agricultural project.

8. Documents pertaining to reimbursement paid to

Exportadora for Exportadora’s assistance to the agricultural

project.

9. Documents concerning the purposes of the

agricultural project.

10. Documents concerning the charter agreement

between Exportadora and the charter air company, Aviones

De Sonora, S.A. (herein "Aviones"), and communications

with the charter air carrier pertaining to the flight, for the

flight of September 30, 1987.

297

11. Documents concerning items sent by

Exportadora on the chartered airplane on the morning of

September 30, 1987.

12. Documents concerning refueling, if any, of the

airplane at Guerrero Negro.

13. Documents concerning the reason the

Exportadora airplane was sent to Mexico City and was not

available for the flight on the morning of September 30,

1987.

14. Documents concerning communications to the

passengers that a chartered airplane would be used for the

return flight to Tijuana instead of the Exportadora

corporate airplane.

15. Documents concerning the weather on the night

of September 29, 1987 in Guerrero Negro, and the location

of the chartered airplane during the night of September 29,

1987.

16. Documents concerning information about the

weather in Tijuana obtained by the pilot in Guerrero Negro

the morning of September 30, 1987.

17. Documents concerning preflight instructions, if

any, from Exportadora to the pilot of the chartered

airplane.

18. Photographs of the chartered airplane on the

morning of September 30, 1987 before it departed

Guerrero Negro.

19. Documents pertaining to the airplane accident,

298

Seda salina

including photographs of the scene of the accident in San

Diego.

20. Documents concerning the removal by

Exportadora of the San Diego office of Exportadora from

the State of California, including documents concerning the

reorganization of the operations of the San Diego office.

21. Documents concerning the home addresses,

telephone numbers, and current employers of the following

former employees of the Exportadora San Diego office:

(a) Victor Garcia,

(b) Alicia Gasteleum,

(c) Alejandro Bremer,

(d) Cipriano (warehouseman),

(e) Jesus (warehouseman).

22. Documents concerning agents, consultants,

subsidiaries and affiliates employed by Exportadora in the

State of California.

23. Documents concerning Exportadora’s insurance

policies for transportation accidents in September 1987,

including insurance policies for Exportadora’s own airplane.

Dated: June 21, 1991

Belmont, California

_/S/

Robin E. Foor

Attorneys for Plaintiffs

299

GERALD C. STERNS SBN 029976

DENNIS R. LODS SBN 071709

STERNS, WALKER & LODS

100 First Street, Suite 2300

San Francisco, CA 94105

Tel: 415-543-2300 [Filed November 21, 1991]

Fax: 415-543-0152

ROBIN E. FOOR SBN 64084

LAW OFFICES OF ROBIN E. FOOR

2843 Alhambra Drive

Belmont, CA 94002

Tel: 415-591-5390

Fax: 415-593-4622

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DOREEN S. SCHOENBERG, ) Consolidated

et al., ) Civil No. 88-1530 R (P)

88-1531 R (P)

88-1532 R (P)

88-1919 R (P)

88-1920 R (P)

ORDER VACATING

PROTECTIVE ORDER

AND COMPELLING

)

)

)

Plaintiffs, )

)

)

EXPORTADORA DE SAL, ) DEPOSITIONS AND

)

)

)

)

-)

)

)

VS.

S.A. DE C.V., et al., PRODUCTION OF

DOCUMENTS FROM

EXPORTADORA

Date: November 19, 1991

Time: 8:30 a.m.

Place: Courtroom 12

Honorable

Louisa S. Porter

Defendants

The plaintiffs’ motion to vacate protective order, to

300

compel attendance at depositions and to compel production

of documents came on for a hearing on November 19, 1991

in the above-entitled court, the Honorable Louisa S. Porter

presiding. Considering the motion, the materials in support,

the opposition, the reply, and the arguments of counsel, the

court finds that:

1. There is good cause to vacate the prior protective

order.

2. The Hague Convention on the Taking of Evidence

Abroad in Civil or Commercial Matters,

Signature, March 18, 1970, 23 U.S.T. 2555, T.LA.S. No.

7444 (the "Hague Evidence Convention") is a permissive

supplement to the Federal Rules of Civil Procedure, not a

replacement for the Federal Rules. The case of Societe

Court, 482 U.S. 522, 544, 96 L.ed.2d 461, 484, 107 S.Ct.

2542 (1987) sets forth a three-part test of whether to resort

to the procedures of the Hague Evidence Convention,

requiring ". . . scrutiny in each case of the particular facts,

sovereign interests, and likelihood that resort to these

procedures will prove effective."

3. In the present case, resort to the procedures of

the Hague Evidence Convention has proven to be

ineffective for discovery in Mexico. The protective order

issued in this case required that depositions in Mexico

under the procedures of the Hague Evidence Convention

be conducted on oral examination, governed by the Federal

Rules of Civil Procedure of the United States of America.

The recent deposition taken in Hermosiilo, Sonora, Mexico,

was not governed by the Federal Rules of Civil Procedure.

The experience of the parties to this case in attempting to

take depositions in Hermosillo shows that the procedures of

the Hague Evidence Convention are ineffective.

4. The San Diego area is a legitimate location for

depositions in this case, considering the particular facts of

301

the case. The accident occurred in the San Diego area,

some of the witnesses travel to the San Diego area

frequently, and defendant Exportadora De Sal, S.A. De

C.V. ("Exportadora") does business in San Diego. The

Exportadora corporate jet travels regularly each week

round-trip from Guerrero Negro to Tijuana, Mexico, near

San Diego.

5. The United States Court of Appeals for the Ninth

Circuit decided in this case that Exportadora was not

engaged in public activity of a governmental nature, but

was engaged in commercial activity.

Schoenberg v.

Exportadora De Sal, $.A, De C.V,, 930 F.2d 777 (9th Cir.

1991).

6. Mexican law does not prohibit the taking of

depositions from the employees of Exportadora, nor the

production of documents from Exportadora, in this case.

This case is a private matter under Mexican law, as decided

by the opinion of the Ninth Circuit. Fed.R.Civ.P. 44.1.

7. Depositions and the production of documents from

Exportadora in this case under the Federal Rules of Civil

Procedure may take place either in San Diego or at the

American Consulate in Tijuana, Baja California North,

Mexico. Accordingly,

IT IS ORDERED, that:

1. The Modified Protective Order issued by this

Court on June 18, 1990 is vacated;

2. Exportadora shall produce witnesses noticed for

depositions either in San Diego, California or at the

American Consulate in Tijuana, before December 16, 1991;

3. Exportadora shall produce the documents requested

by plaintiffs either in San Diego, California or at the

American Consulate in Tijuana, before December 16, 1991;

302

4. The depositions shall be on oral examination. The

depositions and the production of documents shall proceed

according to the Federal Rules of Civil Procedure, and the

Federal Rules of Evidence, of the United States of America.

Dated: November _, 1991

San Diego, California

/s/

Louisa S. Porter

United States Magistrate

303

GERALD C. STERNS SBN 29976

DENNIS R. LODS SBN 71709

STERNS, WALKER & LODS

100 First Street, Suite 2300

San Francisco, CA 94105 [Filed December 6, 1991]

Tel: 415-543-2300

Fax: 415-543-0152

ROBIN E. FOOR SBN 64084

LAW OFFICES OF ROBIN E. FOOR

2843 Alhambra Drive

Belmont, CA 94002

Tel: 415-591-5390

Fax: 415-593-4622

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DOREEN S. SCHOENBERG, ) Consolidated

et al., ) Civil No. 88-1530 R (P)

) 88-1531 R (P)

) 88-1532 R (P)

) 88-1919 R (P)

Plaintiffs, ) 88-1920 R (P)

)

VS. ) NOTICE OF TAKING

) THE DEPOSITIONS OF

EXPORTADORA DE SAL, ) JUAN BREMER, ISAMU

S.A. DE C.V., et al., ) HINA, AND EXPORTA-

) DORA DE SAL, S.A.

Defendants. ) DE C.V.

)

)

304

TO DEFENDANTS AND THEIR ATTORNEYS OF

RECORD:

PLEASE TAKE NOTICE THAT the plaintiffs will

take the depositions of the following witnesses on the dates

and times stated. pursuant to Rule 30 of the Federal Rules

of Civil Procedure, at the offices of Greco & Traficante,

750 "B" Street, Suite 2740, San Diego, CA 92112-0670. The

depositions will take place before a person authorized to

administer oaths, and authorized to transcribe depositions,

and shall continue from day to day, excluding weekends

and holidays, until completed or continued.

Wi L a eee

Exportadora De Sal, December 12, 1991 9:00 a.m.

S.A. De C.V.

Juan Bremer December 13, 1991 9:00 a.m.

Isamu Hina December 13, 1991 2:00 p.m.

Exportadora De Sal, S.A. De C.V. ("Exportadora") is

required, under Rule 30(b)(6) of the Federal Rules of Civil

Procedure, to designate a person or persons to testify

concerning the following subjects:

(1) the travel arrangements for the passengers;

(2) the chartering of the airplane;

(3) the loading of the airplane;

(4) the preflight instructions to the pilot;

(5) the information given to the pilot about the

weather; and,

(6) the agricultural project.

Exportadora is required, under Rule 30(b)(5) and

305

iia ities

Rule 34 of the Federal Rules of Civil Procedure to produce

the following categories of documents at the depositions:

1. Documents pertaining to Japanese individuals

traveling to Mexico from March 1, 1987 through December

31, 1987, including:

(a) the inter-company account between Exportadora

and Mitsubishi Corp. or any of its subsidiary or related

companies (collectively "Mitsubishi" herein);

(b) hotel reservations;

(c) Exportadora’s account with the Westgate Hotel;

(d) travel plans, providing of transportation for,

or providing of accommodations for, Japanese individuals

traveling to Mexico;

(e) telex messages.

2. Documents pertaining to communications with

Mitsubishi about the sponsorship of the agricultural project

(the "agricultural project"), including communications about

transportation or accommodations for the Japanese

passengers, whose survivors are the plaintiffs, from January

1, 1987 through December 31, 1987.

3. Documents pertaining to the purchasing by

Exportadora of pumps, pump pz -., maintenance and

services from Prime Pump Company ("Prime Pump") from

January 1, 1987 to date, including invoices, purchase orders

and communications about purchasing.

4. Documents concerning the travel arrangements, if

any, and accommodations, if any, for each passenger for their

trip from San Diego to Guerrero Negro, and from Guerrero

Negro to San Diego, in September 1987, including documents

received by Exportadora, documents created by Exportadora,

and documents requesting that transportation be provided to

the passengers.

5. Documents concerning meetings, if any, between

each of the passengers and employees of Exportadora.

6. Documents that pertain to any assistance by the

government of Mexico to the agricultural project.

7. Documents pertaining to any request and/or

instruction by the government of Mexico to Exportadora to

assist the agricultural project, including documents pertaining

to any request and/or instruction to Exportadora to provide

transportation or accommodations to people traveling to the

agricultural project.

8. Documents pertaining to reimbursement paid to

Exportadora for Exportadora’s assistance to the agricultural

project.

9. Documents concerning the purposes of the

agricultural project.

10. Documents concerning the charter agreement

between Exportadora and the charter air company, Aviones

De Sonora, S.A. (herein "Aviones"), and communications

with the charter air carrier pertaining to the flight, for the

flight of September 30, 1987.

11. Documents concerning items sent by

Exportadora on the chartered airplane on the morning of

September 30, 1987.

12. Documents concerning refueling, if any, of the

airplane at Guerrero Negro.

13. Documents concerning the reason the

Exportadora airplane was sent to Mexico City and was not

available for the flight on the morning of September 30,

307

3

4

acai

1987.

14. Documents concerning communications to the

passengers that a chartered airplane would be used for the

return flight to Tijuana instead of the Exportadora

corporate airplane.

15. Documents concerning the weather on the night

of September 29, 1987 in Guerrero Negro, and the location

of the chartered airplane during the night of September 29,

1987.

16. Documents concerning information about the

weather in Tijuana obtained by the pilot in Guerrero Negro

the morning of September 30, 1987.

17. Documents concerning preflight instructions, if

any, from Exportadora to the pilot of the chartered

airplane.

18. Photographs of the chartered airplane on the

morning of September 30, 1987 before it departed

Guerrero Negro.

19. Documents pertaining to the airplane accident,

including photographs of the scene of the accident in San

Diego.

20. Documents concerning the removal by

Exportadora of the San Diego office of Exportadora from

the State of California, including documents concerning the

reorganization of the operations of the San Diego office.

21. Documents concerning the home addresses,

telephone numbers, and current employers of the following

former employees of the Exportadora San Diego office:

308

(a) Victor Garcia,

(b) Alicia Gasteleum,

(c) Alejandro Bremer,

(d) Cipriano (warehouseman),

(€) Jesus (warehouseman).

22. Documents concerning agents, consultants,

subsidiaries and affiliates employed by Exportadora in the

State of California.

23. Documents concerning Exportadora’s insurance

policies for transportation accidents in September 1987,

including insurance policies for Exportadora’s own airplane.

- Dated: December 4, 1991

Belmont, California

/s/

Robin E. Foor

Attorneys for Plaintiffs

309

GERALD C. STERNS SBN 029976

DENNIS R. LODS SBN 071709

STERNS, WALKER & LODS

100 First Street, Suite 2300

San Francisco, CA 94105

Tel: 415-543-2300

Fax: 415-543-0152 [Filed January 15, 1992]

ROBIN E. FOOR SBN 64084

LAW OFFICES OF ROBIN E. FOOR

2843 Alhambra Drive

Belmont, CA 94002

Tel: 415-591-5390

Fax: 415-593-4622

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

DOREEN S. SCHOENBERG, ) Consolidated

et al., ) Civil No. 88-1530R(P)

| 88-1531R(P)

)

) 88-1532R(P)

) 88-1919R(P)

Plaintiffs, ) 88-1920R(P)

VS. ) ORDER

) COMPELLING

) DISCOVERY AND

EXPORTADORA DE SAL, ) DETERMINING

S.A. DE C.V., et al., ) DISCOVERY

) SCHEDULING

) Date: December 19, 1991

Defendants. ) Time: 11:00 a.m.

) Place: Courtroom 12

) Honorable

Louisa S. Porter

310

A discovery conference was held to discuss discovery

disputes, on December 19, 1991 at 11:00 a.m. in the above-

entitled cuurt, the Honorable Louisa S. Porter presiding.

Considering the issues presented, good cause appearing,

IT IS ORDERED that:

1. This Court confirms the order of Judge Gonzalez

of August 24, 1990,

2. Under the order of August 24, 1990, defendant

Exportadora De Sal, S.A. De C.V. ( "Exportadora") was

compelled to produce:

‘l. All documents pertaining to Japanese individuals

traveling to Mexico from March 1, 1987 through December

31, 1987, including:

(a) the inter-company account between Exportadora

and Mitsubishi Corp. or any of its subsidiary or related

companies (collectively "Mitsubishi" herein);

(b) hotel reservations;

(c) Exportadora’s account with the Westgate Hotel:

(d) travel plans, providing of transportation for, or

providing accommodations for Japanese individuals traveling

to Mexico;

(e) telex messages."

3. The law firm of Greco & Traficante, counsel of

record for Exportadora, is ordered to diligently search for, and

to produce by January 13, 1992, additional documents that

have not been produced, responsive to the above-quoted

language of the order of August 24, 1990, including, but not

limited to:

(a) hotel reservations, hotel bills, and Exportadora’s

account with the Executive Hotel;

(b) passenger manifests, passenger lists, company

airplane schedules, travel plans and telex messages;

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(c) schedules for the company airplane to destinations

other than Tijuana or Guerrero Negro, such as Mexico City;

(d) documents pertaining to a meeting of the Board of

Directors of Exportadora on or about September 30, 1987.

4. Exportadora shall produce all documents

pertaining to a meeting of the Board of Directors of

Exportadora on or about September 30, 1987, including:

(a) schedules for the meeting, and notices sent to

anyone concerning the meeting;

(b) schedules, passenger lists, and documents

pertaining to travel on the company airplane, for travel to

or from the city where the meeting was held, on or about

the time of the meeting (September 22, 1987 through

October 3, 1987);

(c) memoranda concerning the scheduling of the

meeting, or travel to or from the city where the meeting

was held;

(d) telexes or letters concerning the scheduling of

the meeting, or travel to or from the city where the

meeting was held;

(e) Exportadora need not produce the minutes of

the meeting.

5. If the company airplane was sent to Mexico City

on or about September 29, 1987 while a Board of

Director’s meeting was being held in Mexico City on or

about that date, then the Court finds that plaintiffs have

requested the foregoing documents in item 13 of the

request for documents that accompanied the notice of

taking the deposition of Juan Bremer of December 4, 1991.

6. Counsel for Exportadora shall produce the

documents as stated in this order with delivery by overnight

mail to plaintiffs by January 13, 1992. Counsel for

Exportadora shall file a declaration with the Court by January

13, 1992, signed by an officer of Exportadora, stating that no

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other documents have been found responsive to this order,

following a diligent search of Exportadora’s files.

7. If it is discovered after the filing of the declaration

that other responsive documents, as to any category of

documents in this order, have not been produced by

Exportadora, this Court shall consider an order to show cause

for sanctions, including issue sanctions, against Exportadora.

8. Counsel for Exportadora has stated that document

000047, dated Noviembre 2, 1987, is the only document

pertaining to expenses associated with the accident and that

it is also the document referred to by Ms. Gastelum in her

deposition. Counsel for Exportadora shall file a declaration

with the Court by January 13, 1992, signed by an officer of

Exportadora, stating that document 000047 is the only

document responsive to the request, and stating that after a

diligent search no other documents have been found

concerning reimbursement from Mitsubishi for the expenses

of the accident.

9. Plaintiff's request to resume the deposition of Mr.

Bremer is denied.

10. Plaintiffs may take the deposition of Mikiko

Izumi on the subject of the declaration she has filed in

support of Exportadora’s motion for summary judgment.

11. Plaintiff's request to take the deposition of

Enrique Achoy, by Exportadora producing Mr. Achoy, is

denied. Exportadora does not employ or control Mr. Achoy.

This denial is without prejudice to plaintiffs taking Mr.

Achoy’s deposition on an independent basis.

12. Exportadora may take the deposition of any

witness who files a declaration in Opposition to the motion

for summary judgment, limited to new material Stated in

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the declaration.

13. Exportadora’s request to again depose Mrs.

Schoenberg and Mrs. Hernandez is denied.

14. Exportadora’s request to depose the Japanese

plaintiffs before December 30, 1991 is denied. This Court

re-affirms Judge McCue’s order of March 6, 1991. The

depositions of the Japanese plaintiffs may not be taken

until one week before the trial in the United States.

15. The parties shall designate their experts by

December 30, 1991.

16. The depositions of experts shall be completed by

January 15, 1992.

Dated: January 13, 1992

San Diego, California

_/s/

Louisa S. Porter

United States Magistrate

Approved as to form:

GRECO & TRAFICANTE

_/s/ 12-30-91_

Clyde Greco

Attorneys for Defendant

Exportadora De Sal, S.A. De C.V.

314

I, Lydia Coderre, a duly appointed translator

for the Superior Court of California, County

of San Diego, CERTIFY that I have translated

the following document (s) :

Re: DECREE OF PROMULGATION OF AGREEMENT ON

- TECHNICAL COOPERATION BETWEEN THE

GOVERNMENT OF MEXICO AND THE GOVERNMENT

OF JAPAN THE PREAMBLE AND ARTICLE XII

from the Spanish Language to the English

Language and do CERTIFY that it is correct to

the best of my ability and belief.

YD CODERRE

CERTIFIED SPANISH

INTERPRETER

November 15, 1994

Date

INTERPRETER’S CERTIFICATION RE: DOCUMENT

TRANSLATION

315

DECREE of promulgation of the Agreement on

Technical Cooperation between the

Government of the United Mexican States

and the Government of Japan, signed

in the city of Tokyo the 2nd of December

of 1986.

At margin a stamp with the National

Shield which says: United Mexican States.-

Presidency of the Republic.

MIGUEL DE LA MADRID II., President of

the United Mexican States, to its habitants,

makes known

By Plenipotentiaries duly authorized for

the effect, was signed in the city of Tokyo

on the 2nd day of the month of December of

the year one thousand nine hundred eighty six

the Agreement on Technical Cooperation

between the Government of the United Mexican

States and the Government of Japan, whose

text and Spanish form are evident in the

attached certified copy.

The above Agreement was approved by the

Chamber of Senators of the H. Congress of the

Union, the twenty second day of the month of

October of the year of one thousand nine

hundred eighty seven, according to Decree

published in the Official Daily of the

Federation of the ninth day of the month of

December of the same year.

The exchange of notifications foreseen

in Article XII of the Agreement was effected

in the city of Tokyo, Japan the seventeenth

day of the month of December of the year of

one thousand nine hundred eighty seven and

the twenty eighth day of the month of January

of the year of one thousand nine hundred

eighty eight.

Therefore, for its due observance, in

compliance with that provided in the First

Fraction of Article Eighty Nine of the

316

Political Constitution of the United Mexican

States, the present Decree promulgated in the

residence of the Federal Executive Power on

the seventh day of the month of March of the

year of one thousand nine hundred eighty

eight.-Miguel de la Madrid II.-Rubric.-The

Department of Foreign Relations. Bernardo

Sepulveda Amor.-Rubric.

The Attorney Alfonso de Rosenzweig Diaz,

Assistant Secretary of Foreign Relations

certifies:

That in the archives of this Department

there exists one of the two originals of the

Agreement on Technical Cooperation between

the Government of the United Mexican States

and the Government of Japan, signed in the

city of Tokyo on the second day of the month

of December of the year of one thousand nine

hundred eighty six, whose text and Spanish

form are the following:

317

a

aaa encemeeriaainnaeia einen nei

ARTICLE XII

i. The present Agreement shall enter

into effect on the date in which the

Government of Japan receives written

notification from the Government of the

United Mexican States that it has complied

with the necessary constitutional procedure

to put it in practice.

2. The present Agreement shall have a

validity of one year and shall be extended

automatically each year for another period of

equal duration unless one of the Governments

has communicated to the other Government, in

writing, six months beforehand its will to

denounce.

IN WITNESS WHEREOF, the undersigned,

duly authorized for this sign the present

Agreement.

Executed in the city of Tokyo the second

day of the month of December of the year of

one thousand nine hundred eighty six in two

copies, in the Spanish language and Japanese,

both texts being equally valid.-By the

Government of the Mexican United States, the

Secretary of Foreign Relations, Bernardo

Sepulveda Amor.- Rubric.-By the Government of

Japan, the Minister of Foreign Relations,

Tadashi Kuranari.-Rubric.

The present is true and complete copy in

Spanish of the Agreement on Technical

Cooperation between the Government of the

United Mexican States and the Government of

Japan, signed in the city of Tokyo on the

second day of the month of December of the

year of one thousand nine hundred eighty six.

I issue the present, in eleven useful

pages in Mexico City, Federal District, on

the first day of the month of March of the

year of one thousand nine hundred eighty

eight for the purpose of incorporating it to

the respective Decree of promulgation.-The

318

Assistant Secretary of Foreign R

elations,

Alfonso de Rosenzweig-Diaz.-Rubric.

Peatreot ant;

319