Pitz v. Gonzalez

Summary

The United States District Court for the Northern District of California ruled on Respondent’s second motion in limine in a Hague Convention proceeding. The court excluded evidence and testimony concerning German proceedings to the extent offered on habitual residence or custody rights, but permitted limited evidence concerning German law and potential protective or ameliorative measures upon return. The court denied further deposition discovery of Petitioner’s German attorney, while allowing limited trial questioning subject to the attorney’s asserted obligations under German law.

Holdings

1. Because habitual residence is for this Court to decide and no deference to the German courts' findings was requested or warranted, the Court excluded testimony about the German proceedings leading to the habitual-residence determination, how the German court reached that decision, and Dr. Hanke's opinions that the children were habitual residents of Germany.
2. The Court allowed documentary evidence concerning the German proceedings and testimony from Dr. Hanke about German law and custody proceedings that would occur if the children were returned, because that evidence could inform the Court's assessment of protective or ameliorative measures.
3. Although Petitioner's use of Dr. Hanke's opinions as a testifying expert could support a subject-matter waiver of privilege as to prior statements on the same legal issues, Respondent was not entitled to a further deposition because the burden of the proposed discovery outweighed its likely benefit under the circumstances.
4. Respondent may ask Dr. Hanke about prior statements to Petitioner concerning the subject matter of his declaration or trial testimony, but the Court will not order Dr. Hanke to answer if he asserts that German law or ethical rules prevent him from doing so, so long as his testimony remains limited to German law and potential future German proceedings.
5. Respondent may present her own witness or other evidence concerning German law or future German custody proceedings despite her earlier failure to designate such evidence, subject to specified notice, disclosure, and deposition conditions.

Questions Presented

1. Whether testimony and evidence concerning the German proceedings, including testimony about the German court's habitual-residence determination and Dr. Hanke's opinions on habitual residence and custody rights under German law, should be excluded at trial.
2. Whether German-law evidence and evidence concerning potential future German custody proceedings may be admitted to assist the Court in evaluating protective or ameliorative measures if return to Germany is ordered.
3. Whether Petitioner waived attorney-client privilege and work product protection by offering declarations from Dr. Hanke as an expert on German law.
4. Whether Respondent should receive a further deposition of Dr. Hanke concerning the German proceedings and his declarations.
5. Whether Respondent should be permitted to offer her own evidence concerning German law or future German custody proceedings despite not having previously designated that evidence.

Disposition

other