ORDER RE LETTER ROGATORY

ALLISON CLAIRE, District Judge.

Plaintiff, Allianz Sigorta, A.S., has filed a motion requesting this court to issue a letter rogatory to the Supreme Court of Newfoundland and Labrador. ECF No. 13. The matter was referred to the undersigned by E.D. Cal. R. 302(c)(1). Plaintiff and defendants were represented by counsel at the March 16, 2016 hearing on this matter. For the reasons stated below, the court will issue the requested letter rogatory.

I. BACKGROUND

Plaintiff is an insurance company organized under Turkish law and based in Istanbul, Turkey. Complaint (ECF No. 1) ¶ 1. Defendant Ameritech Industries, Inc., of which defendant Eagle Engines is a subsidiary (collectively, "Ameritech"), is a Redding, California company that inspects, services, maintains, repairs, overhauls and certifies aircraft engines. Complaint ¶ 4.

On February 18, 2014, Ameritech serviced the engine on a Cessna T206H plane that was then sold, on July 17, 2014, to non-party Korfez Hartalcilik Planlama Ltd STI ("Korfez"). Id. ¶¶ 7-11. Korfez is plaintiff's insured. Id. ¶¶ 11, 12. Plaintiff insured the plane on August 27, 2014. Id. ¶ 12. On August 30, 2014, while the plane was being flown from the U.S. to Turkey, the engine failed and the plane was ditched near the East Coast of Canada. Id. ¶ 13; Declaration of Gregory L. Anderson ("Anderson Decl.") (ECF No. 13-2) ¶ 3. According to the complaint, the engine failed because of its negligent servicing by defendant Ameritech, and Ameritech's false representation that the engine was airworthy. Complaint, Claims 1 & 2. The damaged Cessna, with its allegedly defective engine, are now housed at an Air Labrador facility at Goose Bay, Newfoundland, Canada. Complaint ¶ 15; Anderson Decl. ¶ 4.

Plaintiff Allianz (the insurer) paid $275,000 to Korfez (the owner of the Cessna), which Allianz estimated to be the cost to repair the Cessna. Complaint ¶ 16; Anderson Decl. ¶ 5. Allianz (as Korfez's subrogee), filed this lawsuit against Ameritech to recover those costs. Complaint ¶¶ 33-37.

It appears that Korfez has not repaired the Cessna, apparently believing that Allianz should have declared the plane to be a total loss, and should have paid it $430,000. Anderson Decl. ¶¶ 6-8. Allianz asserts that it has ethical constraints prohibiting it from contacting Korfez to request inspection of the plane, since Korfez indicated it has "applied to justice" regarding the payment. Motion at 4; Anderson Decl. ¶ 8.

As a result of all this, Air Labrador has possession of the aircraft and engine, but it does not have title, nor does it have permission from the owner (Korfez) to allow Allianz to conduct an inspection.1 Thus, Air Labrador — which, according to Allianz, has no objection to an inspection — needs a court to order inspection of the Cessna and its engine. Allianz says this court cannot compel the inspection directly, because the owner, Korfez, is a non-party located in Turkey, and Air Labrador is a non-party located in Canada.

II. LETTERS ROGATORY

A. General Authority

"This Court, like all courts of the United States, has inherent power to issue Letters Rogatory." United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958); see 28 U.S.C.A. § 1781(b)(2) ("[t]his section" — which authorizes the State Department to receive letters rogatory from U.S. tribunals and to transmit them to foreign tribunals — "does not preclude . . . the transmittal of a letter rogatory or request directly from a tribunal in the United States to the foreign or international tribunal, officer, or agency to whom it is addressed and its return in the same manner") (emphasis added).

B. Treaties

This motion would be relatively straightforward if there were a treaty between Canada and the United States calling for Letters Rogatory to be exchanged between tribunals of the two countries. There is such a treaty to which the United States is a signatory, namely, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. See Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 524 (1987) ("The United States, the Republic of France, and 15 other Nations have acceded to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters"). However, Canada is not a party to this Convention. Id. at 524 n.1 (listing parties to the Convention).2

C. Canada Evidence Act

Plaintiff accordingly asks this court to issue the letter rogatory under the "Canada Evidence Act," which, it says, "specifically provides that a court outside of Canada may seek the assistance of Canadian courts by serving letters rogatory upon the appropriate Canadian court." ECF No. 13-1 at 6, citing "R.S.C. 1985, c. C-5 §§ 46, 51" (available at https:www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html) (last visited by the court on March 22, 2016).

The cited Canadian statute provides that a Canadian court may, upon application by "a court . . . outside Canada," order a deposition, and command "the production of any writings or documents relating to the matter." Canada Evidence Act, RSC 1985, c C-5, Part II, § 46(1). The Canadian court may accept "letters rogatory from a court . . . outside Canada in which the civil. . . matter is pending" as evidence in support of the application. Id., § 51(2).

The Canadian statute does not contain the language of the Federal Rules applicable in the United States, that provide for the inspection of "any designated tangible things," the entry onto land or property to inspect "any designated object or operation on it," or "the inspection of premises." See Fed. R. Civ. P. 34(a)(1)(B), (a)(2), 45(a)(1)(A)(iii). At the hearing on this matter, counsel for plaintiff assured the court that Canadian counsel advised him that under the applicable Canadian law, a Canadian court can order these things from a non-party if so requested by a letter rogatory from this court.

D. Notice

Plaintiff Allianz wants to inspect a plane that is in the possession of Air Labrador and which is the property of Korfez. The ultimate judicial action Allianz requests is an order from the Canadian court to "compel . . . Air Labrador to produce for inspection and photo documentation. . . a Cessna 206 aircraft [and] the engine installed therein." ECF No. 13-7 at 3. Allianz represents to the court that "Air Labrador has no objection to the visual inspection pursuant to a valid order or subpoena." ECF No. 13 at 2; Anderson Decl. ¶ 10. It also represents that it "does not anticipate any objection to the proposed visual inspection by Korfez." ECF No. 14 at 2.

However, there is no indication that Air Labrador or Korfez has been served with this motion. At the hearing on this matter, counsel for Allianz asserted that no notice to Air Labrador or Korfez was required prior to issuance of the letter rogatory, because Allianz will ask the Canadian court only for an inspection of the Cessna and the engine, and will not disturb the property in any way. Counsel for defendants offered no view on this matter, except to assert that a mere inspection will not be helpful to defendants, since defendants want the opportunity to disassemble the engine as part of their inspection.3 The court notes that in a case where the item to be inspected was in the United States, plaintiff could obtain a court-issued subpoena for inspection without notice to the non-party. Fed. R. Civ. P. ("Rule") 45(a)(3) ("[t]he clerk must issue a subpoena . . . to a party who requests it"). The non-party would then have an opportunity to challenge the subpoena in court, once it was served. Rule 45(d)(2)(B) ("Objections"). Accordingly, the court will not require notice to non-parties prior to approving the requested letter rogatory. Whether the approved Letter Rogatory needs to be served upon non-parties, or whether they are otherwise entitled to notice, is a matter of which this court respectfully defers consideration to the appropriate Canadian court.

E. Proposed Letter Rogatory

Allianz has submitted a proposed Letter Rogatory. Although plaintiff recognizes that the Hague Convention does not apply here, it has included the information that would be included by that Convention. See notes following 28 U.S.C.A. § 1781. The court will approve the requested Letter Rogatory, as edited by this court.

III. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that:

1. Plaintiff's Motion for Issuance of Letter Rogatory (ECF No. 13), is GRANTED, and the approved Letter Rogatory is attached to this order;

2. Plaintiff may present the Letter Rogatory with all its attachments, to the Supreme Court of Newfoundland and Labrador, so long as this order is attached thereto.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE

(LETTER ROGATORY)

TO THE APPROPRIATE JUDICIAL AUTHORITY OF THE PROVINCE OF NEWFOUNDLAND AND LABRADOR, CANADA:

The United States District Court for the Eastern District of California, presents its compliments to the appropriate judicial authority of the Province of Newfoundland and Labrador, Canada, and requests international judicial assistance to obtain evidence to be used in a civil proceeding before this Court in the above captioned matter. A trial on the matter is scheduled at present for August 7, 2017 in the City of Sacramento, State of California, United States of America.

The applicant for this letter is the plaintiff in the above-entitled action, Allianz Sigorta, A.S., an insurance carrier doing business in Turkey. The applicant represents that counsel licensed to practice law in Newfoundland and Labrador was retained by plaintiff Allianz Sigorta, A.S., and is available to answer any questions the Supreme Court of Newfoundland and Labrador may have:

This request is made pursuant to 28 United States Code § 1781(b)(2) (permitting the transmittal of letters rogatory through the District Courts and the Department of State) (attached).

The applicant represents that the request is also made pursuant to: the Canada Evidence Act, RSC 1985, c. C-5, section 46(1) (authorizing courts of Canada to act upon foreign letter rogatory); Rule 32.07 of the Rules of the Supreme Court of Newfoundland and Labrador; Multifeeder Technology, Inc. v. British Confectionary Co. 2011 NLTD(G) 111 (NLSCTD); R. v. Zingre [1981] 2 S.C.R. 392 (SCC); and O.P.S.E.U. Pension Trust Fund (Trustee of) v. Clark (2006) CasrwellOnt 3748 (ONCA) (providing for the issuance of orders compelling non-parties to produce items in their possession, custody or control).

The United States District Court for the Eastern District of California is a competent court of law and equity which properly has jurisdiction over this proceeding and is authorized to issue a letter rogatory by 28 U.S.C. § 1781(b)(2).

This Court requests the assistance described herein as necessary in the interest of justice. The assistance requested is that the appropriate judicial authority of the Province of Newfoundland and Labrador compel the business organization named below, Air Labrador, to produce for inspection and photo documentation by representatives of the parties to this action, evidence in its custody and control, a Cessna 206 aircraft, the engine installed therein, parts of the engine removed from the aircraft and sealed in a cardboard box and all aircraft and engine logbooks. Applicant represents as follows:

Name of Witness:

Air Labrador, Ltd., doing business as Air Labrador.

Nationality of Witness:

Air Labrador is a Canadian provincial airline whose operations include Goose Bay, NL.

Address of Witness:

Description of Evidence to Be Produced for Inspection:

Cessna T206H aircraft, US Registration No. N52263, including its engine and all parts and components thereof, and all logbooks pertaining thereto.

1. SENDER

2. CENTRAL AUTHORITY OF THE REQUESTED STATE

3. PERSON TO WHOM THE EXECUTED REQUEST IS TO BE RETURNED

4. SPECIFICATION OF DATE BY WHICH THE REQUESTING AUTHORITY REQUIRES RECEIPT OF THE RESPONSE TO THIS LETTER ROGATORY:

A response is requested as soon as possible, in order to ensure that the evidence may be obtained and any necessary follow up may be completed before the deadline for completion of discovery in this case, currently set for August 8, 2016. Also, the aircraft which the parties seek to inspect is repairable and could be repaired or otherwise disposed of at any time leading to the loss of evidence.

The parties and the consulting experts who will conduct the inspection are available on the following dates:

April 12-14, 2016 (or other dates mutually agreed upon by the parties and Air Labrador)

5. NAMES AND ADDRESSES OF THE PARTIES AND THEIR ATTORNEYS

The evidence requested relates to the action Allianz Sigorta, A.S., plaintiff vs. Ameritech Industries, Inc., and Eagle Engines, defendants, Case No. 2:15-cv-1665 MCE AC, a civil action pending in the United States District Court for the Eastern District of California.

The parties and their attorneys are the following:

a. Plaintiff

b. Defendant

6. NATURE AND PURPOSE OF THE PROCEEDINGS AND SUMMARY OF THE FACTS, AS REPRESENTED BY PLAINTIFF

The relevant claims and defense of the parties are: Allianz Sigorta, A.S. is in the business of providing property insurance in the nation of Turkey. On August 27, 2014 Allianz Sigorta, A.S. issued an Aviation All Risk insurance policy (policy no. 001-0510-0084281) to Korfez Hartalcilik Planlama Ltd STI, a Turkish Limited Liability Company (hereinafter "Korfez"). The insurance policy covered Korfez for loss or physical damage to the Cessna model T206H aircraft, U.S. registration number N52263 which is the subject of this Letter Rogatory. Korfez purchased the Cessna from a seller in the United States on July 17, 2014.

On August 30, 2014, pilot Paul Eriksmoen was providing a ferry flight for the Cessna T206H aircraft from the United States to Korfez in Turkey. Near Rigolet, the engine of the Cessna T206H experienced a sudden catastrophic failure. Pilot Eriksmoen made an emergency landing near the shore, where the aircraft remained partially submerged for several days. The Cessna T206H was removed from the landing site by helicopter to the nearest suitable location which was the Air Labrador facility at Goose Bay Airport. Pilot Eriksmoen died in a subsequent accident.

Post accident investigation revealed catastrophic failure of the engine following a loss of engine oil. The main oil seal at the front of the engine was dislodged from its correct position. Allianz Sigorta A.S. paid Korfez the estimated cost of repairs for the Cessna T206H. Korfez has not undertaken the repairs and the Cessna T206H remains in the possession of Air Labrador at Goose Bay Airport.

Defendant Ameritech Industries, Inc. doing business as Eagle Engines (hereinafter "Ameritech") performed a complete overhaul of the engine of the Cessna T206H during the period of December 2013 through February 2014. In the proceeding before this Court, Allianz Sigorta, A.S. alleges that the failure of the engine and damage to the aircraft were caused by the negligence of Defendant Ameritech in performance of the 2013/2014 engine overhaul. Allianz seeks to recover from Defendant, the amounts it paid to recover the aircraft and amounts paid to Korfez for the repairs. Defendant denies that it acted negligently and specifically denies that its engine overhaul caused the engine failure.

7. EVIDENCE TO BE OBTAINED AND PURPOSE

The evidence to be obtained consists of a visual inspection and documentation of the Cessna T206H and particularly the failed engine, by consulting experts retained by the parties to the proceeding in the United States District Court. This court is informed by plaintiff that pieces of the damaged engine were retrieved during the post-accident investigation and were placed in a cardboard box, sealed and stored inside the aircraft. This court is further informed that the original aircraft and engine logbooks were inside the aircraft at the time of the accident and sustained water damage. The logbooks are required by the U.S. Federal Aviation Administration and must include all maintenance and return to service entries. This Court is informed that the logbooks are in the possession of Air Labrador. Plaintiff's adjuster took photographs of a few pages of the damaged logbooks and the parties otherwise have no access to the logbooks and are unaware of any other source for the information contained therein. The visual inspection will include taking measurements. There will be no destructive testing or alteration of the aircraft or its components.

This Court requests that the Supreme Court of Newfoundland and Labrador compel Air Labrador to make the Cessna T206H, including its engine, components in the cardboard box, along with the logbooks available for the inspection and documentation described above.

The information obtained by this inspection is necessary for trial and will be adduced at trial, if admissible, for use by the parties in supporting their claims and defenses. While this Court expresses no view at this time as to the merits of the above-captioned case, it believes the evidence sought here will be relevant to and either probative or disprobative of material facts relevant to the parties' claims and defenses.

8. IDENTITY AND ADDRESS OF PERSON TO BE COMPELLED

9. STATEMENT OF THE SUBJECT MATTER TO BE PRODUCED FOR INSPECTION

This Court requests only that Air Labrador make the Cessna T206H aircraft, engine, components in the cardboard box, and logbooks available for inspection and documentation by the parties' consultants as described above. This Court is not requesting any testimony by any representative of Air Labrador nor any other assistance from Air Labrador above and beyond permitting the inspection.

10. DOCUMENTS AND OTHER EVIDENCE TO BE EXAMINED

This Court requests that Air Labrador be compelled to make available for inspection by the parties' experts the Cessna T206H, US registration number N52263 and all components, parts and aircraft logbooks in its possession pertaining thereto.

11. REQUIREMENT THAT THE EVIDENCE BE GIVEN ON OATH OR AFFIRMATION

The inspection described above does not require any oath or affirmation on the part of Air Labrador and this Court does not request any such oath or affirmation.

12. SPECIAL PROCEDURES OR METHOD TO BE FOLLOWED

The parties' consulting experts will conduct a visual examination of the Cessna T206H, its engine, components in the cardboard box, and logbooks. This Court is informed that the engine remains installed on the aircraft and that some parts of the engine removed during the post-accident investigation have been placed in a sealed box placed inside the aircraft. This Court is further informed that Air Labrador has some or all of the aircraft logbooks and that Cessna aircraft is located at an aircraft tie down parking space at Goose Bay Airport. The parties' consultants can perform the inspection of the Cessna as it is and where it is.

Because the parties' consultants are located in the United States, the date of the inspection should be set on a date mutually convenient to the consultants and Air Labrador. This Court is advised that the consultants are available on the following dates and requests that the Supreme Court of Newfoundland and Labrador compel Air Labrador to make the aircraft available for inspection on one day within the following ranges (with sufficient notice to allow coordination of travel by the experts to Goose Bay):

April 12-14, 2016 (or other dates mutually agreed upon by the parties and Air Labrador)

13. REQUEST FOR NOTIFICATION

We respectfully request that any order made by the court will require the production of the Cessna T206H and its records and components provide the parties' representatives copies of the order with sufficient notice of the date, time and place for the inspection to permit coordination with the parties' expert consultants and the making of travel arrangements to attend and also provide a copy to:

14. REQUEST FOR ATTENDANCE OR PARTICIPATION OF JUDICIAL PERSONNEL OF THE REQUESTING AUTHORITY AT THE EXECUTION OF THE LETTER ROGATORY

None.

15. SPECIFICATION OF PRIVILEGE OR DUTY TO REFUSE TO GIVE EVIDENCE UNDER THE LAW OF THE STATE OF ORIGIN

Under the Federal Rules of Civil Procedure, a non-party may be compelled, by subpoena, "to do the following at a specified time and place: . . . produce . . . tangible things in that person's possession, custody or control; or permit the inspection of premises. . . ." Fed. R. Civ. P. 45(a)(1)(A)(iii) (attached). This court has determined that the Cessna, its engine, the parts in the cardboard box, and logbooks are relevant to the subject matter of the action and the inspection of those items is necessary for trial and will be adduced at trial, if admissible. While the applicable law of the United States recognizes a number of privileges such as confidential communications with counsel, medical and financial information, and trade secrets, none appears likely to have any application to the visual and photographic inspection of the Cessna T206H.

16. REIMBURSEMENT

The Federal Rules of Civil Procedure provide that the person seeking the discovery "must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Fed. R. Civ. P. 45(d). If the non-party objects to the discovery, the Rules provide that the court may shift the expense of the discovery to the requesting party. Fed. R. Civ. P. 45(d)(2)(B)(ii); Legal Voice v. Stormans, Inc., 738 F.3d 1178, 1184-85 (9th Cir. 2013) (attached).

If the Supreme Court of Newfoundland and Labrador determines that Air Labrador will incur significant costs to comply with the order for inspection, or if the Supreme Court of Newfoundland and Labrador requires reimbursement of its own costs incurred in executing this Letter Rogatory, the reimbursable expenses will be borne by the above-named plaintiff, Allianz Sigorta, A.S.

17. RECIPROCITY

The court understands that 28 U.S.C. § 1782(a) (attached) provides for this court to honor letters rogatory issued by a Canadian tribunal.