Opinion
97 Civ. 4978 (LMM) (HBP)
May 20, 2002
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiffs seek a protective order directing that the depositions of certain individual plaintiffs be taken telephonically due to the plaintiffs' advanced age and frail physical condition. Plaintiffs also seek a protective order limiting the Rule 30(b)(6) deposition of Intaj S.A.L. to written interrogatories.
II. Motion of Adib Kaba, Souad Kaba Zakaa Hakim and Ahmad Kawas for a Protective Order
By letter dated March 22, 2002, plaintiffs seek a protective order with respect to plaintiffs Adib Kaba, Souad Kaba, Zakaa Hakim and Ahmad Kawas (the "Moving Plaintiffs"), directing that their depositions be taken by telephone. The Moving Plaintiffs range in age from 60 to 84 years and reside in Cyprus or Beirut. All of the Moving Plaintiffs, except Souad Kaba, claim to have various physical infirmities that prevent them from traveling to this District to be deposed. Souad Kaba claims that she is unable to travel to this District because she is the principal care giver for her husband Adib Kaba who suffers from a degenerative heart condition and requires her daily care.
Since the plaintiff chooses the forum in which an action is brought, it is well settled that a plaintiff is ordinarily required to make him or herself available for a deposition in the jurisdiction in which the action is brought. 2 Michael C. Silberberg, Civil Practice in the Southern District of New York, § 17.11 at 17-31 — 17-32 (2d ed. 2001). However, physical illness or infirmity has long been recognized as valid reasons for departing from the general rule. Id. at 17-33, citing Coburn v. Warner, 12 F.R.D. 188, 188-89 (S.D.N.Y. 1951);Patrick v. Eastern S.S. Line, 8 F.R.D. 421, 421 (S.D.N.Y. 1948); Sullivan v. Southern Pac. Co., 7 F.R.D. 206, 207 (S.D.N.Y. 1947). See also 8A Charles A. Wright, Arthur R. Miller Richard L. Marcus, Federal Practice Procedure § 2112 at 77-79 (2d ed. 1994).
I agree with defendant that the minimal showing that the Moving Plaintiffs have made in their letter application does not justify the relief sought. All that the Moving Plaintiffs have offered are unsworn statements from their physicians and their own conclusory affirmations that they are unable to travel without undue hardship. Accordingly, no later than thirty (30) days from the date of this Order, the Moving Plaintiffs shall provide to defendants legible copies of all passports or other travel documents that they have used from September 1998 to the present to confirm their claims that they are unable to travel. If defendants wish to depose any of the Moving Plaintiffs, such Moving Plaintiffs shall be made available for deposition by telephone within ninety (90) days of the date of this order. In addition, if any of the Moving Plaintiffs are going to testify in-person at trial, such individuals shall be made available in this District for a deposition no later than two (2) weeks prior to the start of their trial. This Order is without prejudice to an application by the defendants to compel the in-person deposition of a Moving Plaintiff in this District. In the absence of a further application from plaintiffs or defendants, this paragraph shall control the obligation of the Moving Plaintiffs to appear for a deposition.
II. 30(b)(6) Deposition of Intaj S.A.L.
Plaintiff Intaj S.A.L. ("Intaj") moves, by letter dated March 27, 2002, for a Protective Order directing that its 30(b)(6) deposition be limited to written interrogatories because three of its principals have already been deposed in their individual capacities on the vast majority of subjects set forth in defendants' 30(b)(6) notice of deposition.
"A deposition pursuant to Rule 30(b)(6) is substantially different from a witness's deposition as an individual. A 30(b)(6) witness testifies as a representative of the entity, his answers bind the entity and he is responsible for providing all the relevant information known or reasonably available to the entity." Sabre v. First Dominion Capital, LLC, 01 Civ. 2145 (BSJ) (HBP), 2001 WL 1590544 at *1 (S.D.N.Y. Dec. 12, 2001), citing 8A Charles A. Wright, Arthur R. Miller, Richard L. Marcus,Federal Practice Procedure § 2103 (2d ed. 1994). As comprehensively explained by Magistrate Judge Eliason of the Middle District of North Carolina:
The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. The designated witness is "speaking for the corporation," and this testimony must be distinguished from that of a "mere corporate employee" whose deposition is not considered that of the corporation and whose presence must be obtained by subpoena. 8A Wright, Miller Marcus § 2103, at 36-37. . . . If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995) (citing Marker, 125 F.R.D. at 126). Thus, the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. Buycks-Roberson v. Citibank Federal Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995); S.E.C. v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992).
The Rule 30(b)(6) designee does not give his personal opinions. Rather, he presents the corporation's "position" on the topic. U.S. v. Massachusetts Indus. Finance Agency, 162 F.R.D. 410, 412 (D. Mass. 1995); Lapenna v. Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986); Toys "R" Us, Inc. v. N.B.D. Trust Company, No. 88C10349, 1993 WL 543027, at *2 (N.D. Ill. Sept. 29, 1993). Moreover, the designee must not only testify about facts within the corporation's knowledge, but also its subjective beliefs and opinions. Lapenna, 110 F.R.D. at 20. The corporation must provide its interpretation of documents and events. Ierardi v. Lorillard, Inc., Civ. A. No. 90-7049, 1991 WL 158911 (E.D. Pa. Aug. 13, 1991). The designee, in essence, represents the corporation just as an individual represents him or herself at a deposition. Were it otherwise, a corporation would be able to deceitfully select at trial the most convenient answer presented by a number of finger-pointing witnesses at the depositions. See Lapenna, 110 F.R.D. at 25. Truth would suffer.
. . . The attorney for the corporation is not at liberty to manufacture the corporation's contentions. Rather, the corporation may designate a person to speak on its behalf and it is this position which the attorney must advocate.
. . . Rule 30(b)(6) explicitly requires [a corporation] to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires such persons to review all matters known or reasonably available to it in preparation for the Rule 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the "sandbagging" of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process. The Court understands that preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.United States v. Taylor, 166 F.R.D. 356, 361-62 (M.D.N.C. 1996),accord Paul Revere Life Ins. Co. v. Jafari, 206 F.R.D. 126, 127-28 (D. Md. 2002).
Since a 30(b)(6) witness is obligated to provide the entity's knowledge, the mere fact that the principal of a corporation has been deposed is not an automatic substitute for a 30(b)(6) deposition. However, common sense teaches that in the case of relatively small, closely-held entities, like Intaj, there may be no difference between the knowledge of the entity and the knowledge of its principals.
Amazingly, plaintiffs' letter annexes a document in Arabic that purports to be Intaj's articles of incorporation. No translation has been provided. All counsel in this matter are exceptionally talented, and it should come as no surprise to them that the Court does not provide translation services for civil litigants. Henceforth, counsel are directed not to submit any documents to me in any language other than English unless accompanied by a translation.
Intaj has three shareholders, all of which have been deposed.
A 30(b)(6) deposition may not be justified where, assuming the witness is properly prepared, the entity establishes that the witness's testimony as a 30(b)(6) witness would be identical to his testimony as an individual and the 30(b)(6) is limited, or substantially limited, to topics covered in the deposition taken in the witness's individual capacity. In such a situation, there appears to be no obstacle to the entity's complying with its obligations under Rule 30(b)(6) by adopting the witness's testimony in his individual capacity.
The current record does not provide a sufficient basis for concluding that a 30(b)(6) deposition of Intaj would be entirely, or even substantially, redundant of the depositions of its principals in their individual capacities. First, Intaj does not adopt the testimony of its principals as its own testimony. Second, there is no affirmative showing that the knowledge of Intaj, as an entity, is coextensive with the knowledge of its principals. In this regard, I note that there appear to be several instances in which Intaj's principals, testifying as individuals, denied knowledge concerning certain Intaj books and records, and, thus, it may be impossible for Intaj to represent that its corporate knowledge is no greater than that of its principals.
Nevertheless, Intaj's motion presents a close case, and in the interest of conducting this litigation in the most economical manner possible, I shall give Intaj an opportunity to renew its application and attempt to make a more complete showing that the 30(b)(6) deposition sought by defendants would be a waste of time and money. Accordingly, Intaj's motion for a protective order is denied without prejudice to a renewed application within twenty (20) days of the date of this Order.