Opinion
Civil Action Number 00-05-265-JOH
Submitted: June 19, 2001 Argued: June 21, 2001
Decided: June 25, 2001
Defendant's Motion to Set the Location of Depositions in Wilmington, Delaware — DENIED.
Charles F. Richards, Jr., Esq., (argued), J. Travis Laster, Esq., Andrea K. Short, Esq., of Richards, Layton Finger, attorneys for Conoco, Inc.
Edward P. Welch, Esq., (argued), Edward B. Micheletti, Esq., Skadden, Arps, Slate, Meagher Flom LLP, attorneys for E.I. DuPont de Nemours and Company.
MEMORANDUM OPINION
Conoco, Inc., has sued E.I. DuPont de Nemours and Co. for breach of two contracts. One is entitled "Separation Agreement," and Conoco seeks $5,082,058.66 for that alleged breach. The other contract is entitled "Employee Matters Agreement." Conoco seeks $301,966.53 in damages for that alleged breach.
Discovery is now beginning on these claims. As part of discovery, DuPont wants to depose eleven people employed by or associated with Conoco. One person appears to be a non-resident (of Delaware) director; another is a senior vice-president finance, and chief financial officer. The other nine appear, by their titles, to hold upper management positions. All are located in Texas.
DuPont wants all eleven to be deposed in Delaware. Conoco wants them deposed in Texas. Because of that disagreement, DuPont has moved to have this Court set the location for the depositions. While Conoco is the non-moving party, its position is akin to seeking a protective order. This Court has the discretion to issue such orders. The parties' positions on the location for these depositions are premised on two separate assertions.
Superior Court Civil Rule 26(c); Brett v. Berkowitz, Del.Super., C.A. No. 91C-12-251, Lee, J. (April 13, 1995) at 6.
DuPont argues that the depositions should be in Delaware since Conoco chose to litigate here. There is, of course, ample authority to support that position. It also points to the fact that Conoco has not shown any hardship in producing these proposed eleven deponents in Delaware. Conoco, on the other hand, acknowledges that it initiated its action here. But, it points to what it says is the practice in the Court of Chancery when there is major corporate litigation. In these instances, it contends, depositions of out-of-state directors and persons in high management positions are taken at the principal place of business of the corporation whose people are being deposed. Lead counsel for the parties in this case admit they practice more in Chancery than in this Court. Even so, they disagree about the "practice" in Chancery for taking corporate depositions.
See, e.g., Hoechst Celanese Corp. v. National Union Fire Ins. Co., Del.Super., C.A. No. 89C-SE-15, Gebelein, J. (August 18, 1997).
This Court, however, does not need to resort to Chancery practice or resolve which party's view of that practice is more accurate. DuPont's motion to require the eleven depositions to take place here and Conoco's opposition to it invoke the Court's discretion.
In the exercise of that discretion, the Court has weighed a number of factors. Among them are: (1) Conoco's initiation of its claim here, (2) its relationship to DuPont in Delaware while the two were under the same "roof," (3) both corporations are global multi-billion dollar entities, (4) the comparative expense to either side of the two options for the deposition location, (5) apparent minimal need to be near large volumes of records to be produced at the deposition, as distinct from pre-deposition production, and (6) the relative ease of either side to travel to either proposed deposition site.
Each case, certainly recognizing the exercise of the Court's discretion, is unique and fact driven. In this particular case, the Court sees a reason to deviate from the general rule that a defendant seeking to depose employees, directors or officers of the plaintiff can do so in Delaware. In addition to all of the above-enumerated factors, the tipping factor in this case is the number of proposed deponents, here eleven. All of them, as far as the Court knows, reside in Texas, in or near Houston. Compared to the number of DuPont's counsel needed for the deposition and the potential greater disruption of the deponent's jobs, discretion points in favor of conducting the depositions in Houston. Counsel will work out where in Houston these depositions will occur. Each party will bear its own costs.
CONCLUSION
For the reasons stated herein, DuPont's motion to set the location for depositions in Wilmington, Delaware, is DENIED.
IT IS SO ORDERED.