Opinion
No. 02 C8538
January 17, 2002
MEMORANDUM ORDER
Before the court is BorgWarner's MOTION TO COMPEL DEPOSITION OF NISSAN NORTH AMERICA, INC. PURSUANT TO ITS RULE 45 SUBPOENA and Nissan North America's CROSS-MOTION TO QUASH BORGWARNER'S DEPOSITION SUBPOENA TO NISSAN NORTH AMERICA, INC.
I. BACKGROUND
Defendant BorgWarner, Inc. ("BorgWarner"), pursuant to Fed.R.Civ.P. 45, served upon Nissan North America, Inc. ("Nissan") a subpoena issued by this court calling for the production of documents, and the testimony of a designated person under Fed.R.Civ.P. 30(b)(6). The underlying litigation, giving rise to the issuance of the subpoena, is in the U.S. District Court for the Eastern Division of Michigan and involves New Venture Gear's ("NVG") allegations of patent infringement by BorgWarner, The patent involves an "on-demand" four wheel drive transfer case used in SUV's and other four wheel drive vehicles.
According to the parties, the extent of the testimony to be taken at the deposition has been narrowed to "the operation and control of transfer case Model No. ATX 14A," which is a four-wheel-drive transfer case found on the Nissan Pathfinder and Infinity QX4, two SUV automobiles sold by Nissan in the United States. The ATX 14A transfer case is involved in the claims in the Michigan patent case. BorgWarner has represented that the sought after discovery, under the subpoena, relates to damages resulting fret-n the alleged patent infringement.
The record establishes, and the pates agree, that Nissan has not designed or manufactured the ATX 14A transfer case, nor has Nissan manufactured the cars in which the transmission is found. The record further establishes that Nissan has no knowledge of the control strategy utilized in the ATX 14A, how the clutches or internal mechanisms are engaged or disengaged, or how torque is transferred within the transfer case. Nissan has provided BorgWarner with ATX14A operating and service manuals, which it represents is the totality of any technical information it has. Nissan did not create or publish these operational and service manuals but received them from the company that did manufacture the cars in which the ATX14A transfer case is found. (Declaration of Christopher Cole, Ex. E to Nissan's Motion to Quash).
Nissan is a subsidiary of Nissan Motor Company, LTD., Toyota, Japan, with its headquarters located in Gardena, California (Ex. C, Memorandum in Support of BorgWarner's Motion to Compel Deposition of Nissan). The subpoena served on Nissan, issued by this court, provides for a Rule 30(b)(6) deposition to take place in Chicago, Illinois (Ex. 3, Memorandum in Support of BorgWarner's Motion to Compel Deposition of Nissan).
II. DISCUSSION
Fed.R.Civ.P. 45(a)(2) provides that:
A subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken.
Fed.R.Civ.P. 45(e)(3)(A) provides that:
". . . the court by which a subpoena was issued shall quash . . . the subpoena of it (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person . . . regularly transacts business."
A general presumption is that depositions of a corporation through its agent should be taken at the corporation's principal place of business. Custom Form Manufacturing, Inc. v. Omron Corporation, 196 F.R.D. 33 (N.D.IND. 2002).
Nissan's headquarters is located in Gardena, California and accordingly, under Rule 45(c)(3)(A), is the appropriate place for the taking of the Rule 30(b)(6) deposition. Nissan's headquarters is located within the jurisdiction of the U.S. District Court for the Central District of California, which under Rule 45(a)(2) is the appropriate court from which an enforceable subpoena could be issued, Accordingly, the subpoena issued by this court will be quashed.
Moreover, even if for some reason this court could possibly order the Rule 30(6)(b) deposition to go forward under the subpoena, we would still choose not to order same and not depart from the Rules' requirements. In this case, BorgWarner has failed to show a substantial need for the testimony sought from Nissan. The technical information referred to as "damage discovery" is more readily available to BorgWarner from other sources without any undue hardship. For example, there is the licensing and royalty agreement between Nissan and NVG that describes the royalty arrangement concerning the ATX I 4A drive transfer case. This is easily obtainable from NVG. Additionally, since Nissan did not design, manufacture or install the ATX14A transfer case in the vehicles distributed by Nissan, it could hardly have any of the sought after technical information. This information is readily available from that entity that did design and manufacture the transfer case.
II. CONCLUSION
For the foregoing reasons, BorgWarner's motion is DENIED and Nissan's motion is GRANTED. The subpoena issued by this court upon Nissan is hereby QUASHED. The court advises the parties that in light of the Michigan District Court's November 15, 2002 discovery closure date, initiation of any further subpoena activities will require the parties to first proceed before the Michigan court and obtain leave to do so.