Opinion
No. TC 4708.
Preliminary ruling rendered March 22, 2005, amended on May 26, 2005. Trial on other issues October 31 and November 1, 2005. See Washington Co. Assessor II v. Jehovah's Witnesses, 18 OTR 409 (2006).
The parties requested that the court address two issues: (1) whether a corporation may change the designated corporate representative from one deposition to the next, and (2) whether a deposing party may exclude corporate witnesses from the deposition of the corporate representative. The court exercised its discretion under OEC 615 in concluding that the corporation may designate only one corporate representative in the deposition context. The court also concluded that if Defendant desires to exclude a corporate witness from the deposition of the designated corporate representative, it must comply with the rules of the court related to the filing of a protective order.
Discovery — Deposition — Corporation — Corpo rate Witness
1. Tax Court Rule 39 C(6) permits a corporation to designate more than one "corporate witness," a concept different from a "corporate representative" as contemplated in OEC 615.
Evidence — OEC 615 — Corporate Representative
2. OEC 615 permits taxpayer's attorney to designate only one corporate representative.
Evidence — OEC 615(3)
3. Even if the president and secretary of the corporation have knowledge of facts unique to their personal experiences with the corporation, such unique factual knowledge does not provide a basis for the court to find that both individuals are people whose presence is essential at the deposition of a corporate witness.
Discovery — Deposition — Openness
4. Depositions are generally open to the public; however, the court may limit the openness of a deposition upon motion by a party.
Submitted on parties' joint request for a preliminary ruling.
Elmer M. Dickens, Senior Assistant County Counsel, Washington County, argued the cause for Plaintiff (the county).
Randall A. Wiley, Portland, argued the cause for Defendant (taxpayer).
I. INTRODUCTION
At the first case management conference in this matter, the parties requested that the court address two issues: (1) whether a corporation may change the designated corporate representative from one deposition to the next, and (2) whether a deposing party may exclude corporate witnesses from the deposition of the corporate representative. At the request of the court, the parties provided written legal argument on those issues. This matter is before the court in the nature of a joint request for a preliminary ruling.
II. FACTUAL HYPOTHETICAL
The parties addressed a specific factual hypothetical:
1. Defendant (taxpayer) is a corporation.
2. Plaintiff (the county) will depose the president (President) and the secretary (Secretary) of the corporation.
3. At the deposition of President, taxpayer desires to designate Secretary as its corporate representative to witness the deposition. At the deposition of Secretary, taxpayer desires to designate President as its corporate representative to witness the deposition.
The county argues that taxpayer must elect one corporate representative who, the county agrees, may be present at all depositions. The county also desires to exclude other deposition witnesses from the deposition of the corporate representative.
The county's agreement that the corporate representative may be present at the deposition of other corporate witnesses makes it unnecessary to decide whether a deposing party may seek to exclude a corporate representative from the deposition of a corporate witness. See Adams v. Shell Oil Co. (In re Shell Oil Refinery), 136 FRD 615, 617 (ED La 1991). See also Lee v. Denver Sheriffs Dep't, 181 FRD 651, 653 (D Co 1998).
III. ISSUES
A. May a corporation change its designated corporate representative from one deposition to the next?
B. May a deposing party seek to exclude corporate witnesses from the deposition of the corporate representative?
IV. ANALYSIS
A. Designation of a Corporate Representative
The county has indicated that it intends to depose President and Secretary. The county prefers that taxpayer select one corporate representative for the depositions. Tax-payer desires to designate President as its corporate representative for the purpose of witnessing Secretary's deposition; taxpayer would then designate Secretary as its corporate representative to witness President's deposition. The parties cite to the same legal authority to support their conflicting positions.
1,2. Taxpayer asserts that it may designate more than one corporate representative on the basis of Tax Court Rule (TCR) 39 C(6), which provides that a corporation may "designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf." That assertion is misplaced. TCR 39 C(6) merely permits a corporation to designate fact witnesses for the purpose of deposing the corporation. In that regard, TCR 39 C(6) indicates that a corporation may designate more than one "corporate witness," a concept different from a "corporate representative" as contemplated in Oregon Evidence Code (OEC) 615, which provides, in pertinent part:
"At the request of the party the court may order witnesses excluded until the time of final argument, and it may make the order of its own motion. This rule does not authorize exclusion of:
"* * * *
"(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney;
"(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause * * *."
Taxpayer asserts that OEC 615 may provide a basis for it to designate more than one corporate representative. Although Oregon courts have not addressed whether OEC 615 controls in the context of a pretrial deposition, taxpayer concedes that OEC 615 is applicable. Citing to federal case law, taxpayer asserts that the court may, in its discretion, allow for more than one corporate representative. See Breneman v. Kennecott Corp., 799 F3d 470, 474 (9th Cir 1986). The county contends, however, that OEC 615 permits taxpayer's attorney to only designate one corporate representative. The court agrees with the county's reading of OEC 615 and, in its discretion, concludes that taxpayer may only designate one corporate representative.
The federal courts are split on whether Federal Rule Evidence (FRE) 615 applies to pretrial depositions. Compare Lumpkin v. Bi-Lo, Inc., 117 FRD 451, 453 (MD Ga 1987) (finding that FRE 615 does apply to depositions) with BCI Communications Sys., Inc. u. Bell Atlanticom Sys., Inc., 112 FRD 154, 159 (ND Ala 1986) (finding that parties are not entitled to invoke FRE 615 as a matter of right in depositions). Other state courts are also split on whether their state evidence rules that are similar to FRE 615 or OEC 615 apply to pretrial depositions. See, e.g., Hamon Contractors, Inc. v. Dist. Court of the First Judicial Dist., 877 P2d 884, 888 (Colo 1994). For the purposes of this preliminary ruling, the court does not address the issue of whether OEC 615 controls in the context of pretrial depositions.
3. Finally, taxpayer asserts that both President and Secretary qualify as "person[s] whose presence is * * * essential to the presentation of [taxpayer's] cause." OEC 615(3). Taxpayer bases that assertion on its claim that each individual has "knowledge of unique facts necessary to its case." Even if President and Secretary have knowledge of facts unique to their personal experiences with the corporation, such unique factual knowledge does not provide a basis for the court to find that both individuals are people whose presence is essential at the deposition of a corporate witness. See, e.g., Oliver B. Cannon and Son, Inc. v. Fidelity and Casualty Co. of New York, 519 F Supp 668, 678 (D Del 1981). The court concludes, therefore, that neither President nor Secretary qualify as an essential person under OEC 615(3).
In summary, the court concludes that taxpayer may designate one corporate representative in the context of pre-trial depositions of its corporate witnesses. Moreover, the court concludes that taxpayer may not designate a different corporate representative for separate depositions of corporate witnesses. If it elects to designate a corporate representative, taxpayer may designate only one corporate representative for pretrial depositions.
B. Exclusion of Corporate Witnesses
4. As taxpayer notes, depositions are generally open to the public. See Union Pac. Railroad Co. v. Dept. of Rev., 10 OTR 235, 247 (1986). The court may limit the openness of a deposition, however, upon motion by a party. See TCR 36 C. See also Union Pac. Railroad, 10 OTR at 247. The court concludes, therefore, that the county may move to exclude corporate witnesses from the deposition of the corporate representative pursuant to TCR 36 C.
Taxpayer asserts that the county may not now move for a protective order pursuant to TCR 36 C because the county deposed President and Secretary previously at the Magistrate Division. That argument is misplaced because proceedings in this division are de novo. ORS 305.425.
All references to the Oregon Revised Statutes (ORS) are to the 2003 edition.
Taxpayer further asserts that the court must deny a request from the county for a protective order because the county has failed to show good cause. The county has not moved for a protective order; rather, the parties, in part, have asked the court for a preliminary ruling on the issue of whether the county may exclude corporate witnesses from the deposition of a corporate representative. Taxpayer's arguments relating to a motion that the county may file are not justiciable at this time.
The court concludes that corporate witnesses may witness any deposition because those proceedings are generally open to the public. If the county desires to exclude a corporate witness from the deposition of the corporate representatives, the county must comply with the rules of the court related to the filing of a protective order.
V. CONCLUSION
Based on the foregoing, the court concludes that tax-payer may, at this time, designate only one corporate representative to witness the depositions of corporate witnesses. Furthermore, absent a protective order, corporate witnesses may attend the deposition of the corporate representative.