Curevo Inc v. Choe

• Court: District Court, W.D. Washington
• Decided: April 27, 2020
• Docket: 2:19-cv-00572
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CUREVO, INC., 8 NO. C19-0572RSL Plaintiff, 9 v. AMENDED ORDER DENYING 10 PLAINTIFF’S MOTION FOR SENYON TEDDY CHOE, PROTECTIVE ORDER 11 Defendant. 12 13

14 This matter comes before the Court on plaintiff’s “Motion for Protective Order 15 Regarding the Deposition of Curevo Board Member Young-Seob Park.” Dkt. # 57. Mr. Park 16 17 became a member of Curevo’s Board in May 2019, after the events giving rise to this litigation 18 took place. It is undisputed that Mr. Park has information regarding the claims and defenses 19 asserted, however: he was an employee of Curevo’s majority shareholder when Curevo was 20 created and was involved in the new corporation’s foundational business agreements and 21 dealings, he collaborated with defendant and/or Curevo on Curevo projects, and he reported on 22 23 Curevo to the majority shareholder. Curevo seeks to quash defendant’s notice for Mr. Park’s 24 deposition, arguing that defendant must subpoena Mr. Park under Rule 45 because the events 25 about which he will be asked to testify occurred before he joined Curevo’s Board. 26 Federal Rule of Civil Procedure 30(b) provides two methods by which to obtain the 27 AMENDED ORDER DENYING PLAINTIFF’S 1 testimony of a corporate party. Under Rule 30(b)(6), defendant would be permitted to name the 2 corporation as the deponent and allow plaintiff to designate one or more representatives to speak 3 regarding the matters identified in the notice. In the alternative, defendant may identify a 4 particular officer, director, or managing agent of the corporation as the deponent under Rule 5 30(b)(1). Such notice compels the corporate party to produce the identified officer, director, or 6 7 managing agent without need of subpoena: failure to do so risks the imposition of sanctions, 8 such as default or dismissal. See Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 627 n.1 (C.D. 9 Cal. 2005) (quoting Schwarzer, Tashima & Wagstaffe, CALIFORNIA PRACTICE GUIDE: FED. 10 CIVIL PROCEDURE BEFORE TRIAL §§ 11:1419, 11:2226 (2005 rev.)). 11 Despite acknowledging that Mr. Park is a Curevo director and that he has relevant 12 information, plaintiff seeks a protective order preventing Mr. Park’s deposition under Rule 13 14 30(b)(1) because (i) the relevant information he has was obtained prior to his becoming a Curevo 15 director and (ii) any information he obtained as a Curevo director should be obtained through 16 other, less burdensome means, such as a Rule 30(b)(6) deposition. Plaintiff offers no support for 17 its temporal limitation on Rule 30(b)(1). “Ordinarily, managing agent status is determined as of 18 the time of the deposition, not as of the time when the activities disputed in the litigation 19 20 occurred.” E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc., 268 F.R.D. 45, 49 (E.D. Va. 21 2010) (citing In re Honda, Am. Motor Co., 168 F.R.D. 535, 540 (D. Md. 1996)). See also RePet, 22 Inc. v. Zhao, 2018 WL 9802098, * 7 (C.D. Cal. Jan. 16, 2018). A corporation must produce for 23 deposition its officers, directors, and managing agents while they hold those positions and have 24 the power to speak for the corporation. This requirement is subject to certain protections granted 25 to “apex” executives who do not have first-hand, non-repetitive knowledge of relevant facts, but 26 27 AMENDED ORDER DENYING PLAINTIFF’S 1 plaintiff has not shown that this exception applies here. Mr. Park brought with him to his role at 2 Curevo first-hand knowledge of and information regarding the events giving rise to this 3 litigation. He is properly subject to deposition under Rule 30(b)(1) as a current director, and 4 Curevo does not argue that any other officer, director, or managing agent can testify as to the 5 events in which he participated or about which he has information. Curevo must, therefore, 6 7 produce Mr. Park for deposition without insisting on a subpoena. The final determination as to 8 whether his testimony binds Curevo on any particular issue will be made at trial. See Calderon v. 9 Experian Info. Sols., Inc., 287 F.R.D. 629, 634 (D. Idaho 2012). 10 11 For all of the foregoing reasons, plaintiff’s motion for a protective order is DENIED, as is 12 defendant’s request for an award of fees and costs incurred in responding to the motion. Mr. 13 14 Park shall appear for deposition before discovery closes on May 17, 2020. Within three days of 15 the date of this Order, the parties shall meet and confer regarding the possibility of taking Mr. 16 Park’s deposition by video and a mutually agreeable date for the deposition. 17 18 Dated this 27th day of April, 2020. 19 A 20 Robert S. Lasnik United States District Judge 21 22 23 24 25 26 27 AMENDED ORDER DENYING PLAINTIFF’S