FCC v. Mizuho Medy Co.

257 F.R.D. 679, 2009 U.S. Dist. LEXIS 54032, 2009 WL 1707937
CourtDistrict Court, S.D. California
DecidedJune 15, 2009
DocketCivil No. 07cv189 MMA (NLS)
StatusPublished
Cited by5 cases

This text of 257 F.R.D. 679 (FCC v. Mizuho Medy Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FCC v. Mizuho Medy Co., 257 F.R.D. 679, 2009 U.S. Dist. LEXIS 54032, 2009 WL 1707937 (S.D. Cal. 2009).

Opinion

ORDER:

(1) GRANTING SSL AMERICA’S MOTION TO COMPEL DEPOSITION OF FCC AND FOR SANCTIONS [Doc. No. 163]; and

(2) DENYING FCC’S CROSS MOTION FOR A PROTECTIVE ORDER AND REQUEST FOR SANCTIONS [Doc. Nos. 174, 176].

NITA L. STORMES, United States Magistrate Judge.

Defendant SSL Americas, Inc. (SSL) filed a motion to compel the deposition of Jay Atkins, the corporate designee of plaintiff FCC (FCC). SSL also seeks monetary sanctions to cover the costs and reasonable attorney’s fees incurred in trying to compel this deposition. FCC filed a cross-motion for a protective order to either limit the questioning of Atkins, or to require SSL to issue a notice of deposition of Atkins in compliance with Federal Rule of Civil Procedure 30(b)(6).1 FCC also seeks costs and fees from SSL with respect to its cross motion.

The court has reviewed all pleadings and papers filed with respect to the two motions. For the following reasons, the court GRANTS SSL’s motion to compel and request for sanctions and DENIES FCC’s cross motion for a protective order and request for sanctions.

Relevant Facts.

Defendant Benedict Zin issued a Rule 30(b)(6) deposition notice for FCC. He listed these topics on the notice: (1) communications between Zin and FCC, (2) an alleged Guaranty of Validity of Accounts dated April 20, 2006 (the Guarantee), (3) negotiations, and (4) communications about the Guarantee. No other party served a joinder of notice or a cross-notice of deposition to FCC.

On April 14, 2009, FCC produced Jay Atkins for deposition as FCC’s corporate desig-nee. Counsel for SSL attended the deposition. Counsel for Zin examined Atkins for approximately three and a half hours. FCC objected to questions that went beyond the scope of the deposition notice. Notwithstanding those objections, Atkins responded to the questions.

Next, SSL sought to ask its own questions of Atkins. Before SSL asked any questions, counsel for FCC objected on the basis that SSL did not file a cross-designation or cross-notice of deposition. SSL insisted that the cross-examination proceed, and that FCC could state any of its objections on the record. FCC requested that SSL “either limit the questioning to matters within the scope of Zin’s Depo. Notice, agree not to attempt to re-depose Atkins, or issue its own notice complying with FRCP 30(b)(6).” SSL attempted to begin the cross-examination. FCC instructed Atkins to not answer any questions and terminated the deposition.

Meet and Confer Efforts.

The parties dispute whether they made adequate meet and confer efforts before SSL [681]*681filed the motion to compel. At the deposition SSL argued there is no basis to preclude a party from cross-examining a witness at a deposition, so SSL should be allowed to proceed with its cross-exam of Atkins. FCC countered that SSL must serve a deposition notice before cross-examining its corporate designee.

The parties continued their meet and confer efforts through letters. On April 16, 2009, FCC offered to produce Atkins on May 14, 2009 in San Diego for a seven-hour period. But it would do so only if SSL served a Rule 30(b)(6) notice of deposition that set forth with particularity the subject matter of the examination. SSL did not directly respond to the offer and maintained that FCC improperly terminated Atkins’ original deposition and that its actions were sanctionable.

On April 21, 2009 SSL filed the motion to compel. FCC told SSL that the motion was premature because the parties had not finished their meet and confer efforts. SSL replied that it had made adequate meet and confer efforts as counsel discussed this issue both on and off the record at the deposition and then exchanged letters. Further meet and confer efforts continued up until the time FCC filed its opposition and cross-motion for a protective order.

Analysis.

SSL argues that cross-examination at a deposition is not limited by the scope of the matters listed in the deposition notice. It asserts that FCC should have noted its objections on the record and allowed the deposition to proceed. SSL argues that the only proper way for FCC to terminate the deposition would have been to immediately file a motion for a protective order.

FCC says it terminated the deposition because SSL “did not file a cross-designation or cross-notice” and it appeared to FCC that SSL was “going to go beyond the scope of th[e] deposition notice.”2 FCC also asserts that this is a unique situation where SSL, a non-noticing party, is trying to gain an unfair advantage by cross-examining Atkins on non-designated topics for the remaining time of his deposition and then possibly seeking to re-depose Atkins for a further seven hours. Finally, FCC states that it had always intended to seek a protective order, but believed the parties would resolve the dispute with further meet and confer discussions.3

When a party receives a Rule 30(b)(6) deposition notice, it must designate a knowledgeable person to fully prepare and “unevasively answer questions about the designated subject matter.” Bd. of Trs. of the Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D.Cal.2008) (internal quotations omitted). “[Bjecause Rule 30(b)(6) explicitly requires a company to have persons testify on its behalf as to all matters reasonably available to it, ... the Rule ‘implicitly requires persons to review all matters known or reasonably available to [the corporation] in preparation for the [Rule] 30(b)(6) deposition.’ ” Id. The deponent need not have personal knowledge of the designated subject matter. Id.

Regarding the examination and cross-examination of a witness in a deposition, Rule 30(c) states:

(1) The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence
(2) An objection at the time of the examination — whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition — must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

Under Rule 30(d)(3), the only grounds to terminate or limit a deposition is if “it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.”

There is no formal requirement for a party seeking to cross-examine a deponent [682]*682to serve a notice. Spray Products, Inc. v. Strouse, Inc., 31 F.R.D. 211, 212 (E.D.Penn. 1962) (stating that another party may examine a deponent on issues not addressed in the direct examination without serving a prior notice of deposition).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
257 F.R.D. 679, 2009 U.S. Dist. LEXIS 54032, 2009 WL 1707937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fcc-v-mizuho-medy-co-casd-2009.