Capana Swiss Advisors AG v. Rymark Inc., 2:23-cv-00467

Plaintiffs (Capana Swiss Advisors AG and AmeriMark Automotive AG) sued Defendants (Rymark Inc., Nicholas Markosian, John Kirkland, and Vicky Small) in the District of Utah.
Defendants sought to amend their counterclaims to include, among others, former AmeriMark director Nicolai Colshorn.
Defendants requested Colshorn's deposition after learning he had retired and moved to Switzerland; he was the director of AmeriMark for eight years.
Plaintiffs refused to produce Colshorn, arguing he retired and no longer has contact with AmeriMark.
Defendants filed a motion to compel AmeriMark to produce Colshorn for deposition, arguing his retirement was suspicious and he is a critical witness.
The court decided the motion on written submissions, not oral argument.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Compelling deposition of former director	Can't produce Colshorn; he's retired, no longer agent	Colshorn resigned to avoid deposition, is key witness	Denied; not a director or managing agent when noticed
Managing agent status at deposition time	Colshorn lacks AmeriMark authority, no control	Colshorn still linked to company, timing is suspicious	Status determined at deposition; not agent
Applicability of exceptions to managing agent rule	No exceptions apply; no control over Colshorn	Exceptions should apply due to suspicious circumstances	Exceptions not satisfied; court declines to apply
Difficulty of third-party/international discovery	Not legally relevant	Practical difficulties in foreign discovery	Irrelevant to Rule 30 analysis

Founding Church of Scientology, Inc. v. Webster, 802 F.2d 1448 (D.C. Cir. 1986) (discussing circumstances in which former employees may be considered managing agents)
E.I. DuPont de Nemours and Co. v. Kolon Indus., Inc., 268 F.R.D. 45 (E.D. Va. 2010) (status as managing agent determined at time of deposition)