3:17-cv-00012
D. Conn.Dec 12, 2017Background
- Plaintiff noticed the deposition of Dr. Andy Weymann, a Swiss citizen, without issuing a subpoena.
- Plaintiff argues Weymann is a "managing agent" of defendant Smith & Nephew, Inc., so a notice (Fed. R. Civ. P. 30(b)(1)) suffices.
- Defendant contends Weymann is employed by Smith & Nephew Orthopaedics AG (a separate Swiss entity) and not a managing agent of Smith & Nephew, Inc., so the Hague Convention/subpoena procedures apply.
- Plaintiff points to an "Advisory Notice" signed by Weymann as "Chief Medical Officer, Advanced Surgical Devices Division, Smith & Nephew, Inc." and to FDA registration linking the Swiss entity to Smith & Nephew, Inc.
- The court evaluated the flexible multi-factor managing-agent test and concluded Weymann’s role and connections sufficed to treat him as a managing agent for deposition by notice.
- Court denied defendant’s motion for protective order, directed parties to meet-and-confer on a U.S. deposition location (or submit positions by a set date), and left admissibility and binding-effect issues for later.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Weymann is a "managing agent" of Smith & Nephew, Inc. for Rule 30(b)(1) deposition by notice | Weymann signed a company Advisory Notice as CMO of Smith & Nephew, Inc., and FDA records link the Swiss employer to Smith & Nephew, Inc.; these facts show managing-agent status | Weymann is employed by a separate Swiss entity (Smith & Nephew Orthopaedics AG) and not controlled by Smith & Nephew, Inc.; thus notice is insufficient and Hague/subpoena required | Court held Weymann is a managing agent for discovery purposes and may be deposed by notice |
| Proper deposition location | No objection to U.S. deposition; plaintiff seeks convenience in forum or other U.S. locations | Defendant argued deposition should occur in Switzerland or London | Court ordered parties to agree on a U.S. location (Memphis, Boston area, or Connecticut suggested); court will set location if no agreement |
Key Cases Cited
- Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79 (D. Conn. 2009) (resisting party bears burden to justify limiting discovery)
- Dove v. Atlantic Capital Corp., 963 F.2d 15 (2d Cir. 1992) (burden on party seeking protective order)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (Rule 26(c) grants broad discretion to trial court to issue protective orders)
- JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 220 F.R.D. 235 (S.D.N.Y. 2004) (an officer/director/managing agent may be compelled to testify via notice)
- United States v. Afram Lines (USA), Ltd., 159 F.R.D. 408 (S.D.N.Y. 1994) (non-managing foreign witness requires subpoena and Hague procedures)
- Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166 (S.D.N.Y. 1985) (corporate depositions often taken outside principal place of business for convenience)
- Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448 (D.C. Cir. 1986) (discovery rules are flexible and serve the ends of justice)