MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT’S MOTION OBJECTING TO PLAINTIFF’S PROPOSED RULE 32(a)(2) USE OF DEPOSITION TRANSCRIPTS OF WITNESSES BENNETT, HUGHES, AND LUCIANO
The Court has before it for decision at this time Defendant’s Motion Objecting to Plaintiff’s proposed use of deposition transcripts of John Bennett, Thomas Hughes, and Debra Luciano pursuant to Federal Rule of Civil Procedure 32(a)(2) (Docket No. 58). The matter has been briefed by Defendant. The Court has heard counsel on the motion. At the hearing, Plaintiff’s counsel waived written response and made oral argument on the motion. Defendant points out that it relies, with respect to the extent of the authority of the three individuals in question, upon the contents of their respective affidavits submitted previously in support of Defendant’s Motion for Summary Judgment. The Court has reviewed those affidavits, as well as portions of the
The provisions of Federal Rule of Civil Procedure 32(a)(2), as pertinent here, read as follows:
The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rules 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
The depositions of Bennett, Hughes, and Luciano have previously been taken in this matter, and Plaintiff’s counsel has indicated in pretrial preparation an intent to use excerpts of each of those depositions pursuant to the rule, contending that each of them is a “managing agent” within the meaning of the rule.
A three-pronged test for the determination of who is a “managing agent” within the rule was formulated many years ago in the case of Rubin v. General Tire and Rubber Co.,
First, the employee should be ‘a person invested by the corporation with general powers to exercise his judgment and discretion in dealing with corporate matters.’ Second, the employee should be a person who ‘could be depended upon to carry out his employer’s direction to give testimony at the demand of a party engaged in litigation with the employer.' Third, the employee should be a person who can be expected to identify himself with the interests of the corporation rather than with those of the other parties.
Rubin,
The application of the test with respect to Mr. Hughes is not made necessary. It is established that Mr. Hughes was not at the time of the taking of his deposition employed by the defendant corporation. However, Plaintiff contends that because Mr. Hughes was employed by Procter & Gamble Paper Manufacturing Company at the time his deposition was taken, he identifies with and is loyal to the Procter & Gamble family of companies. Thus, Plaintiff contends, he should be considered a “managing agent” for Procter & Gamble Distributing Company. In order to reach that conclusion, the Court would be required to pierce Procter & Gamble Distributing Company’s corporate veil. The record in this case does not permit the Court to take such action.
The text of the rule is very specific in restricting its application to those persons “who at the time of the taking of the deposition” were officers, directors, or
With respect to John Bennett, the application of the test involves only a determination of whether he falls within the description of the first prong of the test. The record here made makes it clear that Mr. Bennett, at the time of the taking of his deposition, was a sales representative for a territory which included the State of Maine. There is no demonstration in the record that he had any authority on behalf of the company to do anything other than sell or attend to the selling of the particular product in question in this case. There is no showing that he had any general power to exercise his discretion and judgment in dealing with corporate matters. He performs typical, active sales functions. That being the case, his deposition may not be used against the corporate defendant under Rule 32(a)(2).
With respect to Debra Luciano, the question is somewhat closer. It is clear that she meets the second and third prongs of the Rubin test. It is apparent that she can be depended upon to carry out the corporate defendant’s direction to give testimony if demanded by a party involved in litigation with the corporate defendant. Further, the Court is satisfied, and does find, that she can be expected to identify herself with the interests of the corporation rather than with the interests of other parties. The question then becomes whether she is invested with general powers to exercise her discretion and judgment in dealing with corporate matters. Careful
The record made discloses three particular types of corporate activity and decision-making in which Ms. Luciano might be involved. The first of these is set forth in her affidavit as the authority to assess the performance of the corporate defendant’s Attends representatives, including the Plaintiff in this case. Affidavit of Debra J. Luciano dated July 30, 1992, ¶¶ 7-13, at 2-7. There is no demonstration that she had authority to do other than make such assessments and to pass them on to her superior, Mr. Baker, apparently from time to time with her recommendations. It is not demonstrated that she is authorized at any time to make any decision or to take any action with respect to any distributor on the basis of her assessments of performance. The record shows that she simply provides assessments and recommendations to Mr. Baker.
Second, the record discloses that a decision was made during her continuance in office not to offer a certain rebate promotion to the Plaintiff and to offer it only to a competing distributor in the Maine market. Id., ¶ 13, at 7. Yet, the record discloses that that decision was made jointly by her and Mr. Baker. There is no indication in the record that she could or would have undertaken to make that decision absent Mr. Baker’s joining in it. In that sense, it is very clear that she had no general power to make a decision herself with respect to that particular corporate matter.
Finally to be considered is the decision that was made to terminate the Plaintiff as an Attends distributor. That decision, the record discloses, was made by Mr. Baker, not by Ms. Luciano. She states clearly that she read the letter dated July 16, 1991, authored by Mr. Baker, which informed Mr. Campbell of the Plaintiff, inter alia, that the Defendant would terminate the Plaintiff as an Attends distributor effective September 30, 1991. Id., ¶ 15, at 8. While she indicates that she informed Mr. Baker that she agreed with the termination decision, there is nothing in the record to indicate that she had any authority, or that she would have undertaken on her own initiative to exercise any authority, to terminate the Plaintiff as an Attends distributor. There is simply no showing that she could have or did, in fact, exercise any general power with respect to corporate matters. Whether or not such powers allowed for the exercise of her discretion and judgment is academic.
Hence, Ms. Luciano meets the latter two prongs of the Rubin test but fails to meet the first prong. Balancing what the Court thinks to be the relative weight of the considerations that underlie the various facets of the Rubin test, the Court is satisfied that the fact that a person fails to qualify as one exercising general powers involving the exercise of discretion and judgment with respect to corporate matters is of great significance in determining whether that person should be permitted to bind the corporation in deposition by testimony. It clearly outweighs in significance, in the view of this Court on the facts of this case, the significance of the fact that Ms. Luciano meets the second and third prongs of the Rubin test.
Notes
. Defendant has advised the Court and counsel that the three witnesses will be available to testify at trial at the expense of the Defendant and that on reasonable advance notice, Defendant’s counsel will bring them on to be available to testify in Plaintiffs case-in-chief.
. Plaintiff places principal reliance for this proposition on Boston Diagnostics Development Corp. v. Kollsman Manufacturing Co.,
. The Court does not find the Kollsman decision — which is that of a United States Magistrate, not of a District Judge — to be persuasive in other respects. This Court believes that it is clearly erroneous to determine on the face of the language of Rule 32(a)(2) that the corporate defendant may still be required to produce an employee who is no longer in the employ of the corporate defendant. See Kollsman,
It also appears that if Mr. Gallagher was a 'managing agent’ of one or more of the plaintiffs at the time of the transactions which form the basis of this lawsuit but is not now in such a position, the plaintiffs may still be required to produce him (unless his loyalty is questioned) despite the plain wording of Rule 32(a)(2), Fed.R.Civ.P., that a deposition is not admissible against a corporation unless the deponent was ‘at the time of the taking of the deposition ... an officer, director or managing agent.’
Id. (emphasis in original). The Magistrate cites for that proposition “Wright & Miller, Federal Practice and Procedure: Civil § 380, citing Fay v. United States,
If the corporation is to be accountable for what was said, the person examined must have been an officer, director, or managing agent at the time the deposition was taken. This is stated explicitly in Rule 32(a)(2) and is fairly to be implied from Rule 37(d). The purpose is to protect the party from the admissions of disgruntled former officers or agents.
8 C. Wright and A. Miller, Federal Practice and Procedure § 2103, at 379 (footnote omitted). See also Independent Productions Corp. v. Loew's, Inc.,
Moreover, the Fay case also supports the contrary of the proposition for which it is there cited. In that opinion, the court acknowledged that "[a] corporate party may not be examined by ... a managing agent who is no longer in the employ of the corporation.” Fay,
The deposition of a private corporation may be taken by the master of its vessel who is in control of the vessel at the time of the injury for which suit is brought ... [omitting citations] even though the person formally serving as master is serving as the chief mate of another vessel at the time the defendant’s deposition is sought.
Id. Consultation of the Curry opinion establishes that the captain in question was serving as chief mate of another vessel of the defendant corporation. Hence, the application of this rule does not involve any abrogation of the language of Rule 32(a)(2) requiring that a managing agent be such at the time the deposition is sought. The Kollsman case is clearly wrong on this point.
. Two of the older cases express the view that the third factor of the Rubin test is the "paramount test.” In the first of these, Newark Insurance Co. v. Sartain, 20 F.R.D. 583 (N.D.Cal.1957), the question was whether an insurance agent was a managing agent under the predecessor Rule 32(a)(2). In Sartain, Judge Halbert adopted the Rubin test and then stated:
It seems to me that [the third prong] is the paramount and perhaps the really determinative one, for it would be eminently unfair to the principal to have to be bound by the testimony of a person who was not (at least supposed to be) completely loyal to the principal.
Id. at 586. In that case, however, there was no factual question, as the fact statement of the opinion shows, about the employee’s status as an authorized agent of the corporate party who performed pursuant to general powers to exercise his discretion and judgment in dealing with corporate matters. The employee was the sole agent for the corporate party in the town of Colusa, California. He there conducted his business as an agent for several insurance companies. He was authorized to solicit and make
However, it is the view of this Court that where there is question about the existence of an agency relationship of the kind required by the Rule, that question is the foundational question to be resolved in determining whether or not, under the Rule’s language, the corporation should be bound in deposition by the testimony of the employee. It is apparent to this Court that the theory of the provision in the Rule is that the corporation may properly and fairly be treated as bound by statements of a person who is authorized to act for the corporation with general powers involving the exercise of discretion and judgment in respect to corporate affairs. The theory is one of “a speaking agency.” The requirement of general powers is intended to assure that the scope of the authority granted to the employee in question may fairly be taken to be broad enough to contemplate that the employee may speak for the corporation in doing business on behalf of the corporation. If this theory be correct, and I believe it to be, then it is of fundamental importance that there be an agency relationship between the corporation to be deposed and the employee to be utilized to speak for the corporation in the deposition, and that that agency relationship be of sufficient breadth to justify the conclusion that the corporation may fairly be bound by what the agent says in respect to his management of corporate affairs. Viewed in this context, the first prong of the Rubin test is the one, in the view of this Court, that must be given paramount weight in making the determination in question.
The other case, taking Judge Halbert’s view, is that of Independent Productions Corp. v. Loew’s, Inc.,
. In oral argument at the time of the hearing, Plaintiff's counsel relied principally upon two cases cited to the Court. They were Boston Diagnostics Development Corp. v. Kollsman Manufacturing Co.,
Further, the facts of Terry established the existence of an employment relationship clearly indicating a very broad and general power of the employee; much more so than does the record here. In the Terry case, the Court concluded that the employee appeared "to be in complete charge of the negotiation and sale of insurance contracts” and that it also appeared "that at least he has the duties and powers of an insurance supervisor and appears to be ‘clothed’ with at least apparent authority, if not actual authority, of a ‘managing officer or agent'.” Terry,
The Defendant urges that these cases be distinguished because they both deal only with the question of whether a corporate defendant is required to produce a corporate witness for deposition testimony as opposed to whether that testimony may be used pursuant to Rule 32(a)(2). Such a distinction may well have significance, but it is not necessary to post the rejection of these authorities upon that consideration in this case.
The Court notes that its research discloses that the only decision by the Court of Appeals for the First Circuit dealing with the question of the definition of a "managing agent" (there pursuant to Federal Rule of Civil Procedure 30(b)(6)) is Atlantic Cape Fisheries v. Hartford Fire Insurance Co.,