Opinion
06-MC-64E.
October 30, 2006
ORDER
WHEREAS the parties to this matter are engaged in litigation in the U.S. District Court for the Northern District of Georgia, Atlanta Division (06-CV-0714-ODE, hereinafter "the underlying litigation") wherein plaintiffs seek injunctive relief claiming that defendants have been impermissibly selling tickets for plaintiffs' boat rides; and
WHEREAS, on September 28, 2006 defendant Windsor, pro se, obtained Subpoenas, issued by the U.S. District Court for the Western District of New York, to take deposition testimony of the following individuals and served them in the following manner: Ms. Gina Thomas and Ms. Sandra Carlson were personally served in Ontario, Canada; Mr. Vanik Aloian (identified in the subpoena as "Mr. Vanik"), Mr. Christopher Glynn and Mr. Robert Schul were personally served in Niagara Falls, New York; and WHEREAS on October 4, 2006, defendant Windsor served a Notice of Deposition on opposing counsel indicating the dates and locations in this District for the proposed depositions of the above subpoenaed individuals. Each of the dates scheduled for the depositions was within twenty days of the date of the aforesaid Notice; and
WHEREAS plaintiffs have made a motion in this Court for a Protective Order and to Quash the Subpoenas and Notice of Depositions of the above individuals and for sanctions; and
WHEREAS this Court granted plaintiffs' ex parte motion for an expedited hearing of this motion, defendant Windsor has submitted a response to the motion and the parties have appeared before the Court for oral argument thereon; and
WHEREAS the grounds for plaintiffs' motion are two-fold. First, plaintiffs claim that defendant Windsor failed to comply with Rule 30(a) of the Local Rules of Civil Procedure for this District which requires that any Notice to depose a party or other witness in this District be served at least twenty days prior to the date set for the examination. Second, two of the subpoenaed witnesses, Ms. Gina Thomas and Ms. Sandra Carlson, are Canadian citizens who reside and work in Canada, were not personally served in New York, and therefore are not subject to jurisdiction here; and
WHEREAS the Local Rules of Civil Procedure for the Western District of New York apply to the subject Subpoenas issued in this District and Notices for depositions, no matter how captioned, which are to be conducted here. This in no way affects the procedural rules to be followed in the underlying case in Georgia and only relates to compliance regarding subpoenas and depositions to be served and conducted here; and
The caption of the subject Notices lists the Northern District of Georgia, Atlanta Division as the locale of the underlying case, but clearly notices depositions to be conducted in this District.
Windsor had argued that the local rules of this District do not apply here — that only the local rules of the jurisdiction where in the underlying case is pending applies to all aspects of the case, including this matter. This argument is rejected. "When a party pursues discovery outside the jurisdiction in which its suit is pending, the jurisdiction of the local district court may be invoked to rule on discovery issues in an ancillary proceeding." Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975, 977 (Fed. Cir. 1993), citing Solarex Corp. v. Arco Solar, Inc., 870 F.2d 642, 643 (Fed. Cir. 1989).
WHEREAS defendant Windsor argues that plaintiffs lack standing to bring the motion because the subpoenaed individuals are non-party witnesses; and
WHEREAS the parties agree that the individuals subpoenaed are not parties to the underlying litigation and that they are employees of plaintiffs. Ms. Thomas, Ms. Carlson and Mr. Aloian are not officers, managers or directors of the plaintiff corporations. On the other hand, Mr. Glynn and Mr. Schul, as President and Comptroller respectively, are officers, managers or directors of one of the plaintiff corporations; and
WHEREAS the Court finds that plaintiffs lack standing to bring the motion on behalf of Mr. Aloian; and WHEREAS the Court also finds that issue of standing with respect to the motion brought on behalf of Ms. Thomas and Ms. Carlson is immaterial because these individuals are Canadian citizens who reside and work in Canada. The Subpoenas, were served upon them outside of the United States and are therefor unenforceable because this Court has no subpoena power or jurisdiction outside of the United States over these individuals. The Subpoenas and Notice with respect to these individuals must therefore be quashed on this ground; and
"%%% [A] corporate employee or agent who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. Such an employee is treated as any other non-party witness, and must be subpoenaed pursuant to Rule 45 of the Federal Rules of Civil Procedure; or, if the witness is overseas, the procedures of the Hague Convention or other applicable treaty must be utilized." U.S. Fidelity Guar. Co. v. Braspetro Oil Services Co., 2001 WL 43607, *2 (S.D.N.Y. 2001) (internal citations omitted). Generally, a party does not have standing to object to a subpoena issued to a third-party witness absent a claim of privilege or a proprietary interest in the subpoenaed testimony or documents. McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995), citing Langford v. Chrysler Motors Corp., 513 F.2d 1121 (2d Cir. 1975) (other citations omitted). Plaintiffs make no such proprietary or privilege claims.
Even if the Court were to consider the issue of standing with respect to these individuals, it could be persuaded to find that plaintiffs had standing, or even to construe that the individuals themselves had made the motion, because the individuals filed affidavits in support of the motion, both stating that they "want to ensure that [they are] protected from having to appear" and that they "want the Notice of Deposition and subpoena quashed". (Dkt. ##5 6, ¶ 7 in both). See generally, U.S. v. Nachamie, 91 F.Supp.2d 552, 560-61 (S.D.N.Y. 2000) (The government's argument that it has standing as a representative of third-party witnesses was appealing but ultimately insufficient); U.S. v. Chen De Yian, 1995 WL 614563, *2 (S.D.N.Y. 1995) (allowing the government to move to quash on behalf of non-party witness).
See The Apollon, 22 U.S. 362 (1824); Blackmer v. U.S., 284 U.S.421, 437, 52 S.Ct. 252, 254-55 (1932); see also, U.S. Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76, 108 S.Ct. 2268, 2270 (1988); Janssen v. Belding-Corticelli, 84 F.2d 577, 579 (3d Cir. 1936); compare Wilcox v. Hunt, 38 U.S. (13 Pet.) 378, 10 L.Ed. 209 (1839) (a state court cannot require the attendance of a witness who is a nonresident of, and is absent from, the state); State v. Rasor, 168 S.C. 221, 167 S.E. 396 (1933) (same).
WHEREAS the Court also finds plaintiffs have standing to make the motion on behalf of its officers Mr. Glynn and Mr. Schul and holds that the Notice of Depositions served by defendant Windsor failed to comply with Local Rule 30(a) and the Subpoenas and Notice of Deposition with respect to Mr. Glynn and Mr. Schul will also be quashed; and
WHEREAS the Court lastly finds that the plaintiffs' need to file this motion, as well as defendant Windsor's purported need to re-serve the Subpoenas and Notices and return to Buffalo for depositions are as much the result of plaintiffs not cooperating with defendants as they are defendants not cooperating with plaintiffs and neither sanctions nor costs will be awarded; it is accordingly
At oral argument on this motion plaintiffs' counsel informed the Court that, while Notice has been served in Georgia, depositions of its party representatives there have not yet been conducted, and that any information defendant Windsor may need from the witnesses who are the subject of this motion can either be gained, or at least more clearly defined, by deposing the party opponent first. While not ordering the parties to do so at this time, the Court strongly advises the parties to engage in the discovery that is available to them in the District in which the underlying case is pending before conducting further discovery in this District. See, Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975, 978 (Fed. Cir. 1993) (requiring the plaintiff to "seek discovery from its party opponent before burdening the nonparty" with discovery requests). The Court will strongly consider sanctions should the parties fail to heed this advice and further motions regarding discovery herein become necessary as a result thereof.
ORDERED that plaintiffs' motion is granted in part insomuch as the Subpoenas of Gina Thomas, Sandra Carlson, Robert Schul and Christopher Glynn and Notice of Deposition so far as it relates to them are hereby quashed, and in all other respects it is denied without costs or sanctions to either party.