Opinion
Civil Action No. 00-30141-MAP.
April 26, 2001.
MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO QUASH AND FOR PROTECTIVE ORDERS (Docket No. 19)
Presently before the court for reconsideration is Shoe Show of Rocky Mount, Inc. ("Defendant")'s above-captioned motion, which, in applicable part, seeks to quash Stephanie Smith ("Plaintiff")'s deposition notice of John Parker ("Parker"), a former district and a current store manager. Should that part of the motion be denied, the motion also seeks to forbid Plaintiff from requiring either Parker, who lives in Newburgh, New York, or Jay Manning ("Manning"), who oversees Defendant's human resources and legal matters out of Concord, North Carolina, from traveling to Springfield for depositions. For the reasons which follow, the court will deny the motion insofar as it seeks to quash or relocate Parker's deposition, but will allow the motion insofar as it seeks to protect Manning from traveling to Springfield.
I. BACKGROUND
Plaintiff's amended complaint alleges that Defendant engaged in gender discrimination, sexual harassment and retaliation. The conduct allegedly occurred while Plaintiff was permanently assigned as a store manager in Lanesboro, Massachusetts, one of 730 retail outlets operated by Defendant under different names in twenty-eight states.
Parker, who was a district manager for two months in the fall of 1999, allegedly participated in a campaign of harassment in retaliation for Plaintiff's claim of sexual discrimination against her and other female employees. Plaintiff claims that this campaign culminated in her suspension and constructive discharge after Parker visited her in Massachusetts in November of 1999.
Plaintiff also alleges that from approximately October 21, 1999, until her constructive discharge, she notified Manning on several occasions of incidents of sexual discrimination and harassment against her and other female employees, as well as incidents of retaliation. According to the complaint, Manning, on behalf of Defendant, failed to take appropriate responsive action.
II. DISCUSSION
The court will first consider the request to quash. It will then turn to the question of locale as raised in the request for protective orders.
A. REQUEST TO QUASH
As to Defendant's request to quash Parker's deposition, it appears that Plaintiff seeks Parker's deposition via Fed.R.Civ.P. 30(b)(1). Defendant concedes that a Rule 30(b)(1) deposition notice may appropriately target "an officer, director or managing agent." GTE Products Corp. v. Gee, 115 F.R.D. 67, 69 (D. Mass. 1997). Defendant asserts, however, that Plaintiff is not permitted to notice Defendant's deposition through Parker because he is not a managing agent of the corporation. It is undisputed that Parker is not an officer or director.
The managing agent test is a "functional one." In re Honda Am. Motor Co. Dealership Relations, Litig., 168 F.R.D. 535, 540 (D.Md. 1996). A "managing agent" is defined as (1) "a person invested by the corporation with general powers to exercise his judgment and discretion in dealing with corporate matters"; (2) "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"; and (3) "who can be expected to identify himself with the interest of the corporation rather than with those of the other parties." Reed Paper Co. v. Proctor Gamble Distrib.Co., 144 F.R.D. 2, 4 (D.Me. 1992) (citations and internal quotation marks omitted).
Defendant argues that Parker does not satisfy either of the first two prongs of the test set out in Reed Paper. Parker avows that he is merely the manager of Defendant's Newburgh, New York, store. Although he is "responsible for all aspects of the Newburgh's store operations," he disclaims any "corporate responsibilities that extend beyond the Newburgh store." (Docket No. 19: Defendant's Motion to Quash and for Protective Orders, Exhibit 2 (Affidavit of John Parker) ¶¶ 3,5.)
In the court's opinion, Defendant's argument must fail. There can be no dispute that Parker "was a `managing agent' . . . at the time of the transactions at issue in this lawsuit." Boston Diagnostics Dev. Corp. v. Kollsman Mfg. Co., Div. of Sequa Corp., 123 F.R.D. 415, 416 (D.Mass. 1988). As indicated, Parker was a district manager whose actions lie at the heart of Plaintiff's claims. Moreover, Parker remains a managing agent to the present time, albeit in a somewhat different capacity. Nonetheless, Parker's present management responsibilities sufficiently invest him with powers to exercise his judgment and discretion in dealing with corporate matters and to carry out Defendant's direction to give testimony at the demand of a party engaged in this litigation. To conclude otherwise would absolve Defendant's 730 store managers throughout the country from any corporate responsibility. Accordingly, Defendant's motion, to the extent it seeks to quash Parker's deposition, will be denied.
B. PROTECTIVE ORDERS
Defendant asserts in the alternative that Parker and Manning are in need of protective orders forbidding Plaintiff from requiring either or both of them from traveling to Springfield for depositions. Neither Parker nor Manning live in Massachusetts or travel here for business or personal reasons, Defendant asserts, and are strongly opposed to having to come here for the sole purpose of their depositions. Moreover, Defendant asserts, both Manning's and Parker's responsibilities necessitate their ongoing presence in their respective employment locations.
Pursuant to Federal Rule of Civil Procedure 26, a party from whom discovery is sought may seek an order of protection. In response to a motion for protection, a court can order that discovery not be had or that it go forward "only on specified terms and conditions, including a designation of the time or place." Fed.R.Civ.P. 26(c). See In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987).
Although some courts have presumed that the deposition of a corporation through its agents should be taken at the corporation's principal place of business, see Pinkham v. Paul, 91 F.R.D. 613, 615 (D.Me. 1981); Fortune Mgmt., Inc. v. Bly, 118 F.R.D. 21, 22 (D.Mass. 1987); but see Producers Releasing Corp. de Cuba v. PRC Pictures, 8 F.R.D. 254, 256 (S.D.N.Y. 1948) (as a general rule, officers of corporations must be deposed in district where suit is pending), that presumption "appears to be merely a decision rule that facilitates determination when other relevant factors do not favor one side over the other." Bank of New York v. Meridien BIAO Bank of Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N Y 1997) (quoting Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989)). Under such circumstances, a court, when making its determination, may consider a number of factors, including the following:
[the] location of counsel for the parties in the foreign district[;] the number of corporate representatives a party is seeking to depose[;] the likelihood of significant discovery disputes arising that would necessitate resolution by the foreign court; whether the persons sought to be deposed often engage in travel for business purposes; whether defendant has filed a permissive counterclaim; and the equities with regard to the nature of the claim and the parties' relationship.
Rapoca Energy Co., L.P., v. AMCI Export Corp., ___ F.R.D. ___, 2001 WL 118511, at *2 (W.D.Va. Jan. 6, 2001). At bottom, however, the court must consider each case on its own merits. See Turner v. Prudential Ins. Co. of Am., 119 F.R.D. 381, 383 (M.D.N.C. 1988).
In the court's opinion, Parker's deposition ought to go forward in Springfield. Not only are counsel for both parties located in Massachusetts, but equity with respect to Plaintiff's claims calls for Parker's presence here. Those claims, as they relate to Parker, all took place in Massachusetts while he was a district manager.
The fact that Parker subsequently became a store manager in Newburgh, New York, and has responsibilities there does not alter the fact that he should well have expected to be pulled back to Massachusetts under the circumstances alleged by Plaintiff in her complaint. That he may have no present plans to come to Massachusetts is of little moment.
The situation is different with Manning. It appears that Manning operated out of North Carolina at all relevant times. Moreover, while Manning allegedly was directly involved in a few of the events underlying the complaint, he appears to have been acting in a purely administrative capacity. Thus, it is likely that Manning will have more convenient access to relevant corporate records in North Carolina should the deposition occur there. Finally, Defendant has adequately supported its contention that Manning, and hence Defendant, would be unduly burdened should he be required to attend the deposition in Massachusetts. In contrast, the court is not convinced that Plaintiff, although making generalized assertions to the contrary, is not able to absorb the costs of taking Manning's deposition in North Carolina.
Without more, the court is convinced that Defendant's motion, to the extent it seeks to change the venue of Manning's deposition, should be allowed.1
III. CONCLUSION
For the reasons stated, Defendant's motion is ALLOWED insofar as it seeks to change the site of Manning's deposition, but otherwise DENIED.
The parties, of course, may consider taking appropriate depositions by telephone or other remote electronic means. See Fed.R.Civ.P. 30(b)(7).
IT IS SO ORDERED.