Opinion
97 Civ. 6124 (JGK) (THK), 98 Civ. 3099 (JGK) (THK).
December 28, 2000.
MEMORANDUM OPINION AND ORDER
Presently before the Court is an application of the plaintiff-sureties for an order providing that the depositions of two former employees of Marubeni America Corporation ("MAC"), Hiro Tamba and Nasazumi Hazegawa, taken in March 1999 in connection with the MAC payment bond action in New York state court, be treated as if they had been taken in this action. See Letter of Jacob C. Cohn, Esq., dated November 10, 2000 ("Cohn Letter"). The Petrobras defendants oppose this request, arguing that they were not parties to the state court action, were not invited to and did not attend the state court depositions, and that therefore, under Federal Rule of Civil Procedure 32(a), the depositions may not be used against them in this action. See Letter of Howard L. Vickery, Esq., dated November 17, 2000 ("Vickery Letter"). MAC has no objection to the state court depositions being used against it, for evidentiary purposes, in this action. See Letter of Edward Flanders, Esq., dated November 16, 2000 ("Flanders Letter"). MAC was a party to the state court action and defended the depositions in issue. Nevertheless, in view of Petrobras' position that it has never had an opportunity to question these witnesses, and because MAC may wish to call Mr. Tamba as a witness in this action, MAC has agreed to ask Mr. Tamba (through his current employer Marubeni Corporation ["Marubeni"]) to appear for deposition in Japan where he lives and works, and it appears that he has voluntarily agreed to do so. See id.
MAC declines to make any request of Mr. Hazegawa to comply with the sureties' deposition notice, because he is presently not its employee, officer, director or managing agent, and it has no intention of calling him as a witness in this action.
The sureties argue first that the state court depositions should be fully admissible in this action against the Petrobras defendants, because Petrobras' and MAC's interests are closely aligned, and Petrobras' interests were fully represented by MAC at the state court depositions. See Cohn Letter. In the event the Court determines otherwise, and holds that the Petrobras defendants and the Japanese banks should have the opportunity to examine these individuals in this action, the sureties argue that MAC should be directed to produce these witnesses in New York for their depositions because they are under MAC's control. See id. For the following reasons, the sureties' application is denied.
I. Admissibility of the Depositions
Rule 32(a) of the Federal Rules of Civil Procedure governs the use of depositions in court proceedings. Most relevant to the sureties' request, the final paragraph of Rule 32(a)(4) addresses when depositions taken in prior proceedings may be treated as if they have been taken in a subsequent proceeding. Rule 32(a)(4) provides, in pertinent part:
. . . .when an action has been brought in any court of the United States or of any State and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
Fed.R.Civ.P. 32(a)(4). The party seeking to make use of depositions under Rule 32(a), in this case the sureties, bears the burden of establishing that the requirements of the Rule have been met. Cf. Allgeier v. United States, 909 F.2d 869 (6th Cir. 1990) ("The party seeking to admit a deposition at trial must prove that the requirements of Rule 32(a) have been met.");Frazier v. Forgione, 881 F. Supp. 879, 880 (W.D.N.Y. 1995) (finding that where plaintiff sought to admit deposition testimony under Fed.R.Civ.P. 32(a)(3)(B), it was his burden to establish that the Rule's requirement were satisfied);Paramount Payphones, Inc. v. Branch, Nos. 98-15744-8C7, 99-557, 2000 WL 1863110, at *1 (Bankr. M.D.Fla. Dec. 14, 2000) (where plaintiff sought to have depositions taken in a prior proceeding treated as if they had been taken in a subsequent proceeding, plaintiff bore the burden of establishing that the depositions conformed to the requirements of Fed.R.Civ.P. 32(a)(4))
Once the requirements of this last paragraph of Rule 32(a) (4) are satisfied, and the depositions taken in a prior proceeding are thus considered as if they have been taken in the subsequent action, the use of these depositions at trial is then determined under the other provisions of Rule 32 as well as the Federal Rules of Evidence. See 8A Charles Alan Wright, Arthur R. Miller Richard L. Marcus, Federal Practice and Procedure § 2142 at 159 (2d ed. 1994) ("In considering the use of depositions at a trial or hearing, it is helpful to remember that the problem has two aspects. First, the conditions set forth in Rule 32(a) must exist before the deposition can be used at all. Second . . . it must be determined whether the matters contained in it are admissible under the rules of evidence."); Kolb v. County of Suffolk, 109 F.R.D. 125, 127 (E.D.N.Y. 1985) (citing Wright Miller); but see 7 James Wm. Moore, et. al., Moore's Federal Practice ¶ 32.63[3] (3d ed. 2000) ("the Federal Rules of Evidence permit a broader use of depositions taken under certain circumstances"); Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 962-963 (10th Cir. 1993) (stating that Fed.R.Civ.P. 32(a) and the Federal Rules of Evidence are independent grounds for admitting depositions at trial). The sureties cite Fed.R.Evid. 804(b)(1) in support of their application, see Cohn Letter at 2 n. 2, but its relevance to their application is unclear. Fed.R.Evid. 804(b)(1) provides a hearsay exception for former testimony where a witness is unavailable, and governs the admissibility of that testimony at trial. The application before the Court simply seeks to have the depositions of Messrs. Tamba and Hazegawa treated as if they had been taken in the instant action. it would be premature at this stage for the Court to determine the extent of their admissibility at trial, especially without information from the sureties about whether the witnesses will be unavailable, as is required under Fed.R.Evid. 804 (b)(1).
In making their application to the Court, the sureties did not cite to Rule 32(a)(4), nor did they conduct any analysis explicitly tailored to the Rule's requirements. Perhaps as a result, they failed to address, in any concrete manner, the Rule's first requirement — that the prior and subsequent litigation involve the same subject matter. Although the sureties make a passing reference to the state court litigation as being "related" to the instant action, see Cohn Letter, they have not provided the Court with any specific analysis of the ways in which the two actions are related, much less whether any similarity is sufficient to satisfy the requirements of Rule 32(a)(4) . Nevertheless, since the defendants have not argued that the subject matter of the state court litigation is not substantially related to the subject matter of this litigation, and in light of the fact that "[m]ost courts liberally construe the `same subject matter' . . . requiremen[t] in light of the twin goals of fairness and efficiency," 7 James Wm. Moore, et. al., Moore's Federal Practice ¶ 32.63 (3] (3d ed. 2000), for the purposes of this application, the Court will assume that the subject matters of the two litigations are substantially related.
The sureties' arguments consist largely of generalized statements that MAC and the Petrobras defendants are "closely aligned in interest," as evidenced by the assertion of a joint defense privilege in this action, and "were similarly aligned" during the state court litigation. See Cohn Letter. In addition, the sureties assert that the interests of the Petrobras defendants were "fully represented" by MAC at the state court depositions. See id. Ostensibly, these arguments address the second requirement of Rule 32(a)(4), which requires that the prior and subsequent actions be "brought between the same parties or their representatives or successors in interest." Fed.R.Civ.P. 32(a)(4).
The Petrobras and MAC defendants deny that they have a joint defense agreement. See Vickery Letter; Flanders Letter.
No one disputes that the Petrobras defendants were not parties to the state court litigation. In determining whether MAC's relationship to the Petrobras defendants falls within the scope of Rule 32(a)(4), the relevant inquiry is "whether the party-opponent in the prior case had the same motive and opportunity to cross-examine the deponent as the present opponent." Bankers Trust Co. v. Rhoades, 108 B.R. 423 (S.D.N Y 1989); see also Hertz v. Graham, 23 F.R.D. 17, 22 (S.D.N Y 1958), aff'd, 292 F.2d 443 (2d Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366 (1961). The sureties' conclusory remarks that MAC and Petrobras share the same interests in the current litigation, and that their interests were "similarly aligned" in the state court litigation, are simply insufficient to establish that MAC's interests in examining Messrs. Tamba and Hazegawa during the state court litigation are sufficiently similar to Petrobras' interests in examining them in the context of this litigation. First, although Petrobras and MAC are both defendants in the instant litigation, it is far from clear that their interests are co-extensive. See Flanders Letter ("Although the interests of MAC and Petrobras may coincide in certain instances [for example, each deny being a party to the Sureties' illusory conspiracy theory . . .], they diverge in many other and substantial respects."). Second, even to the extent that MAC's and the Petrobras defendants' interests are aligned in the instant case, the sureties' have provided no analysis of how their interests were "similarly aligned" in the state court litigation, nor of how any alignment of their interests would have led MAC and the Petrobras defendants to share a common motivation with regard to examining Messrs. Tamba and Hazegawa. Counsel for the Petrobras defendants has described at least one area in which the deponents' deposition testimony is potentially harmful to the Petrobras defendants, and irrelevant to MAC. See Vickery Letter. Thus, MAC would have had no motive to examine the deponents on this subject, while Petrobras would. Furthermore, any argument by the sureties that counsel for MAC had Petrobras' interests in mind during the state court depositions would also be unavailing, as counsel for MAC has made it clear that he "was not representing Petrobras' interests at [the state court] depositions [of Messrs. Tamba and Hazegawa]." Flanders Letter.
MAC initiated the state court action against the sureties in an attempt to collect on a payment bond issued by the sureties. Under the bond, the sureties had agreed that upon the default of IVI (the construction consortium), the sureties would pay MAC any amount remaining due for its sale to IVI of equipment used in connection with the P-19 Project. Neither Petrobras nor Brasoil was a party to the payment bond action; nor were they present at or served with notice of the depositions.
In sum, the depositions of Messrs. Tamba and Hazegawa, taken in the state court litigation between MAC and the sureties, do not satisfy the requirements of Fed.R.Civ.P. 32(a)(4), and the Court therefore denies the sureties' request to be permitted to treat the depositions as if they had been taken in the instant litigation.
II. Production of Messrs. Tamba and Hazegawa
The sureties request that in the event that the Petrobras defendants are held to be entitled to an opportunity to cross-examine Messrs. Tamba and Hazegawa at a further deposition, MAC should be directed to produce these witnesses in New York. See Cohn Letter. Although neither witness is presently an employee of MAC and both are living and working in Japan, the sureties argue that the witnesses are employed or controlled by MAC's parent, the Marubeni Corporation, and that MAC has a close enough relationship with its parent to obtain the presence of the witnesses for depositions in the United States. Moreover, since Marubeni is the guarantor of the Japanese banks' loan to Brasoil on the P-19 Project, and thus has an interest in MAC's success in this litigation, and because MAC intends to produce Mr. Tamba as a trial witness in New York, it is argued that MAC has the ability to arrange for these witnesses to come to New York for their depositions. See Cohn Letter.
However, Tamba and Hazegawa are no longer MAC's employees, and MAC correctly notes that it is only obligated to produce its officers, directors, or managing agents for deposition. See Boss Manufacturing Co. v. Hugo Boss AG, No. 97 Civ. 8495 (SHS) (MHD), 1999 WL 20828, at *2 (S.D.N.Y. Jan. 13, 1999) ("As a general matter, a corporation cannot be required to produce a former officer or agent for deposition since it does not have control over him.") (citations omitted); see also United States v. Afram Lines (USA) Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994) ("[A] corporate employee or agent who does not qualify as an officer, director or managing agent is not subject to deposition by notice. ") Moreover, early in this litigation, Judge Koeltl ordered that as a general matter, depositions were to be taken where deponents lived and worked, unless a deponent regularly commutes to New York. See Scheduling Order, dated December 15, 1999; see also Devlin v. Transp. Communications Int'l Union, Nos. 95 Civ. 0752, 95 Civ. 10838 (JFK) (JCF) , 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14, 2000) Consistent with this Order, MAC advised the sureties as long ago as January 2000, that it would not produce non-employees in New York. See Flanders Letter, at 3. There are means of taking depositions in Japan, and MAC has asked Mr. Tamba to make himself available for such a deposition. Accordingly, the Court declines to enter an order requiring MAC to produce Messrs. Tamba and Hazegawa for deposition in New York.
The Court is advised that in the event the sureties are unsuccessful on the instant motion, as a back-up measure they have begun the process of noticing Mr. Tamba's deposition in Japan. See Letter of Jacob C. Cohn, Esq., dated November 27, 2000, attached to Letter of Jacob C. Cohn, Esq., dated December 1, 2000.
SO ORDERED.