Weingand v. Harland Financial Solutions, Inc.

Filing 73

ORDER RE: LOCATION OF SCOTT HOLMES' DEPOSITION 71 . Signed by Judge Nathanael M. Cousins on 7/27/12. (nclc1, COURT STAFF) (Filed on 7/27/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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MICHAEL WEINGAND,

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Plaintiff,

Case No. 11-cv-03109 EMC (NC)
ORDER RE: LOCATION OF SCOTT
HOLMES’ DEPOSITION

v.
Re: Dkt. No. 71
HARLAND FINANCIAL SOLUTIONS,
INC.,
Defendant.

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The parties filed a joint letter in which Harland requests that the deposition of Harland

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employee Scott Holmes take place in Ohio, the place of his residence and employment, or by

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telephone or videoconference. Harland argues that because Holmes is not an officer, director, or

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a managing agent of Harland, Holmes must be subpoenaed for deposition under Federal Rule of

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Civil Procedure 45 at a location within 100 miles of his residence. Weingand opposes the

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request, arguing that he may set the place for Holmes’ deposition because Holmes is a managing

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agent of Harland. Weingand wants to take Holmes’ deposition in San Francisco.

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The place of a deposition is governed by Federal Rules of Civil Procedure 45(b)(2) and

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26(c)(1)(B). If the deponent is party to the action, the examining party may set the place for the

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deposition wherever he or she wishes subject to the power of the court to grant a protective order
Case No. 11-cv-03109 EMC (NC)
ORDER RE: HOLMES’ DEPOSITION

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under Rule 26(c)(1)(B) designating a different place. This is because a subpoena compelling the

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deponent’s attendance at the deposition is not required when the deponent is a party.

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If the deponent is not a party and does not consent to attend the deposition, the examining

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party may not set the place of the deposition “more than 100 miles from where that person

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resides, is employed, or regularly transacts business in person.” FED. R. CIV. P. 45(c)(3)(A)(ii).

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This is because a nonparty deponent’s attendance at a deposition must be compelled by subpoena

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under Rule 45, and any subpoena that requires a person subject to it to travel more than 100 miles

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from the place of his residence or employment, or the place where he normally conducts business,

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must be quashed or modified. Id.

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Here, the question presented is whether Weingand may depose Holmes in San Francisco

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even though Holmes resides in Ohio. The resolution turns on whether or not Holmes is a party to

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this action. The definition of “party” includes a party’s officers, directors, and managing agents.

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See 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §

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2107 (3d ed. Supp. 2012) (“Though Rule 30 does not say so expressly, a subpoena is not

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necessary if the person to be examined is a party or an officer, director, or managing agent of a

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party.”). Weingand states conclusorily that Holmes has the authority to set attendance, discipline,

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and other policies for Harland employees and therefore is a managing agent of Harland. Harland

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argues that Holmes is not a managing agent because he has “limited managerial responsibilities”

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over six Harland employees and does not set company policies or speak for Harland as a

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corporation.

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The court finds that because Weingand has not shown that Holmes has authority to act on

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behalf of Harland or to answer for Harland, Holmes is not a party to this action within the

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meaning of Rule 30. Accordingly, Holmes must be subpoenaed for deposition under Federal

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Rule of Civil Procedure 45 at a location within 100 miles of his residence. Alternatively, his

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deposition may be conducted via telephone or videoconference.

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IT IS SO ORDERED.

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Date: July 27, 2012

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Case No. 11-cv-03109 EMC (NC)
ORDER RE: HOLMES’ DEPOSITION

_____________________
Nathanael M. Cousins
United States Magistrate Judge
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