Firestone Financial Corp v. AB Marketing

Filing 43

ORDER denying 31 Motion to set deposition but without prejudice to depose the same witnesses in Massachusetts within 30 days, or alternatively, to depose the same witnesses either by telephone or video. Signed by Magistrate Judge Stephanie K. Bowman on 7/22/13. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

FIRESTONE FINANCIAL CORP.,

Case No. 1:12-cv-446

Plaintiff,

Weber, J.
Bowman, M.J.

v.
AB MARKETING, LLC d/b/a The
Sphere of Cincinnati, et al.,
Defendants.

MEMORANDUM ORDER
I. Background
The parties have completed written discovery in this case.

Plaintiff has

completed oral discovery, but Defendants have not taken any depositions to date.
Although the deadline for completion of discovery has now passed, prior to the
expiration of that deadline Defendant Darroll W. Alexander filed a motion seeking to
compel Plaintiff to produce two of its employees for deposition in this district. Plaintiff
filed a response in opposition, to which Defendant filed a reply. The Court deferred
ruling on the motion until following the completion of a court-facilitated settlement
conference, which, regrettably, was not successful. (Doc. 42).
II. Analysis
Defendant’s pending motion seeks an order compelling Plaintiff to produce two of
its employees for deposition, ostensibly pursuant to Federal Rule of Civil Procedure
“30(b)(5).” Although that rule clearly is not applicable, it appears that Defendant actually
seeks to depose the two witnesses under either Rule 30(b)(1) as a “party” or under Rule
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30(b)(6) as “officers, directors, or managing agents.” As Plaintiff notes, a motion to
compel discovery, including attendance at a deposition, ordinarily must be filed pursuant
to Rule 37.

In addition, such a motion should not be filed in this district absent

exhaustion of good faith attempts to resolve the discovery dispute without Court
intervention. See Local Rules 37.1 and 37.2.
Defendant’s motion to compel the attendance of the two witnesses for a
deposition to be conducted in Ohio will be denied on multiple grounds. First, prior to
compelling a deposition, Rule 30(b)(6) anticipates the issuance of notice of deposition
or subpoena – neither of which occurred in this case.

A motion to compel the

deposition of a party also ordinarily is not filed prior to a formal notice of deposition.
Here, defense counsel’s paralegal merely sent an email inquiring whether she could set
up dates for the witnesses’ depositions in Ohio – a request that was denied. Plaintiff
alternatively offered the two witnesses for deposition at their place of employment and
Plaintiff’s principal place of business in Massachusetts, or via telephone (or presumably
video) if Defendant wished to avoid travel expenses. Defendant did not respond to the
Plaintiff’s alternative offer before filing his motion, and has failed to explain even in his
reply memorandum why Plainitiff’s alternative proposal is inadequate. See Bricker v. R
& A Pizza, Inc., 2011 WL 3941982 at *3 (S.D. Ohio, Sept. 6, 2011)(holding that “[i]n the
context of compelling a party to appear for a deposition, such an order may be issued
only if a proper deposition notice is served.”).
Second, Rule 30 generally authorizes only the deposition of a corporate party’s
officers, directors, or managing agents. Defendant alleges that the two employees were
intimately involved in processing the loan that is at issue in this lawsuit, and on that

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basis should be deemed to be “managing agents” of the corporate Plaintiff. However,
Plaintiff has offered evidence that the two witnesses are lower level employees, neither
of whom Plaintiff intends to call as its witness. (See Doc. 36-1).
It is Defendant’s burden to show that the witnesses are, in fact, managing
agents. E.E.O.C. v. Honda of America Mfg., Inc., 2007 WL 682088 at *2 (S.D. Ohio,
Feb. 28, 2007). Moreover, “[t]he determination of whether a deponent is an officer,
director, or managing agent of a corporate party is made at the time the deposition is
noticed, rather than at the time the events in question occurred.”

Id.

If Plaintiff

intended to call either witness, a different result likely would be obtained. See Novovic
v. Greyhound Lines, Inc., 2012 WL 252124 (S.D. Ohio, Jan. 26, 2012)(noting that
employees who have been identified on Plaintiffs’ witness list who had managerial
responsibilities qualified as “managing agents”). However, notwithstanding Defendant’s
plea to liberally construe the two employees as “managing agents” subject to being
hailed across the country for deposition by Defendant at Plaintiff’s expense, the Court is
not persuaded. Defendant admits that the employees are not officers or directors, and
has offered no evidence to contradict Plaintiff’s representation that the two employees
did not have any managerial responsibility. The burden to show that employees are
managing agents has been described as “modest,” but it is not non-existent.

As low

level employee witnesses ostensibly involved in gathering information relating to the
loan at issue, the witnesses may (or may not) prove to have relevant information that is
favorable to the defense, but Defendant cannot shift the burden of travel expenses
merely by creatively arguing that the witnesses are managing agents. 1

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Defendant argues that the witnesses are Plaintiff’s “primary factual witnesses,” and that if they do not
testify, Plaintiff “likely loses on the basis that their hearsay statements will not be permitted.” (Doc. 38 at
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As a final basis for denying Defendant’s motion, Rule 34 provides that a court
must quash or modify any subpoena that requires a person who is neither a party nor
an officer to travel more than 100 miles from where that party resides, is employed, or
regularly transacts business in person. See Rule 45(c)(3)(A)(ii).
III. Conclusion
Accordingly, IT IS ORDERED:
Defendant’s motion to set deposition (Doc. 31) is DENIED but without prejudice
to Defendant’s right to depose the same witnesses in Massachusetts within thirty (30)
days, or alternatively, to depose the same witnesses either by telephone or video.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

3-4). Any such risk remains the Plaintiff’s to take; Defendant may not force Plaintiff to name as testifying
witnesses employees that Plaintiff does not otherwise intend to call.
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