Foreign Corporation Depositions in Hawaii (Part 1)

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With the rise of foreign corporations, the location of the deposition of a witness from a foreign corporation occasionally becomes an issue. The general local rule in Hawaii is that the deposition is conducted where the witness is located. Foreign corporations will almost always oppose travelling to Hawaii for deposition testing. However, Hawaii attorneys should not always concede this issue. There is a substantial body of law, concerning the site of depositions of foreign corporations. With respect to this issue, the Federal Rules of Civil Procedure Rule 30 (b)(6) provides as follows:

A party may in the party’s notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

FRCP 30(b)(6).

In turn, “when an employee named in a deposition notice is a director, officer, or managing agent of [a corporate party], such employee will be regarded as a representative of the corporation. Thus, such deposition can be used against that corporate party at trial”.

The general rule is that “a party may unilaterally choose the place for deposing an opposing party” subject to the any FRCP 26(c)(2) protective order providing otherwise. New Medium Technologies LLC. v Barco N.V. 242 F.R.D. 460, 465-66 (N.D. Ill., 2007). However, in instances where a party seeking to be deposed is a corporation defendant under FRCP 30(b)(6), the presumption is that the deposition should be taken at the corporation’s principal place of business. Id.

The modern trend regarding this “presumption” indicates that it is not a presumption at all but rather a kind of rule that “facilitated determination when other relevant factors do not favor one side over the other.” Id citing Bank of New York v Meridian BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y., 1997). Although “Courts have treated the ‘presumption’ with varying degrees of deference”, “all are agreed that it may be overcome by a showing that ‘peculiar’ circumstances favor depositions at a different location.” Id. Factors that the courts examine to overcome this presumption include “cost[s], convenience, and litigation efficiency [which] favor holding the deposition outside of the witnesses’ district” (ie. the corporation defendant’s principal place of business.) Id.