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Less v. Taber Instrument Corp.

United States District Court · Civil Procedure

Civil ProcedureDiscoveryDepositionsSubpoenasProtective OrdersRule 30(a)Rule 45Rule 26(c)

Facts

Teledyne, Inc. was a non-party foreign corporation doing business in the judicial district and was served with a subpoena directing it to appear for examination through Singleton, its Chairman and Chief Executive Officer, and Kaufman, its Assistant Secretary. Kaufman was no longer employed by Teledyne, and plaintiff conceded his presence could not be compelled. Singleton was Chairman of Teledyne's Board of Directors and worked from Teledyne's Los Angeles headquarters, but he was not personally served with a subpoena. Teledyne argued that, unlike a party corporation, a non-party corporation should not be required to produce a director for examination.

Issue

May a non-party foreign corporation doing business in the district be required to produce a named director for deposition even though the director was not personally served with a subpoena? If so, should the court compel the deposition here, and on what terms to protect the non-party witness from undue burden?

Rule

Under Rules 30(a) and 45, any person, including a director of a non-party corporation, may be examined by deposition, and a foreign corporation doing business in the district is subject to process in that district. The Rules do not create an operative distinction between party and non-party corporations for purposes of whether a director may be required to appear, but under Rule 26(c) the court has broad discretion to issue protective orders and should protect non-party witnesses from undue burden and expense, ordinarily by requiring deposition at the corporation's principal place of business rather than requiring long-distance travel for the parties' convenience.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a products-liability suit pending in federal court in Chicago, the plaintiff serves a subpoena on North Harbor Components Ltd., a Delaware corporation that is not a party but concedes it regularly does business in the Northern District of Illinois. The subpoena commands the corporation to appear through its current board chair, Elena Cruz, for deposition; Cruz works from the corporation's headquarters in Phoenix and is not personally served.

How should the court rule on the corporation's argument that Cruz cannot be compelled to testify because she is a director of a non-party corporation and was never personally served?

Explanation. The majority held that a foreign corporation doing business in the district is subject to process there, including subpoena, and that Rules 30(a) and 45 do not establish an operative distinction between party and non-party corporations on whether a named director may be examined. Personal service on the director was not required in that setting. (Derived from Less v. Taber Instrument Corp. (n.d.).)