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Geomc Co., Ltd. v. Calmare Therapeutics, Inc.

United States District Court, D. Connecticut

May 25, 2017

GEOMC CO., LTD., Plaintiff,
v.
CALMARE THERAPEUTICS, INCORPORATED, Defendant.

          RULING ON MOTION TO COMPEL

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         On April 28, 2017, the Court held a post-discovery telephonic status conference with the parties in this case, GEOMC Co., Ltd. (“GEOMC” or “Plaintiff”) and Calmare Therapeutics, Incorporated (“CTI” or “Defendant”). In advance of this conference, the parties filed submissions in connection with a disagreement regarding whether GEOMC should be required to produce its Chief Executive Officer (“CEO”), Young H. Lim, for a deposition. On May 12, 2017, CTI filed a motion to compel Ms. Lim's deposition, and GEOMC filed its opposition on May 19, 2017. For the reasons outlined below, CTI's motion to compel is GRANTED IN PART AND DENIED IN PART, and CTI's motion for sanctions is DENIED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         According to the filings submitted by the parties, CTI initially noticed both Ms. Lim, GEOMC's CEO, and Seung B. Oh, GEOMC's Executive Vice President, as corporate designees for GEOMC under Rule 30(b)(6) of the Federal Rules of Civil Procedure. Lim 30(b)(6) Not., Def. Ex. A, ECF No. 164-1; Oh 30(b)(6) Not., Def. Ex. G, ECF No. 164-7. Both 30(b)(6) deposition notices were dated November 20, 2015. GEOMC claims that it objected to Ms. Lim's 30(b)(6) deposition as “duplicative and burdensome” and offered to “consider making Ms. Lim available to address additional topics” in the event that Mr. Oh's 30(b)(6) deposition was insufficient. Pl. Mem. in Opp. at 2, ECF No. 166.

         In a separate deposition notice dated March 23, 2017, CTI sought to depose Ms. Lim individually, not as a Rule 30(b)(6) corporate designee. Lim Dep. Not., Def. Ex. B, ECF No. 164-2. Although the Court's Scheduling Order specified that discovery should close by April 14, 2017, see Scheduling Order, ECF No. 151, CTI arranged for the deposition of Ms. Lim to take place on April 26, 2017. On April 24, 2017, GEOMC informed CTI that it would not produce Ms. Lim. CTI Notice, ECF No. 154.

         II. STANDARD OF REVIEW

         Under Rule 26 of the Federal Rules of Civil Procedure, “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative….” Fed.R.Civ.P. 26(b)(2)(C). Furthermore, under Rule 26(c)(1), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including… (A) forbidding the disclosure or discovery; [or] (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery….” Fed.R.Civ.P. 26(c)(1). “[R]edundant depositions should be avoided, and senior executives should be deposed only if they possess unique personal knowledge related to the relevant issues in the case.” Diesel Props S.r.L. v. Greystone Bus. Credit II LLC, No. 07 CIV. 9580 (HB), 2008 WL 5099957, at *1 (S.D.N.Y. Dec. 3, 2008) (citing Consol. Rail Corp. v. Primary Indus. Corp., 1993 WL 364471, at *1 (S.D.N.Y. Sep. 10, 1993)).

         III. DISCUSSION

         CTI seeks an order compelling the in-person deposition of Ms. Lim in the United States, as well as the imposition of sanctions on GEOMC for their failure to produce Ms. Lim. CTI insists that Ms. Lim, as CEO of GEOMC, has relevant information that has not already been provided by the Rule 30(b)(6) deposition of Mr. Oh. CTI further argues that GEOMC has waived its right to object to the deposition of Ms. Lim because it failed to file a motion for protective order after receiving notice of Ms. Lim's deposition. GEOMC, on the other hand, objects to the deposition of Ms. Lim, arguing that Ms. Lim's testimony is duplicative of Mr. Oh's testimony.

         a. Duplicative Testimony

         CTI initially sought to depose Ms. Lim as an additional 30(b)(6) witness, see Def. Ex. A, but later adjusted the deposition notice to depose her as an individual employee of the company, see Def. Ex. B. “‘The testimony provided by a corporate representative at a [Rule] 30(b)(6) deposition binds the corporation. This is quite unlike a deposition of an employee of the corporation, which is little more than that individual employee's view of the case and is not binding on the corporation.'” Cipriani v. Dick's Sporting Goods, Inc., No. 3:12-CV-910 (JBA), 2012 WL 5869818, at *2 (D. Conn. Nov. 19, 2012) (quoting New Jersey v. Sprint Corp., No. 03- 2071-JWL, 2010 WL 610671, at *1 (D. Kan. Feb. 19, 2010)).

         GEOMC argues that CTI has already obtained all of the necessary information through its Rule 30(b)(6) deposition of Mr. Oh, claiming that CTI cannot identify any relevant areas about which Ms. Lim has unique personal knowledge. However, CTI points out that, unlike the deposition of Mr. Oh, the deposition of Ms. Lim would not be a Rule 30(b)(6) deposition, thus the deposition of Ms. Lim could result in additional relevant information not discussed with Mr. Oh. See Id. Accordingly, the Court is not convinced that Ms. Lim's testimony would be entirely duplicative of Mr. Oh's testimony, and Ms. Lim's deposition should not be precluded on this basis.

         CTI's motion to compel is granted in part. GEOMC is ordered to work with CTI to arrange the deposition of Ms. Lim within twenty (20) days of the date of this Order.

         b. ...


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