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McAnneny v. Smith & Nephew, Inc.

United States District Court, D. Connecticut

December 12, 2017

EDWARD MCANNENY
v.
SMITH & NEPHEW, INC.

          ORDER

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Defendant Smith & Nephew, Inc. (“defendant”) has filed a motion seeking a protective order, regarding the noticed deposition of Dr. Andy Weymann. [Doc. #58]. Plaintiff Edward McAnneny (“plaintiff”) has filed an objection to defendant's motion, and defendant has filed a reply. [Docs. #61, #63]. For the reasons set forth below, the Court DENIES defendant's Motion for Protective Order.

         I. Background

         Plaintiff noticed the deposition of Dr. Andy Weymann. Dr. Weymann is alleged by defendant to be a citizen of Switzerland, see Doc. #58 at 1, and plaintiff does not dispute this assertion. Plaintiff asserts that he may depose Dr. Weymann by notice, rather than by subpoena and through the Hague Convention, because Dr. Weymann is a “managing agent” of defendant. See Doc. #61 at 9-13. Defendant contends that Dr. Weymann is employed by a separate entity, Smith & Nephew Orthopedics, AG, and is not a managing agent of, or controlled by, defendant. See Doc. #58 at 2.

         II. Legal Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears the burden of showing why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009); see also Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“Where the discovery is relevant, the burden is upon the party seeking ... a protective order to show good cause.”) (quotation marks and internal citations omitted).

         Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, “[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 ... forbidding the disclosure or discovery[.]” Fed.R.Civ.P. 26(c)(1)(A). “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

         Rule 30(b)(1) provides that a deposition may be taken by a party upon the provision of “reasonable written notice to every other party.” Fed.R.Civ.P. 30(b)(1). “Pursuant to Rule 30(b)(1) of the Federal Rules of Civil Procedure, a specific officer, director, or managing agent of a corporate party may be compelled to testify pursuant to a notice of deposition.” JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 220 F.R.D. 235, 237 (S.D.N.Y. 2004). If an individual is not an officer, director, or managing agent of a corporate party, the deposition may not be compelled by mere issuance of a notice; rather, the witness must be subpoenaed and the Hague Convention may apply if the witness is overseas. See, e.g., United States v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994).

         III. Discussion

         Defendant moves for a protective order in response to the Notice of Deposition issued by plaintiff for Dr. Weymann. Defendant contends that Dr. Weymann is not a “managing agent” of defendant corporation and thus is not subject to deposition by mere issuance of a Notice of Deposition. Plaintiff contends that Dr. Weymann qualifies as a “managing agent” and that the equities weigh in favor of permitting the deposition to proceed.

         The test for determining whether a person qualifies as a “managing agent” of a corporate party is a flexible one, and, like most discovery rules, is designed to account for practical and equitable considerations. “As in all matters appertaining to discovery, it is the ends of justice that are to be served.” Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1453 (D.C. Cir. 1986).

         Plaintiff focuses his argument that Dr. Weymann is a “managing agent” for these purposes on two pieces of information. First, plaintiff points out that Dr. Weymann signed the “Advisory Notice” directed to medical professionals, stating that “Smith & Nephew has determined to inform customers of a potential decline in clinical performance in patients implanted with” the modular femoral head (“MFH”) at issue in this litigation. Doc. #61-1 at 2. Dr. Weymann signed this Notice as “Chief Medical ...


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