United States District Court, D. Connecticut
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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
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.
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
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
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).
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.
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).
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 ...