United States District Court, D. Connecticut
THE STANLEY WORKS ISRAEL LTD. f/k/a ZAG INDUSTRIES, LTD., Plaintiff,
500 GROUP, INC. and PAOLO TIRAMANI, Defendants.
RULING ON MOTION TO COMPEL DEPOSITIONS OF PLAINTIFF
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Stanley Works Israel Ltd., f/k/a ZAG Industries, Ltd.
("Plaintiff" or "Stanley"), an Israeli
limited liability company, brings this diversity action
against Defendants 500 Group, Inc., a New York corporation,
and Paolo Tiramani, a citizen of Nevada (collectively,
"Defendants"). Plaintiff and Defendant 500 Group
were parties to certain product license agreements that
related generally to patent rights owned by 500 Group.
Plaintiff's claims against Defendants arise from a
dispute over monies paid pursuant to a settlement agreement
between the parties.
before the Court is a discovery dispute relating to
Defendants' efforts to obtain deposition testimony from
three of Plaintiff's employees: Efrat Fixler
("Fixler"), Klara Tunkel ("Tunkel"), and
Tail Waysbort ("Waysbort"). All three proposed
deponents reside in Israel. Defendants seek an order
compelling the deposition of these employees in Connecticut,
the forum where Plaintiff initiated this action. Plaintiff
argues that Defendants' request should be denied because
the proposed deponents are not "officers, directors or
managing agents" of the Plaintiff and therefore not
subject to deposition by notice, and not subject to
deposition outside the 100-mile radius of their residence
pursuant to Fed.R.Civ.P. 45(c)(1). See Doc. 47.
Plaintiff has offered to produce these witnesses without
requiring Defendants to issue a subpoena provided that the
depositions occur by videoconference or in Israel, where each
of the witnesses is located. Id. Defendants have
rejected this offer, maintaining that the depositions must
occur in Connecticut or, alternatively, that Plaintiff must
bear all of defense counsel's costs associated with
conducting the depositions in Israel. Id. at 2.
initiated this action against the Defendants seeking to
recover money damages related to a payment by Plaintiff to
Defendant 500 Group pursuant to a written settlement
agreement (the "Settlement Agreement").
Specifically, Plaintiff alleges that the parties agreed that
Plaintiff would withhold $600, 000 from the total settlement
payment of $10 million for payment to the Israeli tax
authority. See Doc. 24 ¶¶ 15, 21. However,
Plaintiff mistakenly failed to deduct $600, 000 from the
total settlement payment as the agreed-upon tax withholdings.
Id. ¶¶ 24, 25. Defendants have allegedly
refused requests to return the $600, 000 alleged overpayment.
Id. ¶¶ 26, 32.
October 12, 2018, Defendants served notices of deposition on
Plaintiff seeking the depositions of, inter alia,
Fixler, Tunkel, and Waysbort to take place in Hartford,
Connecticut in December 2018. See Doc. 46
("Mot. to Compel"), Exs. C, D, and E. Since that
date, the parties have corresponded extensively regarding the
terms of the proposed Stanley deponents' depositions,
see Id. at 2-5, but have been unable to reach an
agreement as to the location of the depositions and who
should bear the costs.
parties' dispute turns, in large measure, on whether the
Stanley employees are "officers, directors, or managing
agents" of Stanley. Under Rule 30(b)(1) of the Federal
Rules of Civil Procedure, an officer, director, or managing
agent of a corporate party may be compelled to give testimony
pursuant to a notice of deposition. A notice of deposition
“must state the time and place of the
deposition.” Fed.R.Civ.P. 30(b)(1) (emphasis added).
Thus, in the first instance, the party noticing the
deposition is entitled to designate the place of the
deposition. A corporate employee or agent who does not
qualify as an officer, director, or managing agent, on the
other hand, is not subject to deposition by notice. See,
e.g., Sugarhill Records Ltd. v. Motown Record
Corp., 105 F.R.D. 166, 169 (S.D.N.Y.1985); Schindler
Elevator Corp. v. Otis Elevator Co., No. 06
CIV.5377CMTHK, 2007 WL 1771509, at *2 (S.D.N.Y. June 18,
2007). Such an employee, like any other non-party witness,
must be subpoenaed pursuant to Rule 45 of the Federal Rules
of Civil Procedure - including the limitation that the
witness may only be deposed "within 100 miles of where
the person resides, is employed, or regularly transacts
business in person." Fed.R.Civ.P. 45(c)(1)(A). Thus,
because the proposed deponents reside and work in Israel, the
Defendants may depose them in Connecticut only if they
qualify as managing agents of Plaintiff.
determine whether an employee qualifies as a "managing
agent" subject to deposition by notice, courts in this
district generally consider five factors:
1) whether the individual is invested with general powers
allowing him to exercise judgment and discretion in corporate
2) whether the individual can be relied upon to give
testimony, at his employer's request, in response to the
demands of the examining party;
3) whether any person or persons are employed by the
corporate employer in positions of higher authority than the
individual designated in the area regarding which the
information is sought by the examination;
4) the general responsibilities of the individual respecting
the matters involved in ...