DHL Express (USA), Inc. v. Express Save Indus.

DHL Express (USA), Inc. v. Express Save Indus.

Opinion

ORDER

THIS CAUSE is before the Court on Plaintiff DHL Express (USA), Inc.'s Motion to Compel Appearance of Defendant Express Save Industries, Inc. at Deposition (DE 48) and Defendant ESI's Motion for a Protective  [*2] Order (DE 49) and the Court being sufficiently advised, it is hereby ORDERED that Plaintiff's Motion to Compel is GRANTED and Defendant's Motion for a Protective Order is DENIED for the reasons set forth below.

On August 27, 2009, Plaintiff DHL Express (USA), Inc. ("DHL") took the deposition of John Abdo, in his individual capacity; the deposition lasted for seven hours. ¹ Abdo is the sole owner, president, and manager of the closely-held company, Defendant Express Save Industries Inc. ("ESI"). A week later, DHL noticed the deposition of ESI's corporate representative, pursuant to Federal Rule of Civil Procedure 30(b)(6). ESI, however, refused to produce a corporate representative for deposition. According to ESI, the sole witness it can designate for a 30(b)(6) deposition is Abdo, and it need not produce a corporate representative because DHL has already deposed Abdo for the allotted seven-hour period. ²

DHL then filed its instant motion to compel ESI to designate and produce a corporate representative for deposition as required by Rule 30(b)(6). And ESI filed its instant motion for a protective order pursuant to Federal Rule of Civil Procedure 26; ³ it seeks to preclude Abdo from testifying at a second deposition.

The parties cross-motions raise the issue of whether a party may depose the opposing party's Rule 30(b)(6) corporate representative when it has already deposed the designated representative in his individual capacity (for the full seven hours permitted). One court in this District has recently addressed this precise issue. In Provide Commerce, Inc. v. Preferred Commerce, Inc., No. 07-80185 Civ, 2008 U.S. Dist. LEXIS 9563, 2008 WL 360588, at *3 (S.D. Fla. Feb. 8, 2008) (Ryskamp, J.), the plaintiff had twice deposed the defendant corporation's president in his individual capacity; it then sought to depose the corporation's 30(b)(6) representative. The defendant corporation designated its president as its representative, but refused to produce him for deposition.  [*5] It then moved for a protective order on the following grounds: its president had already been deposed and, therefore, his testimony would be repetitive; his prior depositions could serve as his 30(b)(6) testimony; and the cost of attending a second deposition would be burdensome. According to the defendant, its president had essentially already given a Rule 30(b)(6) deposition as he had testified about the same subject matters identified in the plaintiff's 30(b)(6) notice. After explaining the differences between an individual's deposition under Rule 30(b)(1) and a corporate representative's deposition under Rule 30(b)(6), ⁴ the Preferred Court stated:

Although [the corporate president's] testimony may be similar under the law, a corporate entity is distinct from the individuals who control or manage the corporation. Although the limitations on multiple depositions of the same person apply to Rule 30(b)(6) motions, this Court did not find any case law that barred a second deposition of an individual who was first deposed in his individual capacity and then called to testify a second time on behalf of the corporation. [The president] has only testified as an individual and not on behalf  [*6] of the corporation.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.