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Copan Italia S.P.A. v. Puritan Medical Products Co. LLC

United States District Court, D. Maine

November 20, 2019

COPAN ITALIA S.P.A., et al., Plaintiffs
v.
PURITAN MEDICAL PRODUCTS COMPANY LLC, et al., Defendants

          MEMORANDUM DECISION AND ORDER ON PARTIES' DISCOVERY DISPUTE

          John H. Rich III United States Magistrate Judge

         The parties to this patent infringement and unfair competition case dispute whether two of the plaintiffs' deponents, Santina Castriciano and Alberta Roversi, are “party witnesses” pursuant to the parties' joint discovery stipulation such that they must be deposed in the United States. See Joint Discovery Stipulation (“Joint Stipulation”) (ECF No. 48) ¶ 15(a). With the benefit of oral argument on November 7, 2019, and subsequently-filed letter briefs, and treating this dispute as a motion by the defendants/counterclaimants (hereinafter, “defendants”) to compel the taking of the Castriciano and Roversi depositions in the United States, I deny the motion. I conclude that the phrase “party witnesses, ” as applied to Ms. Castriciano and Ms. Roversi, is most sensibly read to refer to officers, directors, and managing agents of a party, and that the defendants have not shown that either deponent fits that description.[1]

         I. Background

         Plaintiffs Copan Italia S.p.A. and Copan Diagnostics, Inc., are located in Brescia, Italy, and Murrieta, California, respectively. Copan Italia S.p.A. and Copan Diagnostics, Inc.'s First Amended Complaint for Unfair Competition and Patent Infringement (ECF No. 84) ¶¶ 1-2. The defendants, Puritan Medical Products Company LLC, its affiliate Puritan Diagnostics LLC, Hardwood Products Company LP, and Hardwood Products Company LLC, are Maine limited liability entities with offices in Guilford, Maine. Answer to First Amended Complaint, Separate Defenses, and Counterclaims (ECF No. 96) at 1 & ¶¶ 5-8.

         The parties stipulated that “[d]epositions of party witnesses will take place at an agreed-upon location in the United States that is convenient for the witness, and without the need to use Hague Convention procedures.” Joint Stipulation ¶ 15(a). The defendants served notices of the depositions of Ms. Castriciano and Ms. Roversi pursuant to Federal Rule of Civil Procedure 30(b)(1), contending that, because they are “party witnesses, ” they must be deposed in the United States pursuant to paragraph 15(a) of the Joint Stipulation. Transcript at 4-5, 24. The plaintiffs objected, and, on October 31, 2019, both sides filed requests for a hearing on that discovery dispute, see ECF Nos. 143, 144. At my direction, after hearing oral argument on November 7, 2019, both sides filed letter briefs on November 12, 2019, Transcript at 31; ECF No. 148; Plt. Br.; Letter dated November 12, 2019, from Peter J. Brann to The Honorable John H. Rich III (“Dft. Br.”) (ECF No. 150).[2]

         II. Applicable Legal Standard

         The examining party bears the “modest” burden of establishing the status of a witness. Rijhwani v. Wells Fargo Home Mortg., Inc., No. C 13-05881 LB, 2015 WL 848554, at *3 (N.D. Cal. Jan. 28, 2015) (citation and internal quotation marks omitted); Report of Hearing and Order re: Discovery Dispute, Fairchild Semiconductor Corp. v. Third Dimension (3D) Semiconductor, Inc., No. 2:08-cv-00158-DBH, slip op. at 2 (D. Me. Aug. 25, 2008). Any doubt is to be “resolved in favor of the examining party.” JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 220 F.R.D. 235, 237 (S.D.N.Y. Mar. 25, 2004).

         III. Discussion

         As a threshold matter, the parties offer dueling interpretations of the phrase “party witnesses” in paragraph 15(a) of the Joint Stipulation. The plaintiffs contend that the phrase “has a well-defined meaning and legal significance” pursuant to Federal Rules of Civil Procedure 30 and 32, referring to “a witness whose testimony can bind the corporate party and to no one else.” Plt. Brf. at 2; see also, e.g., Fed.R.Civ.P. 32(a)(3) (“An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).”); U.S. v. Afram Lines (USA), Ltd., 159 F.R.D 408, 413 (S.D.N.Y. Dec. 9, 1994) (“Only a party to litigation may be compelled to give testimony pursuant to a notice of deposition. If the party is a corporation, it may be noticed pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, in which case it must designate an officer, director, or managing agent to testify on its behalf. Alternatively, the party seeking the deposition may identify a specific officer, director, or managing agent to be deposed and notice that person under Rule 30(b)(1). The testimony of such a person will be binding on the party.”); GTE Prods. Corp. v. Gee, 115 F.R.D. 67, 69 (D. Mass. 1987) (“The depositions of non-managing agents and servants of a corporate party must be noticed as individuals[.]”).

         The plaintiffs assert that because neither Ms. Castriciano nor Ms. Roversi is an officer, director, or managing agent, neither qualifies as a “party witness” pursuant to paragraph 15(a) of the Joint Stipulation. See Plt. Br. at 2.

         The defendants protest that this reading renders paragraph 15(a) “nugatory” because it provides nothing more than is already required and exempts something that is already exempt, namely, the need to use Hague Convention procedures. Dft. Brf. at 3-4 (citing Fairchild for the proposition that Rule 30(b)(1) witnesses who qualify as officers, directors, and managing agents ordinarily are produced without a subpoena or need of compliance with the Hague Convention).

         They assert that “the only way to breathe life into paragraph 15(a) of the Joint Discovery Stipulation is to treat ‘party witnesses' as including anyone who is under the control of a party, and not just witnesses speaking on behalf of the party, i.e., the ‘party's witnesses.'” Id. at 3 (emphasis in original). Pursuant to their interpretation, even if the witnesses were “mere Copan employees, which they definitely are not, the Joint Discovery Stipulation contemplated that such ‘party witnesses' would be deposed in the United States.” Id.

         In the alternative, the defendants argue that even if the plaintiffs' interpretation of the phrase “party witnesses” is correct, Ms. Castriciano and Ms. Roversi “are (at least) Copan's ‘managing agents'” pursuant to the test applied in Fairchild, and, hence, must be deposed in the United States. Id. at 4-5. See also id. at 1 (“Even if the Joint Discovery Stipulation was written in disappearing ink, applying the standards articulated by this Court in Fairchild . . . leads to the same result.”).

         The phrase “party witnesses” cannot, on its face, reasonably be construed to mean any witness in a corporate plaintiff's control, including a mere employee. Instead, the phrase connotes witnesses who either are parties or can speak for parties, while the phrase “a party's witnesses” sweeps more broadly, encompassing witnesses, including mere employees, who have been tapped to testify for a party. Interpreting the phrase “party witnesses” in paragraph 15(a) of the Joint Stipulation through the lens of Rules 30 and 32 does not render it a nullity. “While it is appropriate in some circumstances to override these rules, for example, on the basis of undue burden, ” Fairchild, slip op. at 4, in this case, the parties have stipulated that if a deponent qualifies as a party witness, his or her deposition ...


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