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denying motion to quash nonparty subpoena on the merits
Summary of this case from Stanziale v. Pepper Hamilton LLPOpinion
1:02CV00054 (M.D.N.C.), Misc. No. M8-85
August 13, 2002
Thomas F. Bush, Lovells, Chicago, IL (Marc J. Gottridge, Joseph T. McCullough IV, and Nazanin Lankarani, Lovells, New York, NY, of counsel), for Non-Party Movants.
Jack B. Gordon (Rita M. Odin, of counsel), Fried, Frank, Harris, Shriver Jacobson, New York. NY, for Respondents.
OPINION AND ORDER
Non-party movants Takao Shida, Takao Sasaki, and Shuya Kojima seek (1) an order pursuant to Fed.R.Civ.P. 45(c)(3)(A)(ii) (iv) quashing subpoenas issued in this judicial district and served on July 16, 2002, requiring their personal appearance for depositions in New York on August 15 and 16, 2002, and (2) an order pursuant to Fed.R.Civ.P. 45(c)(1) imposing sanctions upon respondents Fortress Re, Inc., Maurice D. Sabbah, Zmira Sabbah, Leeor B. Sabbah, Kenneth H. Kornfeld, and their counsel, Fried, Frank, Harris, Shriver Jacobson, LLP, for breaching their duty to avoid imposing undue burden or expense upon the subpoena recipients. The subpoenas have been issued in connection with an action pending before the U.S. District Court for the Middle District of North Carolina, Nissan Fire Marine Insurance Co., Ltd. v. Fortress Re, Inc., No. 1:02-CV-00054 (M.D.N.C.).
Based on representations made by counsel for the movants at oral argument that Shida and Kojima have no knowledge of any facts relevant to the North Carolina action, counsel for respondents has agreed to withdraw the subpoenas served upon those two movants, leaving before the Court only the motion to quash as to the subpoena served upon Sasaki and the motion for sanctions. For the reasons that follow, the motion to quash will be granted, but the motion for sanctions will be denied.
BACKGROUND
The action pending in North Carolina concerns a dispute between plaintiff Nissan Fire and Marine Insurance Co., Ltd. ("Nissan"), a Japanese corporation, and defendants Fortress Re, Inc. ("Fortress Re"), a reinsurance underwriting manager based in North Carolina, and the individual defendants, who are all directors, officers, or shareholders of Fortress Re. (Drew Decl. ¶¶ 3-4.) Since 1972, Fortress Re has served as managing underwriting agent for a group of several Japanese insurance companies, which in recent years has included Nissan, Taisei Fire and Marine Insurance Co., Ltd. ("Taisei"), and Aioi Insurance Co., Ltd. ("Aioi"). (Drew Decl. ¶¶ 4-5.) All three of these Japanese companies are now involved in disputes with Fortress Re arising from the termination of their respective management agreements with Fortress Re. (Drew Decl. ¶¶ 8-9.) Nissan initiated the North Carolina action and an arbitration proceeding against Fortress Re and the individual defendants, alleging, inter alia, that the respondents engaged in fraud and misrepresentation when disclosing information to Nissan. Fortress Re has served Nissan with a counter-demand for arbitration and has served Aioi with a separate demand for arbitration. (Drew Decl. ¶ 9; Juceam Decl. ¶¶ 2-3.) Taisei and Aioi are not parties to the North Carolina action filed by Nissan, but respondents maintain that testimony from Aioi's officers and employees is relevant to Fortress Re's defense of the North Carolina action because a significant issue in that dispute concerns whether Nissan had knowledge of Fortress Re's practices and understood its disclosures. According to respondents, Nissan, Taisei, and Aioi received substantially identical information from the respondents and discussed that information amongst themselves, making Aioi employees a source of substantial. material evidence to their defense of the North Carolina action. (Drew Decl. ¶ 4; Juceam Decl. ¶ 4.)
Sasaki is a citizen and resident of Japan and is General Manager of Aioi's Reinsurance Department. While Aioi has a New York office, Sasaki maintains that he does not regularly work out of that office and has only come to New York for business four times within the past five years. (Sasaki Decl. ¶¶ 2, 4-5.) One of those instances, however, was a trip to New York to attend a meeting held with representatives of Fortress Re on July 16, 2002, for the purpose of discussing Aioi's own potential claims against Fortress Re and the possibility of settling their disputes. Shida and Kojima accompanied Sasaki to that meeting, which was held in New York, rather than North Carolina, at the request of the three Aioi employees and for their convenience. (Juceam Decl. ¶¶ 6-8; Sasaki Decl. ¶¶ 6-7; Kojima Decl. ¶¶ 6-7; Shida Decl. ¶¶ 6-7.) The meeting did not, however, result in any settlement of the dispute between Fortress Re and Aioi, and at the end of the meeting, counsel for Fortress Re asked counsel for the movants to accept service of subpoenas seeking their appearance for depositions in New York on August 15 and 16, 2002. While counsel for the movants vigorously objected to service of the subpoenas, the movants ultimately accepted service under protest, without agreeing that service was proper and expressly reserving their rights to challenge those subpoenas. (McCullough Decl. ¶ 9; Sasaki Decl. ¶ 9; Kojima Decl. ¶ 9; Shida Decl. ¶ 9; Juceam Decl. ¶¶ 9-10.)
By contrast, respondents maintain that Sasaki has traveled to North Carolina at least six times within the past ten months for the purpose of discussing Aioi's business with Fortress Re. (Drew Decl. ¶ 13.)
Subsequent attempts to work out an amicable resolution concerning the movants' depositions were unsuccessful. (Juceam Decl. ¶¶ 11-12.) This motion followed and was heard before this Court as a miscellaneous application on August 8, 2002.
DISCUSSION
I. Motion to Quash Subpoena
Under Rule 45(a)(2) of the Federal Rules of Civil Procedure, a subpoena for attendance at a deposition must issue from the court for the district in which the deposition is to be taken. Fed.R.Civ.P. 45(a)(2). Rule 45(b)(2) authorizes service of such a subpoena (1) "at any place within the district of the court by which it is issued," (2) at any place outside the district "that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena," or (3) "at any place within the state" if state law authorizes statewide service of a subpoena "issued by a state court of general jurisdiction sitting in the place of the deposition, hearing, trial, production, or inspection specified in the subpoena." Fed.R.Civ.P. 45(b)(2).
Service of the subpoenas in this case properly complied with both of these requirements, since the subpoenas sought the movants' appearance for depositions in New York and were personally served upon the movants within this district. While the movants protests that service upon the movants was improper because they were "ambushed" with service after being "induced" by the respondents to come all the way from Japan to New York for the express and sole purpose of engaging in settlement negotiations with Fortress Re (Movants Br. 3-4), the Court finds no basis to conclude that the movants were in any way privileged or immunized whether on account of the transient nature of their sojourn to New York or the purpose for which they made that trip — from service of process in this judicial district. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 246-47 (2d Cir. 1995) (upholding exercise of personal jurisdiction over citizen of foreign country visiting New York for purpose of addressing United Nations). The movants fully "knew, or should have known, that by" attending the meeting in New York, they were also "risking exposure to personal jurisdiction in New York." First Am. Corp. v. Price Waterhouse LLP, 154 F.3d 16, 20-21 (2d Cir. 1998) (citing Burnham v. Superior Court, 495 U.S. 604, 635 (1990)). Given that an individual may be subjected to liability by the exercise of so-called "tag" jurisdiction far from home without the Due Process Clause being violated, there is no reason why service of a subpoena under Rule 45(b)(2), "which is simply a discovery mechanism and does not subject a person to liability, requires more." In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002); see First Am. Corp., 154 F.3d at 20. As for the "ambush" argument, while the movants make much rhetorically of this claim, they in fact make no legal argument, and cite no authority, for the proposition that persons engaged in business discussions relating to the settlement of a dispute may not be served with process. Actual service of the subpoenas upon the movants, therefore, itself raises no legal question.
However, the authority to serve a subpoena under Rule 45(b)(2) also is explicitly made "subject to the provisions of Rule 45(c)(3)(A)(ii), which provides that upon a timely motion,
the court by which a subpoena was issued shall quash or modify the subpoena if it . . . requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person.
Fed.R.Civ.P. 45(c)(3)(A)(ii) (emphasis added). The purpose of the territorial limitation "is to protect [non-party] witnesses from being subjected to excessive discovery burdens in litigation in which they have little or no interest." Edelman, 295 F.3d at 178; see Price Waterhouse LLP v. First Am. Corp., 182 F.R.D. 56, 63 (S.D.N.Y. 1998). Non-party witnesses also are protected from being held in contempt for failure to obey subpoenas that purport to require them to attend depositions at places outside the territorial limits of Rule 45(c)(3)(A)(ii). Fed.R.Civ.P. 45(e).
Arguably, given Rule 45(c)(3)(A)(ii), the movants could have simply ignored the subpoenas, rather than moving to quash them, without fearing any contempt sanction from this Court on account of their noncompliance. See Fed.R.Civ.P. 45(e). Understandably and appropriately, however, they have sought to have their obligations adjudicated in advance, rather than defying the subpoenas and asserting defenses in a contempt proceeding.
It is undisputed that Sasaki, who lives and works in Japan, would be required to travel more than 100 miles from their place of residence and employment in order to be deposed in New York. It also seems perfectly clear that Sasaki does not "regularly transact business in person" in New York to the extent contemplated by Rule 45(c)(3)(A)(ii). See Regents of University of California v. Kohne, 166 F.R.D. 463, 465 (S.D.Cal. 1996) (under Fed.R.Civ.P. 45(c)(3)(A)(ii), "`regularly' does not mean ten times in seven years").
Respondents emphasize Sasaki's extensive contacts in North Carolina in connection with Aioi's business relationship with Fortress Re, noting that he made at least six trips to North Carolina within the past ten months. (Drew Decl. ¶ 13.) While those contacts may or may not support the conclusion that Sasaki "regularly transact[s] business in person" in North Carolina under Rule 45(c)(3)(A)(ii), they are simply irrelevant to whether he does so in New York.
What is not altogether clear, however, is the effect that should be given to the cross-referencing language making Rule 45(b)(2) "subject to" the provisions of Rule 45(c)(3)(A)(ii), for that language is, to say the least, somewhat ambiguous. See David B. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197, 209 (1992) ("In some situations when one consults Rule 45 for guidance about the territorial reach of a subpoena and starts to hop back and forth among [Rule 45's various subsections], the rule comes off like a Tower of Babel, an inferno with shrill voices jabbering simultaneously in a confusion of tongues."). Sasaki argues that a subpoena that transgresses the territorial limitations set forth in Rule 45(c)(3)(A)(ii) is invalid ab initio, and accordingly that the Court must quash the subpoena as beyond the authority conferred in Rule 45(b)(2) to serve it. By contrast, respondents maintain that the cross-referencing language making Rule 45(b)(2) "subject to" the provisions of Rule 45(c)(3)(A)(ii) does not automatically render a subpoena invalid if it exceeds those territorial limitations, but instead vests discretion in the district court, as provided in the latter rule, either to quash or modify the subpoena when presented with a timely motion for relief by the subpoena recipient. On respondents' reading of Rule 45(b)(2), the court still must do something when faced with the circumstances described in Rule 45(c)(3)(A)(ii) and presented with a timely motion — given the mandatory language of the rule, which states that the court "shall quash or modify" the subpoena, the court cannot simply let such a subpoena stand as issued. At the same time, quashing the subpoena is not the only option available to the court. Rather, at its discretion, the court is permitted either to quash or to modify the subpoena as the circumstances warrant. On this view, Rule 45 permits a party to serve a subpoena that cannot be enforced according to its terms, "subject to" later modification (or quashing) of the subpoena.
The parties draw our attention to only a handful of cases involving circumstances akin to those presented here. For example, in Matthias Jans Assocs., Ltd. v. Dropic, No. 01-MC-26, 2001 WL 1661473 (W.D. Mich. Apr. 9, 2001), the court concluded that the movant was entitled to relief from a subpoena issued in Western District of Michigan and served upon a resident of that district in connection with an action pending in the Northern District of Ohio, since the subpoena sought the appearance of the movant for a deposition in Cleveland, Ohio — a location outside the territorial restrictions set forth in Rule 45(c)(3)(A)(ii). Rather than quashing the subpoena altogether, however, the court ordered that the subpoena be modified to require its recipient to appear for the deposition "at a place to be agreed upon by all counsel, no greater than 100 miles" from her residence. Id. at *3. Similarly, in Comm-Tract Corp. v. Northern Telecom, Inc., 168 F.R.D. 4, 7 (D.Mass. 1996), the court modified a subpoena issued and served in Massachusetts upon a non-party witness who, by the time scheduled for his appearance at trial, was to have commenced work on a three-year expatriate assignment in Hong Kong, concluding that the "just result" was to modify the subpoena to require the witness to submit to a videotape deposition in Hong Kong. By contrast, in St. Paul Fire Marine Insurance Co. v. Royal Insurance Co., No. 91 Civ. 6151 (PNL), 1993 WL 267347, (S.D.N.Y. July 12, 1993), the court stated that "Rule 45(c)(3)(A)(ii) appears to require the quashing of a subpoena if it requires a person who is neither a party nor an officer of a party to travel to a place more than 100 miles from his or her residence or place of business to testify," and on that basis quashed the subpoena. Id. at *1 (emphasis added); cf. Price Waterhouse LLP v. First Am. Corp., 182 F.R.D. 56, 63-64 (S.D.N.Y. 1998) (concluding that the court could not modify a subpoena that sought the appearance of residents of England for a deposition in New York to provide instead that the deposition take place in London because such a modification would "create a subpoena that does not issue from "the district in which the deposition is to be taken,'" in violation of Rule 45(a)(2)).
Plausible policy arguments support both readings. It seems peculiar to permit a party to serve a subpoena that is unenforceable according to its terms. On the other hand, it is not uncommon that non-jurisdictional defects may be waived if they are not asserted, and the rule may contemplate the possibility of securing jurisdiction over a witness who is otherwise difficult to locate or serve, leaving it to later court action if sought by the witness — to achieve a fair result. Given that the rule expressly authorizes the Court to quash or modify the subpoena, it seems equally odd to conclude that the sensible results ordered by the courts in Matthias Jans and Comm-Tract were simply unauthorized by law.
Nevertheless, the Court need not resolve in this case whether Rule 45(b)(2) requires that a subpoena in violation of Rule 45(c)(3)(A)(ii) be quashed or confers discretion upon the court to modify such a subpoena. Assuming, without deciding, that Rule 45(b)(2) permits a court to modify a subpoena whose enforcement would violate Rule 45(c)(3)(A)(ii), on the facts of this case the Court would in any event exercise its discretion to quash, rather than modify, the subpoena served upon Sasaki.
It is not clear that the Court can fashion a modification to the subpoena that would both satisfy the requirements of Rule 45(c)(3)(A)(ii) and be appropriate to the particular circumstances presented here. As already noted, even on respondents' interpretation of Rule 45, the Court cannot order Sasaki to appear for a deposition here in New York — the Court must either "quash or modify" that deposition. The only plausible modification that would bring the subpoena into compliance with Rule 45(c)(3)(A)(ii) would change the location of the deposition from New York to Tokyo. Were Sasaki a resident of another judicial district in the United States, that approach might seem an altogether sensible, appropriate, and straightforward exercise of this Court's discretion to "quash or modify" the subpoena. See Matthias Jans, 2001 WL 1661473, at *2-*3.
In this case, however, modifying the subpoena to require attendance at a deposition in Japan would be a more complicated endeavor. Japanese law authorizes a deposition in Japan for use in U.S. courts only if (1) the witness or party is willing to be deposed, (2) the deposition takes place on U.S. consular premises, (3) a consular officer presides over that deposition, pursuant either to a letter rogatory issued by a U.S. court or to a court order (for example, under the All Writs Act, 28 U.S.C. § 1651) that specifically authorizes a U.S. consular officer to take the deposition on notice, and each participant traveling from the United States to Japan to participate in the deposition obtains a "deposition visa." Resp. Ex. C. (circular on obtaining evidence in Japan issued by U.S. Department of State); see Consular Convention and Protocol, Mar. 22, 1963, U.S.-Japan, art. 17(1)(e)(ii), 15 U.S.T. 768; Fed.R.Civ.P. 28(b); 22 C.F.R. §§ 92.49-92.71. Respondents are perfectly aware of these procedures — indeed, they characterize the burdens of these procedures as one of the reasons why the motion to quash should be denied, arguing that they are "not likely to be able to obtain satisfactory discovery" from Sasaki unless he is deposed in the United States or, in respondents' paradoxical phrase, is "required to consent" to his deposition in Japan. (Resp. Br. 13.) It is not clear, however, that the authority granted in Rule 45(c)(3)(A)(ii) to modify a subpoena extends to the kinds of "modifications" that would be required to permit the subpoena to comply with these requirements by functioning as the equivalent of a letter rogatory or a court order authorizing a U.S. consular officer to take the deposition. Even less clear is how this Court would be able to modify the subpoena, as the respondents suggest, so as to "require" Sasaki to "consent" to his deposition in Japan.
Japan is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, and accordingly, the "letter of request" procedures under that convention are not available to the respondents.
Tellingly, while the respondents argue vigorously that the Court has the authority to modify the subpoena served upon Sasaki, they finesse the question of what particular modifications the Court should make to that subpoena.
But even if such authority did exist under Rule 45, prudential, international comity-based considerations counsel that the Court refrain under the circumstances of this case. "American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position." Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U.S. 522, 546 (1987); see also In re Chase Manhattan Bank, 297 F.2d 611, 613 (2d Cir. 1962) (modification of subpoena directing production of documents located in Panama is appropriate where compliance would necessitate violation of Panamanian law); Ings v. Ferguson, 282 F.2d 149, 152 (2d Cir. 1960) ("Upon fundamental principles of international comity, our courts dedicated to the enforcement of our laws should not take such action as may cause a violation of the laws of a friendly neighbor or, at the least, an unnecessary circumvention of its procedures."); Laker Airways, Ltd. v. Pan American World Airways, 607 F. Supp. 324, 326 (S.D.N.Y. 1985) (quashing subpoenas seeking depositions of non-party witnesses where service of the subpoenas in New York constitutes "a transparent attempt to circumvent the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters"). The Court in the best position to exercise such supervision is not this Court, which merely has jurisdiction over the subpoena issued on its behalf, but the district court in North Carolina before which the underlying action itself is pending. This Court may not transfer the instant motion to quash to the North Carolina court, since "only the issuing court has the power to act on its subpoenas." In re Sealed Case, 141 F.3d 337, 341 (D.C. Cir. 1998) (reversing D.C. district court's transfer of motion to quash subpoena and cross-motion to compel to district court in Arkansas). However, the respondents remain perfectly free to seek from the North Carolina court a letter rogatory or an order authorizing consular officials to preside over the deposition of Sasaki and any other witnesses in Japan whose testimony might be relevant to this action.
If these various considerations counseling against modification of the subpoena might be overcome in some unusual circumstances by a compelling need of a party to obtain discovery, this case presents no such circumstances. As an officer of Aioi, Saskai has no direct knowledge of the facts at issue between Nissan and Fortress Re in the pending litigation; the testimony he could provide would at best constitute indirect evidence on the issues in that case. Nor is it clear that Sasaki personally is the best source of information about Fortress Re's contacts with Aioi; neither party to this motion has addressed the potential for serving a Rule 30(b)(6) deposition or other discovery demand on Aioi in North Carolina. As for Fortress Re's dispute with Aioi, that dispute is apparently under arbitration, and the arbitrators will have ample power to determine what discovery is necessary in that matter.
Accordingly, it is not necessary to resolve the various questions raised by this motion concerning the interpretation of Rule 45. "When it is necessary to seek evidence abroad," prudential considerations of international comity require the district court "to supervise pretrial proceedings particularly closely to prevent discovery abuses. Aerospatiale, 482 U.S. at 546. This Court is ill placed to play that supervisory role, given its limited knowledge of the underlying case. Thus, the motion to quash will be granted without prejudice to an application by the respondents to that court for a letter rogatory or other appropriate order relating to discovery from Aioi or Sasaki.
II. Motion for Sanctions
Rule 45(c)(1) of the Federal Rules of Civil Procedure obligates a party or attorney responsible for the issuance and service of a subpoena to "take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena," and requires the court on whose behalf the subpoena is issued to "enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee." Fed.R.Civ.P. 45(c)(1).
Sanctions are not appropriate under the circumstances of this case. Issuance and service of the subpoenas upon the movants was not itself in any way improper, since the respondents had a good faith basis for believing that the movants' testimony would be relevant to the North Carolina action, and as the above discussion shows, there are legitimate questions concerning the effect of Rule 45(c)(3)(A)(ii) on this case. Moreover, subsequent to the issuance of the subpoenas, respondents and their counsel have negotiated in good faith to make any accommodations necessary with respect to time, location, or both in order to ease the potential burden that appearance for the deposition would present to the movants. While the movants argue that "an attempt to enforce a supboena that violates the mandatory provisions of Rule 45(c)(3) is a per se violation of the Rule 45(c)(1) duty," Movants Br. 7 (quoting Matthias Jans Assocs., 2001 WL 1661473, at *3), the Court cannot conclude that at the time the subpoenas were served, the respondents lacked a good faith belief that the subpoenas were properly served. The various questions concerning the proper interpretation of the territorial restrictions set forth in Rule 45(c)(3)(A)(ii) have not yet been addressed by many courts, let alone definitively resolved. It would seem appropriate, therefore, that the difficult "questions about [the rule's] territorial range . . . should have definitive answers from decisional law before attorneys who must guess at the answers start getting sanctioned for guessing wrong." Siegel, supra, 139 F.R.D. at 227-28.
Since the respondents have heeded their obligation to "take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena," Fed.R.Civ.P. 45(c)(1), the motion for sanctions will be denied.
CONCLUSION
For the foregoing reasons, the motion to quash the subpoena served upon Sasaki is GRANTED. The motion for sanctions pursuant to Fed.R.Civ.P. 45(c)(1) is DENIED.