Summary
holding trial court departed from essential requirements of law by ordering Scripto to produce nonresident former corporate officer for videotape deposition because it was legally unable to procure his attendance
Summary of this case from Packaging Corp. of America v. DeryckeOpinion
No. 93-1083.
September 7, 1993.
Petition from the Circuit Court, Dade County, Margarita Esquiroz, J.
Blackwell Walker and Arthur M. Simon and James Tribble, Miami, for petitioner.
Perse Ginsberg and Arnold Ginsberg, Ratiner Glinn, Miami, for respondents.
Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.
The petitioner, Scripto Tokai Corporation, files this writ of Certiorari to review an order denying petitioner's motion for protective order.
Respondents filed a personal injury claim against petitioner. Respondents served notice of taking a video tape deposition of Tomio Nitta, a former corporate officer of Scripto. Scripto filed for protective order stating that Nitta was not a U.S. resident and was not involved in the day-to-day activities of the corporation. The motion for protective order was denied and Scripto was required to produce the former director in California for deposition.
Since Nitta ceased to be a director before his deposition was to be taken, he can only be deposed upon being served with a subpoena. The trial court erred in denying Scripto's motion for a protective order as Scripto is unable to cause Mr. Nitta to travel from Japan to the United States for the taking of a non-party deposition. Mitchell v. American Tobacco Company, 33 F.R.D. 262 (M.D.Pa. 1963); Sykes International, Ltd. v. Pilch's Poultry Breeding, 55 F.R.D. 138 (D.Conn. 1972).
The respondents may depose Nitta, but Scripto cannot be compelled to produce him. The respondents may pursue him in his individual capacity however. See Cameo-Parkway Records, Inc. v. Premier Albums, Inc., 43 F.R.D. 400 (S.D.N.Y. 1967).
Therefore, we find that the trial court departed from the essential requirements of law in denying the protective order and we hereby quash same.
Order under review quashed.