The case of the day is Calderon v. Experian Information Solutions, Inc. (D. Idaho 2012). Jose Luis Calderon sued Experian for violations of the Fair Credit Reporting Act. He sought to take the depositions of three employees of Experian Services Chile, S.A., Experian’s “sister corporation,” located in Santiago. The witnesses were people who had “processed several of the numerous requests that [Calderon] had made to Experian to have incorrect information removed from his credit report.” Experian argued that Calderon could not take the depositions under the Federal Rules of Civil Procedure but instead had to proceed by letter rogatory (Chile is not a party to the Hague Evidence Convention). “This would mean,” the judge noted gravely, “that a Chilean judicial officer, rather than Plaintiff’s attorneys, would conduct the examination of the witnesses.” The horror!

While the judge’s discussion of the relevant rule, FRCP 30, was a little muddled, the judge concluded, correctly I think, that Calderon could compel Experian to produce the three witness only if they were officers, directors, or managing agents of the company.¹ They plainly were not officers or directors, so the question was whether they were managing agents. The judge construed the term “managing agent” rather expansively for my taste to find the Chilean employees were managing agents of the US party. The court considered Chile’s possible sovereignty concerns but found that because the depositions were to be taken by notice rather than by subpoena, there were no such concerns. This is surprising, since even though Chile is not a party to the Hague Evidence Convention, it bears noting that under Aerospatiale the interests of the foreign state are to be considered as a factor in determining whether discovery can proceed under the FRCP. In other words, I do not think that it is right to say that the foreign state’s sovereignty concerns necessarily carry no weight just because the target of the discovery is a party rather than a non-party.

1. Under FRCP 30(b)(1), a party seeking a deposition of a corporation or other entity can designate a corporate representative by name and take the risk that the representative will not know the answer to the particular questions asked. The alternative is proceeding under FRCP 30(b)(6), identifying the topics of the questions and putting the burden on the corporation to designate a representative who will be prepared to answer the questions.