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Case of the Day: Calderon v. Experian Information Solutions

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.

Notes:

  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.

Case of the Day: Barnett v. Miguel

The case of the day, Barnett v. Miguel (D. Idaho 2011), is another example of the trouble US plaintiffs can have in attempting service of process in Mexico. The plaintiffs, Jerry Ray and Barnett and Richard Getty, sued three Mexican defendants, Alfredo Miguel, Pepe Miguel, and Alfredo Miguel Jr., alleging racketeering under Idaho law. The magistrate judge authorized Barnett and Getty to serve the Miguels in Mexico by mail, and the defendants objected. The judge agreed that service by mail in Mexico is impermissible under the Convention, as discussed in the post on Mitchell v. Volkswagen. The plaintiffs also transmitted the papers to the Mexican central authority, but because the central authority had notified the plaintiffs of deficiencies in their request under the Hague Convention, the judge concluded that Article 15 (which permits the court to proceed to a default judgment if the central authority has not responded to the request for service within six months) was irrelevant.

The defendants had appeared in the case, first to remove it from the Idaho state court to the federal court, and second, to oppose the magistrate judge’s decision on service by mail. So the obvious answer for the plaintiffs is to seek approval for alternative service on the defendants’ US lawyer.