Mechanical Marketing, Inc v. Sixxon Precision Machinery Co, Ltd et al
Filing
97
ORDER GRANTING-IN-PART PLAINTIFF'S MOTION TO COMPEL; ORDER GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER by Judge Paul S. Grewal granting 74 Motion for Protective Order; granting in part and denying in part 84 Motion to Compel (psglc1, COURT STAFF) (Filed on 8/29/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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MECHANICAL MARKETING, INC.,
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Plaintiff,
v.
SIXXON PRECISION MARKETING
MACHINERY CO. LTD., TAIWAN,
Defendant.
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Case No.: C 11-01844 EJD (PSG)
ORDER GRANTING-IN-PART
PLAINTIFF’S MOTION TO
COMPEL; ORDER GRANTING
DEFENDANT’S MOTION FOR
PROTECTIVE ORDER
(Re: Docket Nos. 74, 84)
Plaintiff Mechanical Marketing, Inc. (“MMI”) moves to compel the deposition of
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Defendant Sixxon Precision Marketing Machinery Co. Ltd., Taiwan’s (“Sixxon”) Rule 30(b)(6)
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designee in California. MMI also moves to compel production of documents. Sixxon opposes the
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motion and, for its part, moves for protective order. On August 21, 2012, the parties appeared for
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hearing. Having reviewed the papers and considered the arguments of counsel,
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IT IS HEREBY ORDERED that MMI’s motion to compel is GRANTED-IN-PART and
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Sixxon’s motion for protective order is GRANTED.
Sixxon manufactures machine parts, dye castings, stampings and other similar products and
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is located in Taiwan. It is part of a larger group of companies known as Sixxon Global (“SG”).
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MMI is a sales representative firm located in northern California. In 1998, Arnold Dolgins, a
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principal at MMI, and Billy Lin, Sixxon’s then-Chairman, orally agreed that MMI would become a
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Case No.: C 11-01844 EJD (PSG)
ORDER
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sales representative for Sixxon products in the United States. MMI would be paid a commission on
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any sales procured regardless of the particular SG company that completed the customer order. In
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2005, the parties’ orally amended their agreement so that MMI would become the exclusive sales
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representative of Sixxon products. In 2010, Billy Lin’s son, Eddy Lin, succeeded him as chairman
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of Sixxon and advised Sixxon customers to place their orders directly with Sixxon. On October 31,
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2010, the parties terminated their agreement. MMI filed suit against Sixxon alleging that Sixxon
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failed to pay MMI commissions on any orders it had procured.
On February 24, 2012, MMI deposed Eddy Lin in his individual capacity at offices located
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United States District Court
For the Northern District of California
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in Mountain View, California. On April 27, 2012, MMI noticed another deposition to take place in
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California, this time a Rule 30(b)(6) deposition of Sixxon’s corporate designees on the following
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topics:
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The terms of the oral contract that Sixxon, in paragraph 10 of its counter claim
alleges was entered into around December 2005;
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Any and all modifications of the verbal agreement made orally or in writing around
February 2009;
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Preparation of the “Company Profile” sales presentation (“sales presentation”);
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Any and all financial records relied upon to prepare the page of the sales
presentation entitled, “Sales Amount—Sixxon Global Group”;
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Any and all records relied upon to prepare the page of the sales presentation
entitled, “General Information – Sixxon/Global.”
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The deposition notice also sought production of the following documents:
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Any and all financial records, reports or any other form of writing, including but not
limited to data stored electronically, emails, or any other form of recording
information or a communication, that were relied upon or referred to in preparing
the sales presentation.
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MMI contends that Sixxon’s corporate designees should testify in California, and not in
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Taiwan, because counsel for both parties are located in California and in the event they need to
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reach the court to resolve any disputed matters, it too, is located in California. Sixxon has
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represented thus far that only Eddy Lin will be designated as a Rule 30(b)(6) witness. MMI argues
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Case No.: C 11-01844 EJD (PSG)
ORDER
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that based on Eddy Lin’s prior deposition testimony, he will not be able to testify about all of the
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categories identified in the Rule 30(b)(6) deposition notice because he has demonstrated a lack of
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knowledge about who prepared the sales presentation and the financial documents used to prepare
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it. Moreover, Eddy Lin was not employed by the company in 2005 when the parties entered into
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their agreement.
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Sixxon responds that the Rule 30(b)(6) deposition should occur in Taiwan because Sixxon
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is incorporated and located in Taiwan. Its corporate designees, including Eddy Lin, are all located
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in Taiwan and Sixxon will be unduly burdened if they are required to travel and testify in
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California. MMI has not shown grounds to depart from the “general rule” that Rule 30(b)(6)
United States District Court
For the Northern District of California
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depositions occur where the corporation is located. 1
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The court agrees with Sixxon, at least in part. While MMI highlights certain facts that
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would justify departing from the general rule, the court is persuaded that on balance, a deposition
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in the defendant’s corporate locale remains the most appropriate option. The parties shall meet and
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confer regarding the specific location in Taiwan for the deposition. Sixxon is reminded that it
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“must make a conscientious good-faith endeavor to designate the persons having knowledge of the
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matters sought by the party noticing the deposition and to prepare those persons in order that they
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can answer fully, completely, unevasively, the questions posed.” 2 To the extent any witness is not
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sufficiently prepared, the court will not hesitate to order a further deposition, in California, at
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Sixxon’s expense. Sixxon also shall produce all responsive documents that are in its possession,
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custody, or control. These include any documents Sixxon relied upon in producing the sales
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presentation, which MMI has shown Sixxon has control over. All discovery required by this order
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shall be completed no later than September 12, 2012.
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See, e.g., Thomas v. Int’l Bus. Machs., 48 F.3d 478, 483 (10th Cir. 1995) (holding that a
deposition of a corporation by its officers and agents should ordinarily be taken at its principal
place of business) (internal citations omitted); and Fausto v. Credigy Services Corp., 251 F.R.D.
427, 429 (N.D. Cal. 2008) (noting the general presumption that a corporate designee is deposed at
the corporation’s principal place of business).
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See, e.g., In re JDS Uniphase Corp. Sec. Litig., No. C-02-1486 CW (EDL), 2007 WL 219857
(N.D. Cal. Jan. 29, 2007).
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Case No.: C 11-01844 EJD (PSG)
ORDER
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IT IS SO ORDERED.
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Dated:
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
8/29/2012
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United States District Court
For the Northern District of California
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Case No.: C 11-01844 EJD (PSG)
ORDER
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