Business Court Orders Japanese CEO To Appear In the U.S. For Deposition

 

 So much of discovery depends on agreement: for example, where and when will the officers of an out of state corporate defendant appear for their depositions.  And what about an out of country defendant?  Can you make their representatives appear in the United States for a deposition if you can't persuade opposing counsel to do so?  There was no North Carolina state court authority on this point until yesterday, when Judge Jolly ordered in Cheatham v. Ribonomics, Inc., that the president and CEO of a Japanese company (MBL) which had invested in a North Carolina entity (Ribonomics) would be required to appear for a deposition in one of the 48 continental United States, the state to be  agreed upon by all counsel.

Before making that ruling, the Court denied Plaintiff's request for a video deposition   He based that denial on "notions of international comity and foreign sovereignty" as protected by the Hague Convention.  Since the witness would have been on Japanese soil for a video deposition, Judge Jolly observed that Japan's territorial sovereignty would be implicated.    The defendants said that Japanese law prohibits the taking of video depositions.

The same concerns for comity and sovereignty are not present when a foreign national's deposition is taken in the U.S.  From there, it becomes a question whether the Court has jurisdiction over the defendant corporation.  Because of MBL's controlling interest in Ribonomics, the Court found that MBL was subject to personal jurisdiction, and that it therefore could be "compelled under Rule 30(b)(6) to produce its officers, directors or managing agents in the United States to give deposition testimony."

Judge Jolly concluded his Order by directing counsel to agree on the "time, place, date and mechanics" of an in-person  deposition to take place "in any one of the States of the United States, other than Hawaii and Alaska."

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