Crest Infiniti, II, Lp v. Swinton

• Court: Oklahoma Supreme Court
• Writing for the Court: Edmondson
• Citation: Crest Infiniti, II, Lp v. Swinton, 174 P.3d 996, 2007 OK 77 (Okla. 2007)
• Decision Date: 09 October 2007
• Docket Number: No. 104,884.,104,884.
• Parties: CREST INFINITI II, LP, d/b/a Crest Infiniti, Crest Infiniti/Cadillac/Olds Isuzu; Crest Auto Group, Van Enterprises, and VT, Inc., Petitioners, v. Honorable Barbara G. SWINTON, District Judge of the 7th Judicial District Court Oklahoma County, Respondent.

174 P.3d 996

2007 OK 77

CREST INFINITI II, LP, d/b/a Crest Infiniti, Crest Infiniti/Cadillac/Olds Isuzu; Crest Auto Group, Van Enterprises, and VT, Inc., Petitioners, v. Honorable Barbara G. SWINTON, District Judge of the 7th Judicial District Court Oklahoma County, Respondent.

No. 104,884.

Supreme Court of Oklahoma.

October 9, 2007.

As Corrected October 10 and October 17, 2007.

APPLICATION FOR EXTRAORDINARY RELIEF

¶ 0 In Cause No. CJ-2006-9716, (consolidated with Nos. CJ-2006-9954 and CJ-2006-9955), on the docket of the District Court of Oklahoma County, plaintiffs sought to depose two named individuals by providing notice to counsel representing corporations named as parties. Defendants sought a protective order, filed a motion to quash the deposition notices, and argued that subpoenas were required and that the apex doctrine barred the depositions. The Hon. Barbara Swinton, District Judge, denied the motions to quash and for protective order and defendants sought extraordinary relief.

We hold that

(1) a party may name a specific individual in a notice to take the deposition of a party corporation provided that the individual is a director, officer, managing agent, or some other individual who is authorized to speak for the corporation, and (2) the burden to show that a deposition of a corporate official is for the purpose of annoyance, harassment, embarrassment, oppression or undue delay, burden or expense, is upon the party or individual objecting to discovery; further, the Court declines to adopt the apex doctrine.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; WRIT OF PROHIBITION ISSUED WITH DIRECTIONS

Paul A. Bezney, Tracy L. Stoker, Adkerson, Hauder & Bezney, P.C., Dallas, TX, for Petitioners Crest Infiniti II L.P. d/b/a Crest Infiniti; Crest Infiniti/Cadillac/Olds Isuzu, and Crest Auto Group; Van Enterprises; and VT, Inc.

Derrick Teague, Jeffrey W. Miller, Jennings, Cook & Teague, Oklahoma City, OK, for Petitioners Crest Infiniti II L.P. d/b/a Crest Infiniti; Crest Infiniti/Cadillac/Olds Isuzu, and Crest Auto Group; Van Enterprises; and VT, Inc.

Steven E. Holden, Michael L. Carr, S. Travis Dunn, Holden Carr & Skeens, Tulsa, OK, for Petitioners Crest Infiniti II L.P. d/b/a Crest Infiniti; Crest Infiniti/Cadillac/Olds Isuzu, and Crest Auto Group.

J. Logan Johnson, E. Edd Pritchett, Jr., Katherine T. Loy, Durbin, Larimore & Bialick, Oklahoma City, OK, for Real Party in Interest, Brent Edward Sykes, individually, and as personal representative of the estate of Traci Renae Sykes.

Ed Abel, Lynn B. Mares, Kelly S. Bishop, Abel Law Firm, Oklahoma City, OK, for Real Parties in Interest, Rodney Eischen & Shannon Eischen.¹

EDMONDSON, V.C.J.

¶ 1 Petitioners seek extraordinary relief because the order of the trial court requires the attendance of Cecil Van Tuyl and Larry Van Tuyl for depositions via notice to petitioners' counsel, although the named individuals are not named parties. Cecil was noticed to appear in Overland Park, Kansas, and Larry in Phoenix, Arizona. The notices are directed to the named petitioners and specify the named individuals to be deposed. This controversy involves first-impression issues involving procedures for compelling the attendance of corporate officials for deposition. We assume original jurisdiction pursuant to Okla. Const. Art. 7 § 4 to address a first-impression issue. Christian v. Gray, 2003 OK 10, ¶ 3, 65 P.3d 591, 596.

¶ 2 We may look to discovery procedures in the federal rules when construing similar language in the Oklahoma Discovery Code. Scott v. Peterson, 2005 OK 84, ¶ 22, 126 P.3d 1232, 1238; Conterez v. O'Donnell, 2002 OK 67, n. 7, 58 P.3d 759, 761. Language in the Oklahoma Discovery Code at issue herein is similar to the federal rules: Fed.R.Civ.P. 30(a)(1) and its counterpart in 12 O.S.Supp.2005 § 3230(A)(1),² Fed.R.Civ.P. 30(b)(1) and its counterpart in 12 O.S.Supp.2005 § 3230(C)(1),³ and Fed.R.Civ.P. 30(b)(6) its counterpart in 12 O.S.Supp.2005 § 03230(C)(5).⁴

¶ 3 Prior to the 1970 amendments to Rule 30 of the Federal Rules of Civil Procedure, a party seeking to depose a corporation was required to identify the corporate official to be deposed. Operative Plasterers' & Cement Masons' Intern. Ass'n v. Benjamin, 144 F.R.D. 87, 89 (N.D.Ind.1992), citing, 4A J. Moore, J. Lucas & D. Epstein, Moore's Federal Practice ¶ 30.57[13] (2d ed 1992). A 1970 amendment added Rule 30(b)(6) which "provided an alternative procedure for taking the deposition of an organization. Under this procedure, the party taking the deposition need only describe the subject matter of the examination, and the organization is then required to select and produce the persons who will testify on its behalf." Operative Plasterers', 144 F.R.D. at 89. See Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 256 U.S.App.D.C. 54, 802 F.2d 1448 (D.C.Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987), where the court stated, "The Advisory Committee Note accompanying the Rule made clear that the new procedure does not supplant but `supplements the existing practice whereby the examining party designates the corporate official to be deposed.' The former procedure, long known to the bar, thus remains available for litigants to employ if they see fit." Id. 802 F.2d at 1451. See also Moore v. Pyrotech Corp., 137 F.R.D. 356, 357 (D.Kan.1991); Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 168-169 (S.D.N.Y.1985). The amended rule stated that it "does not preclude taking a deposition by any other procedure authorized in these rules." Founding Church of Scientology, 802 F.2d at 1451, quoting, Fed. R.Civ.P. 30(b)(6).

¶ 4 Pursuant to Fed.R.Civ.P. 30(a)(1) and (b)(1) a party may depose a party corporation and name a specific individual to be deposed as speaking for the corporation, but the party may designate to speak for the corporation only directors, officers, or managing agents. In re Honda Am. Motor Co., Inc., 168 F.R.D. 535, 540 (D.Md.1996); U.S. v. One Parcel of Real Estate at 5860 North Bay Rd., Miami Beach, Florida, 121 F.R.D. 439, 440 (S.D.Fla.1988); GTE Products Corporation v. Gee, 115 F.R.D. 67, 68 (D.Mass. 1987).

¶ 5 Petitioners argue that a deposition of a corporate official must occur, if at all, pursuant to § 3230(C)(5) where the corporation names the individual to be deposed. That is not the practice under the similar federal rules. Section 3230(C)(5) expressly states that "This paragraph does not preclude taking a deposition by any other procedure authorized in the Oklahoma Discovery Code." We hold that the Oklahoma Discovery Code, like the Federal Rules of Civil Procedure, authorizes more than one method to depose an official of a corporation.⁵ An official may be named in the notice to the corporate party, as in the controversy before us, or an alternative procedure in § 3230(C)(5) may be used where specific information is sought and the corporation designates the person to be deposed. Language in Blue Tee Corp. v. Payne Well Drilling, Inc., 2005 OK CIV APP 109, ¶ 12, 125 P.3d 677, 679-680, to the contrary is hereby disapproved. We also hold that a party may name a specific individual in a notice to take the deposition of a party corporation provided that the individual is a director, officer, managing agent, or some other individual who is authorized to speak for the corporation.

¶ 6 While a notice to party's counsel may be used to compel a party to attend a deposition,⁶ a subpoena is used to compel a non-party witness to attend a deposition and a witness fee must be paid.⁷ The Two Amended Notices state that they are directed to Crest Infiniti II, LP, d/b/a Crest Infiniti, Crest Infiniti/Cadillac/Olds Isuzu; Crest Auto Group; Van Enterprises; and VT, Inc., with one notice naming Cecil Van Tuyl and the other Larry Van Tuyl. The notices are § 3230(A)(1) & (C)(1) notices, not § 3230(C)(6) notices. The former requires the individual named in a notice to be a director, officer, managing agent, or some other individual who is authorized to speak for the corporation. If this requirement is not satisfied for this type of notice a subpoena must be used to compel the attendance of a non-party witness.

¶ 7 Petitioners state in their filings in the trial court that Larry Van Tuyl is not an apex corporate official. They also stated that he is not an officer, director, or employee of any of the named parties; but this statement occurs in Petitioners' Supplemental Appendix, No. 15, an "evidentiary supplement to motion to quash" which shows a District Court file-stamp of August 6, 2007, a few weeks after the date of the trial court's order, July 13, 2007, that is challenged in this proceeding. We decline to consider this evidentiary supplement and its attached affidavit dated July 26, 2007, which shows that it was created after the trial court's decision.⁸

¶ 8 A real party in interest states that Larry Van Tuyl owns or operates a company "that along with Van and VT is involved with Crest's management, insurance programs, employee programs.... Larry Van Tuyl has even participated in hiring Crest's employees." Petitioners' Appendix, No. 5, at pg. 7. If Larry is a director, officer, or managing agent of a party corporation he may be noticed, individually, for a deposition through the corporation's counsel appearing in the trial court. But if Larry is not of this classification his attendance at the deposition is as a non-party witness; and if he does not consent to appear, a subpoena is a proper procedure for compelling his attendance.

¶ 9 The trial court transcript of the hearing on the motion to quash the notices for depositions shows the trial court determined that Larry's connection with Oklahoma was sufficient for personal jurisdiction. Although petitioners' record herein is insufficient to show Larry's status as a corporate official, or not, for the purpose of this extraordinary writ proceeding,⁹ the trial court record before ...