The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Defendants Stuart Bentham and Michael Cecil have filed a motion to
compel the depositions of three alleged directors, officers, or managing
agents of plaintiff Afghan Wireless Communications Company ("AWCC') as
representatives of the Afghanistan based corporation. Plaintiffs
Telephone Systems International, Inc. and AWCC assert that these three
individuals, Abdul Rahim Saidjan, Mohammad Masoom Stanekzai, and Sami
Wali, are not currently members of AWCC's Board of Directors, and that
they bear no other relationship to the corporation that would require
their production. For the reasons discussed below, defendants'
application is DENIED.
Rule 30(b)(1) of the Federal Rules of Civil Procedure permits a party
to compel the deposition of a specific officer, director, or managing
agent of a corporation by a notice of deposition. Dubai Islamic Bank v.
Citibank, N.A., 99 Civ. 1930, 2002 U.S. Dist. LEXIS 9794. *5-6 (S.D.N.Y.
May 28, 2002) See generally 8A Charles Alan Wright, Arthur R. Miller,
Richard L. Marcus, Federal Practice and Procedure § 2103 (2d ed.
1994) Defendants Bentham and Cecil claim that Saidjan and wali are
current members of the Board of Directors.
Memorandum of Law in Support of Cecil and Bentham's Motion to Compel
("Defendants' Mem. of Law") at 7, or in the alternative, that they are
managing agents of AWCC, and thus are subject to deposition by notice.
Reply Memorandum of Law in Further Support of Cecil and Bentham's Motion
to Compel ("Defendants' Reply Mem. of Law") at 5. As evidence of Saidjan
and Wall's status as directors, defendants assert that these individuals
attended various board meetings up to 2002, see Defendants' Mem. of Law
at 8, and that they told defendant Bentham in 2003 that they were still
directors. See Affidavit of Stuart Bentham at 3. Plaintiffs state,
however, that a new roster of board members was elected in May 2003 that
does not include any of the three disputed individuals. See Plaintiffs'
Memorandum of Law in Opposition to Defendants' Motion to Compel
("Plaintiffs' Mem. of Law") at 3-4; Declaration of Amin Ramin at 3, Exh.
A. On the basis of an affidavit by Abdul Rahman Rahimghiyasa, an attorney
authorized to practice law in Afghanistan, defendants Bentham and Cecil
counter that this May 2003 election of new board members was illegal
under Afghan law, and that Saidjan and Wall remain directors of the
board. See Reply Affirmation of Abdul Rahman Rahimghiyasa at 3-4. The
Court finds that the opinion expressed in Rahimghiyasa's affidavit is not
sufficient to establish Afghan law on the subject of whether these
individuals are board members.
Additionally, defendants Bentham and Cecil claim that managing agent
status can be conferred by the Court when a corporation purposefully
directs a director to leave to frustrate discovery. See Defendants' Reply
Mem. of Law at 5-6. Even if this were legally permissible, defendants
have not provided sufficient evidence that the AWCC purposefully directed
such action. Defendants' assertion appears to rest chiefly on the
affirmation by Rahimghiyasa regarding Afghan law, which the Court has
already found legally insufficient. Defendants' claim
regarding managing agent status is therefore similarly unsubstantiated.
The burden of determining the status of a witness is on the examining
party, see Dubai, 2002 U.S. LEXIS, at *11 (citing Sugarhill Records Ltd,
v. Motown Record Corp., 105 F.R.D 166, 170 (S.D.N.Y. 1985)), and thus
defendants' motion to compel the depositions of Saidjan and Wali is
In addition, defendants Bentham and Cecil assert that Stanekzai, the
current Minister of Communications of Afghanistan, is a director,
officer, or managing agent of the AWCC, and is therefore subject to
deposition by notice. See Defendants' Mem. of Law at 10; Defendants'
Reply Mem. of Law at 7-8. Defendants claim that according to the by-laws
of the AWCC, the Minister of Communications is an honorary
chairman. See Defendants' Mem. of Law at 10; Defendants' Reply Mem. of
Law at 7-8; Reply Affidavit of Stuart Bentham at 7. They allege that
Stanekzai provides "significant input into running and making important
decisions for AWCC," see Defendants" Reply Mem. of Law at 7, that he was
present at a meeting in May 2003 where the new roster of board members was
nominated and approved, that he engaged in discussion at that meeting
about a project in contention, and that he has knowledge of the current
lawsuit brought by plaintiffs. Id. at 7-8. Plaintiffs concede that the
Minister of Communications possesses an equity interest in the AWCC, but
appear to argue that this relationship is not equivalent to that of a
director, officer, or managing agent. See Plaintiffs' Mem. of Law at 5.
Apart from the legally insufficient affidavit by Rahimghiyasa regarding
Afghan law, defendants have not included any evidence or discussion to
demonstrate that an "honorary chairman" is tantamount to a director or
actual officer of the corporation. Similarly, defendants' assertions
regarding Stanekzai's role in AWCC, even if taken as true, cannot
sufficiently establish that he is a "managing agent." This district has
employed several factors to determine whether a witness is
a managing agent, including 1) whether the individual is invested with
general powers allowing him or her to exercise judgment and discretion in
corporate matters; 2) whether any person is employed by the corporation
in a position of higher authority than the designated individual; 3) the
general responsibilities of the individual respecting the matters
involved in the litigation; and 4) whether the individual can be expected
to identify with the interests of the corporation. See United States v.
Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994)(noting a
total of five factors for determining managing agent status); Sugarhill
Records, 105 F.R.D. at 170. Defendants, who presumably have advanced
knowledge of the corporation's inner workings as past board members, have
simply failed to bring forth adequate evidence to support a finding that
Stanekzai is a managing agent. Because defendants have not met their
burden, their motion to compel the deposition of Stanekzai is also
Pursuant to this order, defendants' additional application for a
protective order scheduling the depositions of defendants Bentham and
Cecil in close proximity to those of Saidjan, Stanekzai, and Wali is
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