Rupert Murdoch will be deposed for two days this week in the defamation case Dominion Voting Systems brought against Fox News.  The case is pending in Delaware state court.  Murdoch reportedly lives overseas a lot of the time, and has homes in New York and California, but none in Delaware.  So how did he wind up having to testify under oath for a Delaware court?  What authority does that court have to take two solid days away from him, not including the time his lawyers will want him spending in preparation?

Trial lawyers frequently wrestle with how to obtain the testimony of witnesses outside the court’s subpoena power.  Sometimes we try complex, time-consuming inter-jurisdictional procedures for “foreign subpoenas,” which may not even work in the end.  Other times we take the position that the corporate party on the other side must produce a particular employee as a witness.  That is what I suspect happened here.

Federal Rule of Civil Procedure 30(b)(6)—which many state rules mimic—only goes so far.  Generally, a corporate party like Fox News may select an officer, director or managing agent to testify on its behalf regarding matters designated by the opposing party in a Rule 30(b)(6) notice of deposition.  Here, it is highly unlikely that Fox News offered up Murdoch—the 91-year-old Chair of its parent company—to testify on its behalf regarding any matter.  It is more likely that Dominion specified Murdoch as a witness in a notice of deposition served on Fox News.

Whether Fox News then had to comply with that notice of deposition generally depends on whether Murdoch is an “officer, director, or managing agent” of the defendant entity Fox News Network, LLC.  Perhaps not a close call for Murdoch, but it can be a close call for employees less visibly identified with a corporation, applying a “sketchy” (not my word, as you’ll see) court standard.

An opinion by a Virginia federal court, where I do much of my work, describes the standard.  (The standard has also been adopted by the Virginia state court in Fairfax County, where I also frequently appear.)  The plaintiff in E.I. DuPont de Nemours & Co. v. Kolon Indus., 268 F.R.D. 45, 48-49 (E.D. Va. 2010), noticed the depositions of certain of the defendant’s employees in Korea by serving the notices on the defendant Kolon.  Kolon resisted.  DuPont then moved to compel the depositions.

It is not hard to imagine why DuPont took this route through the corporate defendant Kolon, rather than attempting legal process in Korea to force the individuals to testify in the United States, although DuPont may have been taking both routes simultaneously.

In determining whether Kolon had to produce the employees for deposition, after calling “the law concerning who may properly be designated as a managing agent . . . sketchy,”, the court adopted the factors introduced in In re Honda Am. Motor Co., 168 F.R.D. 535, 540 (D.Md.1996):  

[T]he several factors that generally are considered in making a case-specific determination of a person’s managing agent status [are]: (1) the discretionary authority vested in the person by the corporation; (2) the employee’s dependability in following the employer’s directions; (3) whether the individual is more likely to identify with the corporation or the adverse party in the litigation; and (4) the degree of supervisory authority in areas pertinent to the litigation.  Of these factors, the third—the employee’s identity of interests with his employer as opposed to the opposing party—is ‘paramount.’ 

The court also observed:

Honda also notes ‘the general responsibilities of the individual regarding the matters at issue in the litigation’ as a factor to be considered.  Care must be taken not to confuse the analysis by suggesting that parties who are intimately involved in matters concerning the litigation, but do not manage, have attributes of managing agents.  Of course, the fact that the proposed deponent was deeply involved in the subject matter of the litigation can provide evidence respecting the nature of his or her level of responsibility.

The court then applied the Honda factors to find that five of the employees were managing agents due to their discretionary authority, long history of service, large supervisory authority, and strong identity of interest with Kolon.  As to the others, the court held that it could not find them to be “managing agents” due to lack of evidence that they were “managing anything.”

Now you know that the next time you hear about someone being deposed in a court far away from home, it may be by virtue of a “sketchy” court standard for identifying managing agents.