Lopez v. Watchtower Bible & Tract Society of New York, Inc.

A non-party witness must be subpoenaed for a deposition unless, among other things, the witness can be expected to comply with a party’s directive to appear for the deposition.  Ordinarily, a party may take a deposition of a non-party only by serving the non-party with a subpoena.  (CCP 2025.280(b).)  However, a subpoena is not required if the deponent is an officer, director, managing agent, or employee of a party.  (CCP 2025.280(a).)  To be treated as a managing agent, the deponent need not be an employee of the party or otherwise officially associated with it, but the deponent must be shown to (a) exercise judgment and discretion in dealing with the party’s affairs, (b) be expected to comply with the party’s directive to appear, and (c) identify himself with the party’s interest.  Here, plaintiff satisfied only (a) and (c) with regard to a deponent who was a long-time member of the Governing Board, which set policy for the Watchtower organization.  But there was no evidence as to (b)—such as proof that the deponent received compensation from the Watchtower or that he or other Governing Board members had previously appeared for deposition at the Watchtower’s command.  So the trial court erred in sanctioning the Watchtower for failing to produce the deponent for deposition.  The trial court abused its discretion in ordering terminating sanctions as the first sanctions for defendant’s repeated failure to produce documents.  There was no showing that lesser sanctions would not have prevented prejudice to the plaintiff or would not have compelled compliance by defendant.

California Court of Appeal, Fourth District, Division 1 (Haller, Acting P.J.); April 14, 2016; 2016 WL 1465464

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