United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, Magistrate Judge.
This matter is before the Court on Defendants' Motion to Strike the Deposition of Hong Chen and for Sanctions (Doc. 198). For the reasons stated below, the motion will be denied.
I. FACTUAL BACKGROUND
In early September 2014, Emerson's lead counsel (Jennifer Hoekel) and Defendants' lead counsel (Steven LeBlanc) exchanged emails in which they agreed that the personal deposition of Hong Chen and the Rule 30(b)(6) depositions of Suzhou Cleva and Cleva Hong Kong (with Hong Chen as corporate designee) would be conducted October 21st through October 24th in Hong Kong. In an email dated September 9, Mr. LeBlanc requested that Ms. Hoekel let him know whether Emerson planned to have an attorney appear in person so that he could do the same. On September 17, Emerson served Defendants with deposition notices reflecting the agreed-upon dates. Upon receiving the notices, Mr. LeBlanc notified Ms. Hoekel that he had not realized that she would be taking the depositions in person, and he requested that the depositions be delayed by two days so he could attend. It is unclear whether Ms. Hoekel responded.
In a conversation on October 14, 2014, Mr. LeBlanc told Ms. Hoekel that Defendants had associated with local counsel in China who would attend the depositions in person. The parties dispute whether Mr. LeBlanc affirmatively told Ms. Hoekel that Defendants' U.S. counsel also intended to attend the deposition by telephone. In any event, it does not appear that Emerson's attorneys were ever explicitly informed that Defendants would be represented at the deposition by their U.S. counsel and not by the local counsel in China.
Around this time, Ms. Hoekel learned that Emerson wanted Peter Yang, in-house counsel for Emerson, to attend the Hong Kong depositions. Mr. Yang executed a Protective Order assurance, which Ms. Hoekel sent to Mr. LeBlanc on October 20, 2014. Mr. LeBlanc emailed back, objecting to Mr. Yang being present for discussions of sensitive business information that would be designated as Attorneys' Eyes Only under the stipulated protective order but stating, "otherwise, Defendants have no objection to Peter Yang attending the depositions."
On October 22, 2014, Mr. Chen arrived at his deposition with Allen F. Tao, a partner with Liu, Shen & Associates in Beijing, China. According to declarations filed by Ms. Hoekel, the videographer, and the court reporter, Mr. Tao stated that he represented the witness, and he asked that Mr. Moose be connected so that he could appear by telephone. The videographer, who had just set up her own equipment, showed Mr. Tao the phones in the room and told him that they were not in a position where they could be used. Someone from the office attempted to resolve the issue but was not able to do so. According to the declarations of Ms. Hoekel, the videographer, and the court reporter, Mr. Tao stated that the deposition could continue without Mr. Moose's participation. Both the videographer and court reporter stated that they never heard Ms. Hoekel insist that the deposition take place without Mr. Moose or other counsel present. In contrast, according to Mr. Chen's affidavit, Mr. Tao "informed [Ms. Hoekel] that Defendants would be represented by Richard M. Moose, who would participate by telephone, " and "[Ms. Hoekel] responded that no telephone was available in the conference room in which the deposition was being conducted and insisted that the deposition commence as scheduled without Mr. Moose's participation."
The deposition began without Mr. Moose, and Mr. Tao identified himself on the record as "the legal counsel of Cleva Suzhou." At several points, Mr. Tao objected to Mr. Yang's presence. Ms. Hoekel repeatedly refused to ask Mr. Yang to leave, indicating that she was only seeking information that did not qualify as Attorneys' Eyes Only information under the protective order. Ms. Hoekel eventually did ask Mr. Yang to leave.
During the lunch recess, the phone was set up, and Mr. Moose appeared by phone. However, there were technical difficulties, and the deposition was adjourned for the day. When Ms. Hoekel returned to her hotel, she received an email, sent earlier in the day from Mr. LeBlanc, asking her not to conduct any examination without Mr. Moose being present and stating that Mr. Yang was not permitted access to any document designated Attorneys' Eyes Only under the protective order.
Mr. Chen's deposition was resumed the next day. Over the next two days, Mr. Moose appeared by phone, but the connection was repeatedly lost and had to be re-established. Mr. Tao was present for the duration of the deposition; however, Mr. Yang did not return after the first day of depositions.
A. Emerson Did Not Depose Mr. Chen Without Counsel Present Defendants first move to strike the individual deposition of Mr. Chen on the ground that
Ms. Hoekel conducted the deposition without counsel being present. The Court finds no basis on which to strike the deposition. Mr. Chen arrived at his deposition with an attorney, Mr. Tao, who introduced himself as counsel for the witness and who later (on the record) described himself as counsel for "Cleva Suzhou." There is no evidence that Defendants ever informed Ms. Hoekel in advance of the deposition that Mr. Moose, or any other particular attorney, would be representing either the witness or Defendants. There is also no evidence that Defendants ever worked with Ms. Hoekel in advance of the deposition to set up a conference call or other means of allowing Mr. Moose or any other attorney to participate by phone. Ms. Hoekel only learned that Mr. Moose wanted to participate by phone from Mr. Tao, who later stated that the deposition could proceed without Mr. Moose. Under these circumstances, it was reasonable for Ms. Hoekel to believe that Mr. Tao represented Mr. Chen and Defendants, and it was reasonable for her to proceed with the deposition without Mr. Moose's involvement.
Defendants' assertion that Ms. Hoekel "orchestrated" these events by "refus[ing] to answer whether the depositions would be conducted by telephone or in person until it was too late for Defendants' counsel to make travel arrangements" is unpersuasive. There is nothing before the Court to suggest that Defendants' U.S. counsel were falsely lulled into believing that Emerson's counsel would not travel to China to take the depositions in person. Nor is there anything in the record to suggest that Emerson's counsel somehow prevented Defendants' U.S. counsel from attending in person. Indeed, more than a month before the depositions, Defendants were aware that Emerson's counsel would be attending the depositions in person. Defendants have failed to explain why more than a month's notice was insufficient to allow their U.S. counsel to arrange to appear in person. Defendants have also failed to explain why they did not attempt to avoid the problems that arose here by simply advising Emerson's attorneys in advance of the deposition that U.S. counsel (and not the ...