Overview
In an opinion today, Magistrate Judge Gorenstein quashed a Rule 30(b)(6) subpoena that Bank of China (“BOC”) served on the New York branch of the Israeli bank Hapoalim concerning events in Israel, because the subpoena would have required a witness within the Rule 45 jurisdictional territory to gather information from witnesses outside the territory:
Here, there is no evidence disputing Hapoalim’s contention that none of its employees who live and work in New York have any knowledge of the information sought by the subpoena. Thus, in order to produce a knowledgeable designee for the deposition, Hapoalim would presumably have to send an employee from Israel to New York, a distance much greater than 100 miles, a result plainly barred by case law. BOC’s argument is a simple one: because this Court has “jurisdiction” over Hapoalim’s New York branch office, any information within the knowledge of the Hapoalim corporate entity is discoverable by means of a Rule 30(b)(6) subpoena to the New York branch office. The fact that no individual from Hapoalim with knowledge of the subpoenaed topics “resides, is employed, or regularly transacts business in person” within Rule 45's territorial restrictions is of no moment. Instead, BOC’s view is that Rule 30(b)(6) requires Hapoalim to “educate” a New York employee about the subpoenaed information. BOC contends that because Hapoalim could, under this scenario, designate a New York employee to testify without violating the restrictions of Rule 45(c)(3)(A)(ii), it has a duty to do so under Rule 30(b)(6) even if it means educating a New York employee who has no knowledge of the subpoena’s topic areas. We reject this argument. Certainly, Rule 30(b)(6) imposes upon subpoenaed corporations the duty to “make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought . . . and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed . . . .” SEC v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992). However, in the case of nonparties subpoenaed pursuant to Rule 45, a corporations’s duty to respond to a subpoena is subject to the requirements of Rules 45(c)(1) and 45(c)(3)(A)(iv), which mandate that a court must quash a subpoena that subjects a person to “undue burden.” Here, the topics that would be the subject of BOC’s proposed “education” exercise have nothing to do with the New York branch. They are also extensive in scope . . . . It would be unreasonable to expect Hapaolim’s employees with knowledge of these areas to educate an individual in New York who has no knowledge about them whatsoever.
