New York District Court Rules a Non-Party Must Prepare a Witness with Documents from Overseas

A recent decision in the Southern District of New York, Wultz v. Bank of China, 2014 U.S. Dist. Lexis 1841 (S.D.N.Y. February 13, 2014), required a non-party bank to prepare a Rule 30(b)(6) witness with information that was only available overseas. There, the Bank of China subpoenaed Bank Hapoalim, a non-party Israeli bank, requesting documents pertaining to transactions and wire transfers involving an alleged Islamic Jihad leader. Bank Hapoalim moved to quash, arguing that Rule 45 did not require it to prepare a witness when there were no employees in its New York office with knowledge of the subpoena topics, and to comply, the bank would have to produce a witness from Israel, which would violate the 100-mile rule in Rule 45. Bank of China responded that because the court had jurisdiction over the New York branch of Bank Hapoalim that Rule 30(b)(6) required that bank to prepare a New York employee to testify.

One of the questions addressed by the court was whether requiring Bank Hapoalim to comply with its affirmative duty to prepare a designee for Rule 30(b)(6) testimony constitutes an undue burden in light of the assertion that all of the individuals with relevant information or knowledge about the wire transfers reside or work in Israel.

The court decided that it can compel Bank Hapoalim to select a designee and educate that person in accordance with its duty under Rule 30(b)(6). The testimony to be elicited “represents the knowledge of the corporation, not the individual deponents.” Therefore, “the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.” The duty goes beyond matters personally known to that designee. The court reasoned that compliance does not appear to be an undue burden. “A person in New York can easily be educated by a person in Israel by telephone, email or videoconference and relevant documents can easily be transmitted on a single flash drive or CD-ROM.” The court also noted that in the age of videoconferencing, Bank Hapoalim can agree to a deposition by video of an employee in Israel.