Florida receives a significant amount of commerce and investment from foreign companies. Quite frequently, these foreign companies sue Floridians on a variety of grounds and causes of action. The defendant appear in Florida court to defend, and begins to issue notices of deposition to the foreign company for deposition of various employees, shareholders, directors, officers, and managers of the foreign company. Inevitably, this brings forward the recurring dispute as to whether employees of a foreign company suing in Florida must each show up in Florida for deposition upon notice alone, or instead can sit and wait idle for letters rogatory with subpoenas to arrive through international diplomatic channels, only to then ignore those subpoenas to uncertain effect in the Florida litigation. This article provides a brief primer on the debate and the basic Florida law underlying the obligation for managing agents of a foreign company plaintiff to appear in Florida to testify upon notice to the company alone.

If you have questions as to deposition of a foreign company plaintiff and its officers, directors, shareholders, owners, and managing agents, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349

When a foreign company sues in Florida, it becomes incumbent on that company and its owners and management to show up for discovery, not force the defendant to great lengths and expense to find the plaintiff in the foreign countries from which they sued.

Under Florida law, plaintiffs are generally required, upon notice alone, to give their deposition in the forum where their action is pending, absent a showing of good cause. Bob Hilson & Co., Inc. v. Garcia, 985 So. 2d 1176, 1176 (Fla. 3d DCA 2008) (quashing order that plaintiff’s deposition be taken in Mexico); Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc, 817 So. 2d 1033, 1035 (Fla. 3d DCA 2002) (foreign company must produce agents in Florida); Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993) (plaintiff must appear for deposition where suit filed).

The basis for this rule is simple. Having selected the forum in which to institute their action, plaintiffs and their agents must be prepared to appear there. Logitech at 1035 (“The whole point of our jurisdiction and venue laws is not to hale defendants into foreign jurisdictions where they are not seeking affirmative relief.”).

Because a defendant does not bring the lawsuit, a defendant cannot be required to travel a great distance or incur substantial expenses in depositions, where the defendant is not seeking affirmative relief. Santelli at 547. Otherwise, “the plaintiffs have received an unfair advantage,” by extending defendants to afford to send attorneys or subpoenas to the plaintiffs’ foreign jurisdictions, and limiting the ability to summon plaintiffs’ corporate witnesses to Florida. Logitech at 1035.

A defendant can compel non-seriatim depositions of managing agents on notice to the company alone.

Florida law is plain that a defendant can compel various non-seriatim depositions of additional corporate representatives, agents, officers, owners, shareholders, directors, or other affiliated persons who may have knowledge of the relevant matters, and the plaintiff must produce the witnesses locally for deposition. Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So. 2d 1033, 1035 (Fla. 3d DCA 2002) (foreign plaintiff had to produce various corporate agents locally for deposition upon a simple notice of taking deposition, and the trial court departed from the essential requirements of law in forcing defendant to travel great distances to avail itself of the right to discovery); Bob Hilson & Co., Inc. v. Garcia, 985 So. 2d 1176, 1177 (Fla. 3d DCA 2008) (granting petition for certiorari where trial court ordered that plaintiff’s deposition be taken in Mexico, based on unsworn representations of counsel); see also Regalado v. Vila, 225 So. 3d 874, 875 (Fla. 3d DCA 2017); Remington Lodging & Hospitality, LLC v. Southernmost House, LTD., 206 So. 3d 764, 766 (Fla. 3d DCA 2016) (company not entitled to order precluding depositions of its officers); Racetrac Petroleum, Inc. v. Sewell, 150 So. 3d 1247, 1252 (Fla. 3d DCA 2014) (aff’ing order compelling additional depositions of corporate officers).

In other words, a defendant does NOT need to issue subpoenas or engage in letters rogatory through international diplomatic channels in order to obtain the deposition of a managing agent of a foreign company plaintiff. In certain cases, a defendant may even obtain deposition of certain empowered employees of a foreign company, without more than notice to the company alone.

Of course, foreign companies will often go to great lengths to muddy the definition of a managing agent, to remove corporate witnesses from their management positions to avoid depositions, and to otherwise oppose non-seriatim depositions.

The rule of procedure governing depositions of companies, Florida Rule of Civil Procedure 1.310(b)(6), was specifically amended to prevent corporate witness manipulation of the rule allowing deposition of a foreign company’s managing agents upon notice alone: “[i]t was to cure this problem . . . [and] reduce the difficulties now encountered in determining, prior to taking of a deposition, whether a particular employee or agent is a ‘managing agent.’” Plantation-Simon Inc. v. Bahloul, 596 So. 2d 1159, 1161 (Fla. 4th DCA 1992). As stated in Plantation-Simon:

Clearly a party has the right to take a deposition of an officer, director or managing agent of a corporation or partnership or government agency, already named and served as a party, by simple notice and without the necessity of serving the official with a witness subpoena. To hold otherwise would allow a virtual return to the very pre-1970 game of corporate ping-pong that the amendment [to Rule 1.310(b)(6)] was designed to end.

Plantation-Simon at 1162

Nevertheless, manipulation of foreign company depositions persists and is a perennial issue in trial court.

A trial court should not deny the right to depose managing agents of foreign companies on notice alone.

If a foreign company refuses to produce its managing agents, officers, directors, or shareholders for deposition, a defendant will file a motion to compel the deposition, seeking the trial court’s order compelling the corporate witness to appear in Florida upon notice to the company alone.

To deny the motion, a trial court must: (i) make findings to rebut the suggestion by the movant that a person is a material witness, (ii) make findings of good cause to preclude the particular deposition, and (iii) avoid reliance on unsworn representations of opposing counsel. Adkins v. Sotolongo, 227 So. 3d 717, 719–20 (Fla. 3d DCA 2017); Medero v. Fla. Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d DCA 1995); Sabol v. Bennett, 672 So. 2d 93, 94 (Fla. 3d DCA 1996); Ruiz v. Steiner, 599 So. 2d 196, 198–99 (Fla. 3d DCA 1992). This results in a material injury for the remainder of the case that cannot be corrected on post-judgment appeal. Id.; Logitech at 1035; Bob Hilson at 1177. Failure to adhere to these rules is a departure from the essential requirements of law, subject to reversal on appeal.

If you have questions as to deposition of a foreign company plaintiff and its officers, directors, shareholders, owners, and managing agents, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.