First-Citizens Bank and Trust Company v. HSBC Holdings PLC, et al.

Background

This is a trade-secrets case arising from HSBC's alleged hiring of former Silicon Valley Bank (SVB) employees in 2023. The specific dispute resolved by this order concerns the scheduling of the deposition of Michael Roberts, a London-based nonparty who was CEO of defendant HSBC Bank USA in spring 2023 and now leads HSBC's global Corporate and Institutional Banking business. Roberts is described in the opinion as a central percipient witness (a witness with direct, firsthand knowledge of events). The defendants previously argued that Roberts, as HSBC Bank USA's CEO, independently decided to extend employment offers to the forty-two former SVB employees at the center of the complaint — a position that supported the earlier dismissal of HSBC Holdings plc from the case.

Roberts is a U.S. citizen who resides in London and has not been employed by any party for years. At the plaintiff's request, the defendants secured Roberts's voluntary agreement to travel to New York for a full-day deposition on September 23, 2026, which the defendants represented was the only full day Roberts could offer through January 2027. Roberts rearranged business commitments and arranged for another executive to chair a board meeting in order to make the date available.

The Scheduling Dispute

The plaintiff, First-Citizens Bank, objected to the September 23 date on two main grounds: (1) its preferred examiner, attorney John Hemann, would be on vacation abroad that day, and co-counsel was also unavailable due to serious family-medical reasons; and (2) the plaintiff preferred to depose Roberts after written discovery closes at the end of October 2026. The plaintiff proposed that the defendants provide three alternative dates between October 6, 2026, and February 28, 2027, and offered to take the deposition anywhere in the world — including Dubai or Paris, or on a weekend — after Hemann returned. The plaintiff also proposed splitting the deposition into two consecutive half-days.

The defendants responded that they had no authority to commit Roberts to dates he had not offered and asked the court to hold the deposition to September 23. The defendants also offered accommodations: a different examiner could appear in person, or Hemann could participate remotely. The plaintiff declined both. The parties conducted a court-ordered meet-and-confer by videoconference on August 31, 2026, and filed letter briefs, responses, and supplements that the court resolved without a hearing under Civil Local Rule 7-1(b).

Legal Analysis

Court Cannot Compel a Nonparty Abroad or Order Defendants to Control His Calendar

The court began with the basic procedural reality: a deposition notice alone cannot compel a nonparty to appear; compelling a nonparty's attendance requires a subpoena under Federal Rule of Civil Procedure 45. A witness who lives and works in London is beyond the court's ordinary subpoena power. Because Roberts is not employed by or under the control of the defendants, the court also could not order the defendants to "provide" alternative dates for him. The plaintiff offered no basis to counter the defendants' representation that they lacked authority to commit Roberts to dates he had not offered. An order directing defendants to produce alternative dates, the court concluded, would direct them to do something the record showed they could not do.

Plaintiff's Counter-Arguments Rejected

The court addressed and rejected each of the plaintiff's counter-considerations:

- Unavailability of preferred counsel: The court noted that unavailability of a preferred lawyer is not the same as unavailability of the witness. The plaintiff has two law firms and many lawyers on the docket; the events involving Roberts have been litigated for more than three years; the defendants agreed to allow Hemann to participate remotely; and the district's Guidelines for Professional Conduct require accommodating schedules "where possible" — an obligation the court said runs in every direction, including toward a nonparty who had already rearranged significant commitments.

- Preference to depose after written discovery: The court observed that no procedural rule sequences depositions after written discovery. Depositions were already underway, the parties had agreed that each witness's documents would be produced before that witness's deposition, and the plaintiff identified no Roberts-related document it lacked or could not obtain before September 23. The court also noted that it could allow a two-hour follow-up deposition by videoconference if the plaintiff made a particularized showing of need based on document productions after the deposition date.

- Plaintiff's worldwide flexibility: The court acknowledged the plaintiff's constructive offer but noted it foundered on the same problem: it presupposed availability that Roberts had not offered. The court also noted that splitting the deposition into two half-days would double the burden on a nonparty.

Ripeness and Schedule

The court found the dispute ripe because the volunteered date would lapse absent a ruling, meaning delay would decide the issue by default. The court also stated that if the plaintiff elects not to proceed on September 23, it may pursue Roberts's testimony through whatever process is available for a nonparty residing abroad (such as the letters-rogatory process, a formal diplomatic and legal mechanism for obtaining evidence from a witness in another country). However, the court stated it is unlikely to extend the fact-discovery deadline to accommodate a process made necessary by the plaintiff passing on an available full-day deposition.

Disposition

The court issued the following orders: