Actava TV, Inc. v. Joint Stock Company "Channel One Russia Worldwide"

Background

The plaintiffs sought to compel the deposition of Olga Panfilova, whom the opinion identifies as Kartina’s Chief Legal Officer, officer, and managing agent. The plaintiffs said defendants had identified her as a witness with relevant knowledge and had initially indicated that she would serve as Kartina’s witness under Federal Rule of Civil Procedure 30(b)(6), which concerns an organization’s designated deposition witness. After Kartina designated its chief executive officer, Andreas Reich, instead, the plaintiffs noticed Panfilova’s deposition under Rule 30(b)(1).

The plaintiffs argued that Panfilova had particularly important knowledge about communications involving the defendants and other entities and that a deposition by written questions under Rule 31 would be inadequate. They offered shorter deposition sessions or postponement until Panfilova recovered. In the alternative, they asked the court to prevent defendants from calling her as a trial witness if she could not be deposed.

Defendants’ position

The defendants argued that the plaintiffs had accepted Reich as the replacement witness after being told that Panfilova was ill and could not be deposed. They also offered a Rule 31 deposition limited to written questions and proposed continuing Kartina’s organizational deposition through Reich or another witness who could answer the plaintiffs’ questions. The defendants opposed excluding Panfilova from testifying at trial and argued that a physician’s letter could be submitted to the court privately for review.

Order

Judge Kevin Nathaniel Fox did not resolve in this endorsement whether Panfilova had to give an oral deposition. Instead, the court ordered the defendants to submit promptly, for private review, an affidavit from Panfilova’s physician. The affidavit had to state the physician’s diagnosis and explain specifically why Panfilova’s condition prevented her from being deposed orally. The defendants also had to file a redacted version with the Clerk of Court.

The opinion therefore concerns a discovery dispute and an interim information-gathering order. It does not state a final ruling granting or denying the plaintiffs’ motion to compel, nor does it state a ruling on the alternative request to preclude Panfilova’s trial testimony.