Grain D'or LLC v. Wizman

Background

Defendant Inbar Wizman moved under Federal Rule of Civil Procedure 37(d)(1) to compel Plaintiff Grain D’Or LLC to produce Eudes De Crecy for a deposition and to provide Herbert Koch’s address so that Wizman could serve Koch with a subpoena. The dispute arose in a case concerning agreements under which Grain D’Or LLC managed Wizman’s professional career and received specified rights and payments. Grain D’Or LLC alleges that Wizman breached those agreements. Wizman asserts defenses and a counterclaim alleging, among other things, that De Crecy made false representations about his abilities and promised to marry her.

De Crecy’s Deposition

A corporation’s officer, director, or managing agent may be required to appear for a deposition through notice rather than by subpoena. The court explained that “managing agent” is a functional, fact-specific status. It may apply even when a person does not formally hold that title, and a former officer or agent may still qualify. The party seeking the deposition must present enough evidence to show at least a close question about the person’s status.

The court found that Wizman met that modest burden. The record indicated that De Crecy had been Grain D’Or LLC’s manager until at least July or September 2021 and had authority to manage its business and affairs. The court questioned whether his purported resignation and replacement by Ziad Ghanimi were effective or meaningful. It also noted evidence that De Crecy continued to manage or control Table Rock IP, LLC, which remained Grain D’Or LLC’s largest single shareholder, and that De Crecy had signed documents concerning Table Rock and ownership interests in Grain D’Or LLC.

The court further found that Ghanimi acknowledged having no knowledge of the case’s underlying facts and being appointed primarily to manage the litigation. The court concluded that De Crecy had the relevant knowledge, practical control, and financial and personal interests aligned with Grain D’Or LLC. It also found evidence suggesting that the changes in management may have been arranged to affect the litigation and prevent discovery concerning Wizman’s defenses.

Koch’s Address

The court concluded that Koch was not Grain D’Or LLC’s managing agent. The evidence indicated that Koch was an attorney who was not employed by Grain D’Or LLC and had been engaged for particular matters, including drafting some of the agreements. Wizman therefore could not obtain Koch’s testimony through a deposition notice. She could seek his full address from Grain D’Or LLC through a discovery request and then serve Koch with a subpoena. The court reserved any dispute about privilege for a later time if one arose.

Disposition

The court granted Wizman’s motion. Grain D’Or LLC was directed to produce De Crecy for deposition and respond to a discovery request for Koch’s full address. The court also found Grain D’Or LLC’s motion for a protective order moot because the court had granted the motion to compel and had not ordered production of the disputed documents through a separate document request. The clerk was directed to close Docket Nos. 24 and 31.