McGillivray v Bank of the FSM (II) [1994] FMSC 29; 6 FSM Intrm. 486 (Pon. 1994) (5 September 1994)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1993-052

DUNCAN McGILLIVRAY,
Plaintiff,

vs.

BANK OF THE FSM et al.,
Defendants.
___________________________________

MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Hearing: July 14, 1994
Orders Entered: July 15, and August 31, 1994
Decided: September 5, 1994

APPEARANCES:

For the Plaintiff: Delson Ehmes, Esq.
P.O. Box 1018
Kolonia, Pohnpei FM 96941

For the Defendants: Douglas Parkinson, Esq.
Law Offices of R. Barrie Michelsen
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Filings
Trial courts have considerable discretion in ruling on motions for extension of filing deadlines. A court which has already extended a filing deadline does not abuse its discretion by refusing to grant successive extensions. McGillivray v. Bank of the FSM (II), [1994] FMSC 29; 6 FSM Intrm. 486, 488 (Pon. 1994).

Civil Procedure - Deposition
A defendant is entitled to examine a plaintiff in the jurisdiction where the plaintiff has chosen to file the lawsuit. A court may grant an exception to the rule requiring plaintiffs to submit to depositions in the jurisdiction where the suit is pending when a plaintiff makes a good faith application based on hardship. McGillivray v. Bank of the FSM (II), [1994] FMSC 29; 6 FSM Intrm. 486, 488 (Pon. 1994).

Civil Procedure - Discovery
A trial judge has considerable discretion on the question of relevancy of discovery materials and his order should not be disturbed unless there has been an abuse of discretion or unless the action taken is improvident and affects the substantial rights of the parties. McGillivray v. Bank of the FSM (II), [1994] FMSC 29; 6 FSM Intrm. 486, 489 (Pon. 1994).

Civil Procedure - Discovery
Under FSM Civil Rule 26 evidence may be discovered even if it would inadmissible on relevancy grounds at trial, as long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence. However, the discovery of material to be used for impeachment purposes is generally not permissible unless the impeaching material is also relevant or material to the issues in the case. McGillivray v. Bank of the FSM (II), [1994] FMSC 29; 6 FSM Intrm. 486, 490 (Pon. 1994).

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COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:

On July 15, 1994, the Court issued a discovery order granting the plaintiff a 45-day extension (until August 29, 1994) of the previously ordered deadline for submitting to a deposition and directing that the plaintiff submit to the deposition in Pohnpei, unless the defendants agreed to depose him elsewhere. The order also granted the defendants' motion to compel answers to five interrogatories and denied it with respect to three others. Under the order the answers had to be filed within 20 days (by August 4, 1994). On August 29th the plaintiff filed a motion asking that the deposition be delayed until October and that the venue of the deposition be changed. A second discovery motion was filed the same day asking that the plaintiff be granted additional time to respond to the interrogatories he was ordered to answer under the July 15th order and that a protective order be issued regarding the use of one of the answers. An order was issued denying both motions in their entirety on August 31, 1994. This decision explains the basis for the Court's July 15th and August 31st orders.

DISCUSSION

1. Deposition

On July 8, 1993, the plaintiff, Duncan McGillivray, filed this case seeking over three million dollars in damages relating to the termination of his employment with the Bank of the Federated States of Micronesia. Since that time the defendants have tried repeatedly to depose McGillivray, both in the FSM and in the United States, where McGillivray now resides. For more than a year McGillivray has refused to submit to a deposition, using a series of inconsistent excuses. In July and August of 1993, the defendants offered to depose McGillivray in California so that he could avoid the expense of traveling to Pohnpei, but counsel for McGillivray stated that he would prefer to have the deposition in Pohnpei, and that McGillivray would come for it. See Aff. Douglas Parkinson paras. 5-14 (attachment to Response to Pl.'s Motion For Protective Order and Pl.'s Motion for Enlargement of Time (Feb. 4, 1994)). McGillivray represented that he had found full-time, "high-profile" employment with a Fortune 500 corporation and that his family was extremely wealthy, thus indicating that the expense of a trip to Pohnpei would not be a problem for him. Id. paras. 3-5. When the defendants attempted to arrange a deposition in Pohnpei in November, McGillivray asked them to postpone it. In late November, McGillivray agreed to be deposed on condition that the deposition be postponed again, until after January 15, 1994. When January came, and the defendants noticed McGillivray's deposition again, McGillivray moved for a protective order against being deposed at all, arguing that he could not afford to be deposed because he had been without gainful employment for 8 months. Memorandum In Support Of Motion For Protective Order (Jan. 27, 1994).

On May 16, 1994, the Court denied the plaintiff's motion for a protective order, and directed the plaintiff to submit to an oral deposition within 60 days, noting that McGillivray's complaints about the cost of coming to Pohnpei were unpersuasive in light of his earlier refusal to be deposed when defendants' counsel was in the United States. On June 16, 1994, the plaintiff again asked for a protective order against being deposed, and in the alternative asked that the deposition be delayed and held in the United States. The basis for the request was that McGillivray was unable to afford the trip. On July 15, 1994, the Court granted the plaintiff's motion to the extent that it allowed the plaintiff an additional 45 days to submit to a deposition, but denied the plaintiff's request that the deposition be held in the United States. The defendants noticed a deposition for August 29, 1994, the last day before expiration of the extended deadline, thus giving the plaintiff as much time as possible to arrange to appear, or seek rescheduling. On August 29th, the plaintiff filed his motion asking for an enlargement of time and change of venue of the deposition. This time he did not claim he could not afford the trip to Pohnpei, but rather complained that he was willing to pay to bring the defendants' counsel to the United States for the deposition, but that the defendants had refused his offer. He did not explain how he could afford to bring the defendants' counsel to the United States from Pohnpei, when he claimed to be unable to afford to come from the United States to Pohnpei himself. The motion was denied on August 31st.

Trial courts have considerable discretion in ruling on motions for extension of filing deadlines. Mendez v. Banco, [1990] USCA11 74; 900 F.2d 4, 6 (1st Cir. 1990); Taumby v. United States, [1990] USCA8 577; 902 F.2d 1362, 1367 (8th Cir. 1990). A court which has already extended a filing deadline does not abuse its discretion by refusing to grant successive extensions. Mendez, 900 F.2d at 6-7.^[1] Regarding the locale of depositions, United States courts have held that a defendant is entitled to examine a plaintiff in the jurisdiction where the plaintiff has chosen to file the lawsuit. 23 Am. Jur. 2d Depositions and Discovery § 19, at 351 (1983). The Court may grant an exception to the rule requiring plaintiffs to submit to depositions in the jurisdiction where the suit is pending when a plaintiff makes a good faith application based on hardship. Id. at 352.

The Court concludes that McGillivray's claim of hardship is not made in good faith. McGillivray has been given every opportunity to meet his responsibility to cooperate in discovery by submitting to a deposition. The undisputed evidence shows that he has offered inconsistent explanations for his continued failure to submit to a deposition. Sometimes he says that he can afford airfare between Pohnpei and the United States (either for himself or for defendants' counsel) and other times that he cannot. Sometimes he says he has a high-profile job with a Fortune 500 company, and other times that he has obtained no gainful employment at all. Sometimes he says he will come to Pohnpei to be deposed, and other times he cannot afford to be deposed at all. He requests postponement after postponement. His own counsel admits that he has been unable to contact McGillivray about this litigation for weeks at a time. See Affidavit Accompanying Motion to Enlarge Time paras. 4-6 (Aug. 29, 1994). The Court has given McGillivray the benefit of every doubt, but it is time to draw the line. Therefore, the plaintiff's motion to enlarge time and change the venue of the deposition is denied.

2. Interrogatories

The defendants have been trying to obtain answers to interrogatories since early in the litigation. On June 8, 1994, the plaintiff, under court order, filed answers to some of those interrogatories, but objected to others. The defendants moved for an order compelling answers to eight interrogatories, and on July 14, 1994, a hearing was held. The Court directed the plaintiff to respond to interrogatories 18, 19, 27, 28, and 29 within 20 days.

A trial judge has considerable discretion on the question of relevancy of discovery materials and his order should not be disturbed unless there has been an abuse of discretion or unless the action taken is improvident and affects the substantial rights of the parties. In re Surety Ass'n of Am.[1967] USCA2 715; , 388 F.2d 412, 414 (2d Cir. 1967). Interrogatories 18 and 19 both request information regarding the plaintiff's new employer. Interrogatory 18 asks the plaintiff to "describe and identify your new employer(s)." Interrogatory 19 asks the plaintiff to "produce any written documentation which demonstrates proof of hire and present employment with your new employer(s)." The plaintiff originally objected to these interrogatories on the basis of relevancy. Under FSM Civil Rule 26 evidence may be discovered even if it would inadmissible on relevancy grounds at trial, as long as "the information sought appears reasonably calculated to lead to the discovery of admissible evidence." In this case information regarding the plaintiffs' employment since being terminated by the Bank is, at a minimum, relevant to a determination about the extent to which the plaintiff has been injured, in terms of lost salary or otherwise, by the defendants' actions. Therefore, on July 15, 1994, McGillivray was ordered to answer these interrogatories.

McGillivray now claims that if he is forced to answer interrogatory 18, the Court should issue a protective order prohibiting the defendants from contacting the employer listed in the answer. According to the plaintiff "[t]here will be no reason for contacting the plaintiff's employer except for oppression and annoyance." However, important purposes for such contact would be to verify the information provided, and to determine how long the plaintiff has been working for the employer and how much he has earned. Therefore, the Court refuses to issue the requested protective order.

McGillivray's August 29th motion also requested an enlargement of time to answer interrogatory 18, as well as the other interrogatories that the Court had ordered him to answer by August 4th. McGillivray did not file this motion until well after the deadline for responding to the interrogatories had passed. In addition, this is the third deadline that has passed without the plaintiff answering the questions. The motion did not offer an explanation for McGillivray's failure to file answers, or at least further objections or motions for protective orders, prior to expiration of the deadline imposed by the Court's order. Because McGillivray gives no reason why he could not comply with the Court's order to answer the interrogatories by August 4th, his motion for an extension of time is denied.

In its July 15th order the Court refused to compel answers to interrogatories 20 and 21. Interrogatories 20 and 21 reference the plaintiff's statement in a letter that he knows of ethical violations by the defendants' counsel, Barrie Michelsen, and asks for information regarding that allegation. The plaintiff objected to answering those questions on the basis of relevancy. According to the defendants' motion this information is "relevant to the honesty and credibility [of the Plaintiff], which are areas directly connected to whether it is true that Plaintiff made misrepresentations to the Bank which led to his termination of employment." See Defs.' Motion to Compel Specific Answers paras. 4, 5.

The Court concluded that interrogatories 20 and 21 were not calculated to lead to the discovery of admissible evidence, and were therefore outside the scope of discovery. See FSM Civ. R. 26. It is not enough to say, as the defendants do, that the answers may be used for impeachment purposes, since the discovery of material to be used for impeachment purposes is generally not permissible unless the impeaching material is also relevant or material to the issues in the case. 23 Am. Jur. 2d Depositions and Discovery § 45 ). Interrogatories 20 an20 and 21 ask for information regarding McGillivray's allegations about the defendants' counsel, but those allegations were made after Mivray was terminated and after this suit was filed. Therefoerefore, those statements could not possibly have been part of the defendants' decision to terminate the plaintiff. Moreover, the interrogatories relate to a matter that is not an issue in this case - possible prior misconduct by the defendants' counsel. The letter containing the allegations was not signed under oath, and the plaintiff did not submit the letter to the Court, or ever repeat the allegations in the letter in any document filed in court. For these reasons, the Court concluded that interrogatories 20 and 21 were not reasonably calculated to lead to the discovery of relevant evidence, and were not discoverable for impeachment purposes. Therefore, the motion to compel was denied with respect to those interrogatories.

The Court also declined to compel the plaintiff to answer interrogatory 34 insofar as that interrogatory asked that the plaintiff "admit to the genuiness of documents," but did not attach those documents. The denial of the motion to compel an answer to interrogatory 34 was without prejudice to any request that the defendants may wish to make for the production of the documents referred to in that interrogatory.

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^[1] The parties did not cite any FSM cases addressing the issues raised by the motions that are the subject of this decision, and the Court's own research did not reveal any FSM precedent on point. Therefore, it is appropriate for this Court to look to decisions by United States courts interpreting similar discovery provisions. Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984).