Federated States of Micronesia v Skico Ltd (IV) [1996] FMSC 33; 7 FSM Intrm. 628 (Chk. 1996) (8 November 1996)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Federated States of Micronesia v Skico Ltd (IV), [1996] FMSC 33; 7 FSM Intrm. 628 (Chk. 1996)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SKICO LIMITED and CHUUK MULTI-
PURPOSE STORAGE COMPANY,
Defendants.

__________________________________________

CIVIL ACTION NO. 1995-1012

ORDER

Richard H. Benson
Associate Justice

Decided: October 22, 1996
Entered: November 8, 1996

APPEARANCES:

For the Plaintiff:
Teresa K. Zintgraff, Esq.
Assistant Attorney General
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (Skico):
Ron Moroni, Esq.
P.O. Box 1618
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure - Deposition
The deposition of a corporation generally must be held where its corporate offices are. FSM v. Skico, Ltd. (IV), [1996] FMSC 33; 7 FSM Intrm. 628, 629 (Chk. 1996).

Civil Procedure - Deposition
Objection to the qualification of the officer before whom the deposition is taken is waived unless made beforehand, or as soon thereafter as possible. FSM v. Skico, Ltd. (IV), [1996] FMSC 33; 7 FSM Intrm. 628, 630 (Chk. 1996).

Evidence - Hearsay
Out of court admissions by a party-opponent are not hearsay statements. FSM v. Skico, Ltd. (IV), [1996] FMSC 33; 7 FSM Intrm. 628, 630 (Chk. 1996).

Civil Procedure - Deposition
If objections in manner of taking deposition are not made so that they may be promptly cured, the objection is waived. FSM v. Skico, Ltd. (IV), [1996] FMSC 33; 7 FSM Intrm. 628, 630 (Chk. 1996).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On October 22, 1996, during the trial of this cause, defendant Skico Ltd. objected to the introduction of the deposition testimony of Eun Choel Hwang. I overruled the objection, gave my reasons briefly, and stated that a written order would follow. I now explain my reasoning more fully and enter my order in writing.

Skico objected on two grounds. The first was that the deposition was inadmissible because it was not taken in compliance with the provisions of Rule of Civil Procedure 28. For this proposition Skico relies on my earlier ruling in this case that the telephonic deposition of Captain Edy Wahyono was inadmissible because it was not taken in front of an officer in Singapore authorized to identify the deponent and administer oaths. At both depositions the oath was administered over the telephone to a deponent in a foreign country by a court reporter in Pohnpei, who was authorized to administer oaths in the FSM. The second ground was that the interpreters at the deposition had not been properly qualified under FSM Rule of Evidence 604.

The government originally noticed a deposition on Pohnpei of Skico's corporate representative. Skico notified the government that no one would be made available for deposition in the FSM. The government then tried to depose a Skico representative in Singapore, but none was available. Skico indicated its willingness to be deposed at its offices in either Hong Kong or Korea. It also indicated its willingness to consider a telephonic deposition if that deposition were limited to two hours. The government then moved for an order to compel Skico to submit to a deposition in either the FSM or Singapore. Its third alternative was a telephonic deposition. Skico moved for a protective order.

On March 27, 1996, at oral argument on the motions, Skico repeated its alternative offer of a telephonic deposition with a two-hour time limit. After hearing and considering the parties' arguments, I denied the government's motion to compel and granted Skico's motion for a protective order from the bench. I further noted that the government could still notice the deposition for Hong Kong or Seoul, Korea if it so chose. The deposition of a corporation generally must be held where its corporate offices are. 8A Charles A. Wright et al., Federal Practice and Procedure § 2112 (1994). I did grhe alte alternative suggested by both parties - a telephonic deposition - but without the time limit sought by Skico. That verbal order was entered in writing on April 4, 1996.

Mr.g's deposition differs from from Captain Wahyono's in several important respects. Skico consented to a telephonic deposition taken in Seoul, Korea, although it wanted its length limited. Mr. Hwang was the officer designated by Skico as its corporate representative for the purposes of the Rule 30(b)(6) deposition. Mr. Hwang is therefore a party-deponent, while Captain Wahyono was not. All counsel were present on Pohnpei for Captain Wahyono's deposition. Skico's trial counsel was present with Mr. Hwang in Seoul, Korea, during his telephonic deposition. At no point during Mr. Hwang's lengthy deposition did Skico's counsel object to the arrangement, or indicate that there were irregularities in the manner of taking of the deposition. Objection to the qualification of the officer before whom the deposition is taken is waived unless made beforehand, or as soon thereafter as possible. FSM Civ. R. 32(d)(2). This was done fpt Captain Wahyono's deposition by means of Skico's prompt motion in limine. Skico did not object to Mr. Hwang's deposition until trial. I therefore concluded that Skico had waived its objection. Furthermore, even if the objection were not waived, most of Mr. Hwang's statements in the transcript which the government had read into the trial record may still have been admissible. Out of court admissions by a party-opponent are not hearsay statements. FSM Evid. R. 801(d)(2).

FSM Rule of Evidence 604 requires that interpreters must be qualified as experts pursuant to the rules of evidence and must be administered an oath that they will make a true translation. Apparently this was not done for any of the interpreters at the deposition. No party objected at that time. If they had, these defects might have been promptly cured. Therefore, I conclude that this objection was also waived. FSM Civ. R. 32(d)(3)(B). ther note that that two of the translators, Mr. Kim and Mr. Lee, were provided by Skico, and that the deponent, Mr. Hwang, himself responded in English to many of the questions.

Acngly, I overruled Skico's oo's objection on both of the grounds offered.