1The court concludes that the September 20, 2006 order should be modified in order “to secure, the just, speedy,

and inexpensive determination of [this] action.” Fed. R. Civ. P. 1.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRO-TECH CORPORATION t/a : CIVIL ACTION 

THE PUROLITE COMPANY, et al. :

:

v. :

:

THERMAX, INC. d/b/a THERMAX :

USA LTD, et al. : NO. 05-2330

MEMORANDUM OPINION

CAROL SANDRA MOORE WELLS November 16, 2006

UNITED STATES MAGISTRATE JUDGE

The parties in this case have a dispute concerning the location where depositions of witnesses

who are employees of Thermax, Ltd., an Indian corporation, should occur. In an order dated

September 20, 2006, the court directed that the depositions of Defendants Amitabh Mukhopadhyay,

Pheroz Pudumjee and Kiran Deshpande, be conducted in India, because Mr. Deshpande, a non-party

resident of India, lives beyond this court’s subpoena power. On October 5, 2006, Plaintiffs filed a

motion for reconsideration of that order. On October 11, 2006, the Honorable Cynthia M. Rufe

referred that motion for reconsideration to the undersigned. Defendants have responded to the

motion for reconsideration and the court conducted oral argument on the motion on November 8,

2006. In a separate order filed on November 15, 2006, the court denied the motion for

reconsideration, because no portion of the September 20, 2006 order is clearly erroneous or contrary

to law, which is the governing standard. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).

However, for the reasons which follow, the court is partially vacating and modifying its September

20, 2006 order. This opinion will explain the court’s rationale for doing so.1

I. Kiran Deshpande

Kiran Deshpande, an employee of Thermax, Ltd., an Indian corporate defendant, lives and

Case 2:05-cv-02330-CMR Document 159 Filed 11/16/06 Page 1 of 7
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works in India. An officer, director or managing agent of a corporation which is party to a lawsuit

is subject to deposition on notice only, without the need for a subpoena. See e.g., 8A Charles Alan

Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, § 2107, p. 58 (2d

ed. 1994) (“Wright & Miller”). However, other employees of a corporate party must be subpoenaed

before being deposed. See Fed. R. Civ. P. 45(a)(2)(B). India is geographically beyond the subpoena

power of this court. See Fed. R. Civ. P. 45(b)(2). Moreover, if Plaintiffs could properly serve a

subpoena from this court on Mr. Deshpande in India, he, nevertheless, would be entitled to quash

said subpoena because of the distance from this court. See Fed. R. Civ. P. 45(c)(3)(A)(ii). 

At oral argument, Plaintiffs asserted that Deshpande is either a managing agent, see Fed. R.

Civ. P. 30(b)(6), or a “decision maker” with respect to Thermax, Ltd.; accordingly, he can deposed

on notice only, without the need for a subpoena. (N.T. 11/8/06 at 15, 18). However, Plaintiffs have

provided neither documentary evidence nor testimony to support this contention. Moreover, they

have provided no authority for the proposition that any corporate “decision maker” may be deposed

on notice, without a subpoena.

Based on the record currently before the court, Deshpande is not an officer or director of

Thermax, Ltd. See Defendant Thermax, Ltd.’s Opposition to Plaintiff’s Motion for Reconsideration

of and/or Objections to the September 20, 2006 Order (“Defs.’ Resp.”) at Ex. 1. Further, a Thermax,

Ltd. corporate officer has expressly averred that Deshpande is not a managing agent. Id. No

contrary documentation has been provided. Thus, a subpoena must be served on him before he can

be deposed. Since this court cannot issue a valid subpoena, Deshpande cannot be forced to travel

to the United States to be deposed.

II. Amitabh Mukhopadhyay and Pheroz Pudumjee

Thermax, Ltd. has designated Defendant Amitabh Mukhopadhyay to testify on its behalf as

Case 2:05-cv-02330-CMR Document 159 Filed 11/16/06 Page 2 of 7
2

In the September 20, 2006 order, the court circumvented the difficult question of where Thermax, Ltd.’s Fed.

R. Civ. P. 30(b)(6) designee ought to be deposed, by directing Plaintiffs to conduct his deposition and that of Pudumjee

when they were in India deposing Deshpande. See Order of September 20, 2006 at 1 n.1. Plaintiffs now indicate they

will not depose Deshpande in India; therefore, the prudential reason for avoiding the issue presented here is no longer

tenable. The court believes that, in light of these changed circumstances, the parties are entitled to have the court

exercise its discretion (rather than having the court avoid doing so) and decide the question they posited several months

ago.

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a Fed. R. Civ. P. 30(b)(6) designee. Defendant Pheroz Pudumjee is a director of Thermax, Ltd. See

Defs.’ Resp. at Ex. 1. On September 20, 2006, the court ordered that these Defendants be deposed

in India at the same time Plaintiffs traveled there to depose Deshpande. However, at oral argument,

Plaintiffs advised the court that they do not intend to travel to India to depose Deshpande. (N.T.

11/8/06 at 28). For this reason, the court believes it must decide where the depositions of

Mukhopadhyay and Pudumjee ought to take place.2

As the parties have acknowledged, the general rule is that corporations and defendants that

are employees of a corporate defendant ought to be deposed at the corporation’s principal place of

business. See e.g., Triple Crown America, Inc. v. Biosynth AG, Civ. A. No. 96-7476, 1998 WL

227886, *3 (E.D. Pa. Apr. 30, 1998); Socodis-Booch Trading, Inc. v. M/V Humboldt Rex., Civ. A.

No. 91-1474, 1992 WL 141030, *3 (E.D. Pa. June 16, 1992); Wright & Miller, § 2112, p. 81-82.

However, the rule is not inflexible and is subject to modification. Id. Depositions may be conducted

away from a corporation’s principal place of business for a number of reasons, including the need

to have the court readily available to exercise its authority to resolve discovery disputes, see Custom

Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333, 337 (N.D. Indiana 2000), or the convenience to

counsel of conducting the deposition away from the corporation’s principal place of business. See

Socodis-Booch, 1992 WL 141030, *3.

In this case, several factors justify ordering Mukhopadhyay and Pudumjee to travel to

Philadelphia for their depositions. First, an unusual and unnecessary amount of difficulty and delay

occurred in scheduling the deposition of S.S. Shastri, Thermax, Inc.’s Fed. R. Civ. P. 30(b)(6)

Case 2:05-cv-02330-CMR Document 159 Filed 11/16/06 Page 3 of 7
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designee. Once examination commenced, it proved futile because of: (1) defense counsel’s failure

to prepare Shastri for his deposition, (2) Shastri’s shocking claim that he did not understand the

meaning of common terms such as “corporate officer,” “treasurer,” “chief executive officer,”

“guessing,” “answered to,” and “today,” (3) and defense counsel’s conduct during the deposition.

These problems forebode that the depositions of Mukhopadhyay and Pudumjee will be contentious

and likely require the court’s intervention to insure that the depositions are fruitful. The court could

not effectively intervene if the depositions occur in India because of the distance and the lengthy time

difference involved. 

Second, the parties have been excessively dilatory in pursuing discovery. This case has been

pending since May 18, 2005 and Judge Rufe set a discovery deadline of January 1, 2007. Yet,

Plaintiffs have yet to complete their depositions and, if the court understood Defendants correctly

at oral argument, they have not conducted any depositions. Given the monumentally slow pace of

discovery and the parties’ insistence on litigating practically any discovery dispute of significance

rather than resolving it themselves, the court believes it is likely that, if the depositions of

Mukhopadhyay and Pudumjee were conducted in India, it would be months before they even

commenced and they might not ever be completed in India. 

Third, strong animosity between opposing counsel in this case has been palpable during

telephone conferences with the court as well as during oral argument. Regrettably, the court

concludes that these counsel require judicial supervision; hence, it would be impractical for the

depositions to occur in India. In light of these considerations, the court concludes that the

depositions of Mukhopadhyay and Pudumjee are to take place in the Federal Courthouse in

Philadelphia.

An implementing order follows.

Case 2:05-cv-02330-CMR Document 159 Filed 11/16/06 Page 4 of 7
3Counsel for all parties shall immediately confer to set the precise deposition dates and times and then advise

the court. The court was advised by defense counsel that travel to the United States was possible during this time frame.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRO-TECH CORPORATION t/a : CIVIL ACTION 

THE PUROLITE COMPANY, et al. :

:

v. :

:

THERMAX, INC. d/b/a THERMAX :

USA LTD, et al. : NO. 05-2330

ORDER

AND NOW, this 16th day of November, 2006, upon consideration of the record created

during the hearing conducted with counsel for all parties on November 8, 2006, and for the reasons

given in the attached Memorandum Opinion, it is hereby ORDERED that the court’s Order of

September 20, 2006 is VACATED in part and MODIFIED as follows: 

(1) Based on the information presently before the court, Kiran Deshpande cannot be

ordered to travel to the United States for his deposition.

(2) The depositions of the Thermax, Ltd. Fed. R. Civ. P. 30(b)(6) designee (Defendant

Amitabh Mukhopadhyay), Defendant Mukhopadhyay’s deposition in his individual capacity, and

Defendant Pheroz Pudumjee’s deposition shall be conducted in Courtroom 3F of the United States

Courthouse, 601 Market Street, Philadelphia, Pennsylvania during the weeks of January 8, 2007 and

January 15, 2007.3 

(3) Prior to conducting these depositions, Plaintiffs shall provide Defendants with the

topics for the depositions, defense counsel shall review the topics for the deposition with each

witness and each deponent shall be prepared to answer questions concerning all topics that Plaintiffs

have identified. Each deponent may supplement his answers to Plaintiffs’ questions with appropriate

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documents. Defense counsel shall also insure that each witness is aware of the meaning of common

words and phrases such as “corporate officer,” “treasurer,” “chief executive officer,” “guessing,”

“answered to,” and “today” prior to the deposition. 

(4) Pursuant to Fed. R. Civ. P. 30(b)(2), the court authorizes the deposition of Mr.

Mukhopadhyay, Thermax, Ltd.’s Fed. R. Civ. P. 30(b)(6) designee, to last no longer than two sevenhour days, for a total of fourteen hours; the depositions of Mr. Mukhopadhyay in his individual

capacity and Mr. Pudumjee may last for up to two seven-hour days each, for a total of fourteen hours

each. Any time a deponent spends posing questions to Plaintiffs’ counsel shall not be counted

against the deposition time. Upon completion of forty-two hours of deposition time, if Plaintiffs

desire additional time to depose any witness, they shall request court permission to do so, before

Messrs. Mukhopadhyay and Pudumjee leave the United States.

(5) During the deposition of each witness: (a) defense counsel shall not instruct any

witness not to answer any question put to him, except to preserve a waiveable privilege or to present

a motion under Fed. R. Civ. P. 30(d)(4); all other objections to any questions should be made on the

record along with a concise statement of the basis for the objection, see Fed. R. Civ. P. 30(d)(1); (b)

defense counsel shall not interrupt the deposition to provide advice to any witness; (c) no deponent

shall attempt to delay the deposition by asking the definition of common words or phrases and any

time spent informing the witness of the definition of common words or phrases shall not be counted

Case 2:05-cv-02330-CMR Document 159 Filed 11/16/06 Page 6 of 7
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against the allotted deposition time.

IT IS SO ORDERED.

BY THE COURT:

 /s/ Carol Sandra Moore Wells 

CAROL SANDRA MOORE WELLS

UNITED STATES MAGISTRATE JUDGE

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