UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

Opinion No. 2010 DNH 059

HemCon, Inc.

O R D E R

Marine Polymer Technologies, Inc. moves to quash a trial

subpoena issued by HemCon, Inc. that was served on Dr. John N.

Vournakis. Marine Polymer contends that the subpoena is

defective and must be quashed because Dr. Vournakis does not live

within 100 miles of the court and that attendance at trial would

impose an undue burden on him. HemCon objects to the motion to

quash, arguing that Dr. Vournakis is subject to the subpoena

because he is an officer of Marine Polymer and because HemCon has

attempted to mitigate the burden of his appearing at trial.

Generally, the court’s subpoena power is limited to places

that are within the District of New Hampshire, outside of the

district but within 100 miles of the court, or authorized by

court order based on a federal statute. Fed. R. Civ. P.

45(b)(2). Federal Rule of Civil Procedure 45(c)(3)(a)(ii)

requires the court to quash or modify a subpoena if it would

require “a person who is neither a party nor a party’s officer to

Case 1:06-cv-00100-JD Document 276 Filed 04/05/10 Page 1 of 5
travel more than 100 miles from where that person resides, is

employed, or regularly transacts business in person . . . .” In

addition, the court must quash or modify a subpoena that

“subjects a person to undue burden.” Fed. R. Civ. P.

45(c)(3)(A)(iv).

The subpoena states that it was issued by this court and

shows that it was served on Rita Fallon, a human resources

representative, at Marine Polymer’s principle place of business,

107 Water Street, Danvers, Massachusetts. Danvers is within 100

miles of this court. Marine Polymer does not appear to argue

that the subpoena is defective under Rule 42(b)(2) or challenge

service of the subpoena. 

With respect to whether the subpoena must be quashed,

pursuant to Rule 45(c)(3)(A)(ii), Marine Polymer has established

that Dr. Vournakis is a resident of Charleston, South Carolina,

and that he is a shareholder and vice president for research and

development at Marine Polymer. Dr. Vournakis has office space at

Marine Polymer’s headquarters in Danvers, Massachusetts; works in

Danvers once a month; and works from Charleston, South Carolina

the remainder of the time. Sergio Finkielsztein, Marine

Polymer’s president and CEO, does not consider Dr. Vournakis to

be an officer, and Dr. Vournakis is not listed as an officer of

Marine Polymer in the annual report. HemCon objects to the

2

Case 1:06-cv-00100-JD Document 276 Filed 04/05/10 Page 2 of 5
motion to quash, arguing that Dr. Vournakis is an officer of

Marine Polymer because he said so during his deposition and

because Marine Polymer designated him to be deposed under Federal

Rule of Civil Procedure 30(b)(6).

Rule 45(c)(3)(A)(ii) requires the court to quash a trial

subpoena that would require the person to travel more than 100

miles from where he resides, is employed, or regularly conducts

business, unless the person is “a party’s officer.” See, e.g.,

Aristocrat Leisure Ltd. v. Deutsche Bank Trust Co. Americas, 262

F.R.D. 293, 302-04 (S.D.N.Y. 2009). HemCon contends that because

Dr. Vournakis maintains an office at Marine Polymer’s

headquarters in Danvers, he regularly conducts business there. 

In addition, an argument could be made that Dr. Vournakis is

employed in Danvers. Marine Polymer has not addressed whether

Marine Polymer’s headquarters in Danvers is the place where Dr.

Vournakis is employed or where he regularly conducts business,

for purposes of Rule 45(c)(3)(A)(ii). 

HemCon and Marine Polymer provide conflicting evidence as to

whether Dr. Vournakis is an officer of Marine Polymer, and

neither provides an analysis of what constitutes “a party’s

officer” for purposes of the rule. HemCon contends that because

Marine Polymer designated Dr. Vournakis to testify on behalf of

the corporation under Federal Rule of Civil Procedure 30(b)(6),

3

Case 1:06-cv-00100-JD Document 276 Filed 04/05/10 Page 3 of 5
Dr. Vournakis is deemed to be an officer of Marine Polymer. 

Because a witness who is designated to testify under Rule

30(b)(6) testifies on behalf of the party corporation, HemCon’s

theory is persuasive. See, e.g., Square D. Co. v. Breakers

Unlimited, Inc., 2009 WL 1702078, at *1-*2 (S.D. Ind. June 11,

2009). Marine Polymer has not addressed Dr. Vournakis’s status

as its designated Rule 30(b)(6) witness.

Marine Polymer also contends that attendance at trial would

impose an undue burden on Dr. Vournakis, which requires the court

to quash the subpoena under Rule 45(c)(3)(A)(iv), because his

wife is recovering from surgery and requires significant

assistance from him. Marine Polymer suggests that HemCon use the

videotape of Dr. Vournakis’s deposition taken in May of 2007 at

trial. In response, HemCon offers, among other things, to take a

trial deposition of Dr. Vournakis, which presumably would not

require him to be away from home for an unreasonable amount of

time. Marine Polymer has not responded to HemCon’s offer. 

On the record presented with its motion, Marine Polymer has

not shown that Dr. Vournakis is protected by Rule 45(c)(3)(A)(ii)

or that he would be unduly burdened by the alternative of a trial

deposition.

4

Case 1:06-cv-00100-JD Document 276 Filed 04/05/10 Page 4 of 5
Conclusion

For the foregoing reasons, Marine Polymer’s motion to quash

the subpoena (document no. 218) is denied, without prejudice. If

the motion is filed again, the court expects counsel to engage in

a more thorough briefing of the facts and the law.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 5, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

5

Case 1:06-cv-00100-JD Document 276 Filed 04/05/10 Page 5 of 5