FSM SUPREME COURT TRIAL DIVISION

Cite as FSM Dev. Bank v. Salomon, 21 FSM R. 327 (Pon. 2017)

[21 FSM R. 327]

CIVIL ACTION NO. 2014-021
Consolidated with
Civil Action No. 2014-023

Decided: July 31, 2017

APPEARANCES:

HEADNOTES

Evidence – Witnesses

An FSM court may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of an FSM national who is in a foreign country if it is necessary in the interest of justice and if it is not possible to obtain that evidence otherwise. FSM Dev. Bank v. Salomon, 21 FSM R. 327, 329 (Pon. 2017).

Civil Procedure – Depositions; Evidence – Witnesses

The FSM Supreme Court may issue a subpoena directed to an FSM citizen, who is present in a foreign country, to appear to testify at a deposition, as well as to appear and testify at a trial or hearing. FSM Dev. Bank v. Salomon, 21 FSM R. 327, 329 (Pon. 2017).

Civil Procedure

Although the court must first look to FSM sources of law rather than begin with a review of other courts' cases, when an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. FSM Dev. Bank v. Salomon, 21 FSM R. 327, 329 n.1 (Pon. 2017).

Civil Procedure – Depositions

The court may limit a deposition to two full days of deposition testimony when that should be enough for parties to make exhaustive discovery and elicit any needed information without unduly burdening the party-deponent. But if, after that time is finished, the parties deposing the witness feel that there are important areas about which they have not yet been able to examine the witness, they may apply to the court for more deposition time, stating specifically what further questions they need to ask, why the deponent is the best or only source of that information, and how much longer they expect the deposition to last. FSM Dev. Bank v. Salomon, 21 FSM R. 327, 330 (Pon. 2017).

COURT'S OPINION

READY E. JOHNNY, Associate Justice:

Two deposition discovery disputes are currently before the court. The court resolves those disputes in the manner described below.

I. JACKEY SALOMON'S DEPOSITION

After review of the relevant filings, the court concludes that the FSM Development Bank should be able to depose Jackey Salomon in the manner in which the FSM Development proposes. Jackey Salomon is an FSM citizen who is a son of defendants and counterclaimants Berysin Salomon and Nancy Salomon. He is a resident of Majuro, Marshall Islands. The court has already determined that the FSM Development Bank is entitled to depose him because he developed or prepared much of the factual basis and much of the reasoning on which the Salomons base their defenses and counterclaims. As such, an understanding of Jackey Salomon's development of the Salomons' position is crucial to the Salomons' defenses and counterclaims and to any response to the Salomons' defenses and counterclaims.

The bank asks that the court issue a subpoena for Jackey Salomon's attendance at a deposition on Pohnpei for which the bank is prepared to pay his travel costs. Generally, the court's writ or order or subpoena cannot be enforced beyond the jurisdiction of the Federated States of Micronesia. However, Jackey Salomon is an FSM citizen and as such is an FSM national, FSM Const. art. III, §§ 1, 2, and

A court of the Federated States of Micronesia may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the Federated States of Micronesia who is in a foreign country, or requiring the production of a specified document or other thing by the person, if the court finds that particular testimony or the production of the document or other thing by the person is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain the testimony in admissible form without a personal appearance or to obtain the production of the document or other thing in any other manner.

FSM Civ. R. 45(e)(2)(A). It is apparent that the evidence that Jackey Salomon may produce (testimony and documents) is necessary in the interest of justice and that it is not possible to obtain that evidence otherwise.

The court now turns to whether it may issue such a subpoena for a deposition. The rule authorizes an FSM court to issue "a subpoena requiring the appearance as a witness before it, or before a person or body designated by it." It is clear that the court may issue such a subpoena for a trial or hearing before the court. The text's wording does not clearly state that a discovery deposition qualifies.

The rule does, however, authorize a subpoena's issuance for an FSM citizen's appearance "before a person or body designated by [the court]." Thus, the rule does permit the court to issue a subpoena directed to an FSM citizen, who is present in a foreign country, to appear to testify at a deposition, as well as to appear and testify at a trial or hearing. And United States courts that have considered the point and that have interpreted a U.S. counterpart to FSM Rule 45(e)(2)(A)¹ as allowing them to issue a subpoena to a U.S. citizen in a foreign country. See, e.g., In re Boehringer Ingelheim Pharmaceuticals, Inc., 745 F.3d 216, 218 (7th Cir. 2014); Moriah v. Bank of China Ltd., 107 F. Supp. 3d 272, 274 n.1 (S.D.N.Y. 2015); Balk v. New York Inst. of Tech., 974 F. Supp. 2d 147, 155-61 (E.D.N.Y. 2013); Estate of Ungar v. Palestinian Auth., 412 F. Supp. 2d 328, 332-35 (S.D.N.Y. 2006); Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 522-24 (D. Colo. 2003); Securities Exch. Comm'n v. Banc de Binary, 2014 WL 1030862, at 9 & n.14 (D. Nev. 2015).

Accordingly, the court will authorize the issuance of a subpoena, directed to Jackey Salomon, to appear before a court-designated person, the court clerk, to be deposed by the parties. That deposition should occur by September 1, 2017.

II. ANA MENDIOLA'S DEPOSITION

The bank also seeks to limit the deposition of its president, Ana Mendiola, who has already undergone one full day being deposed by the Salomons. The bank seeks to limit her continued deposition to no more than one day of seven hours of further testimony. The bank contends that the Salomons' deposition questioning of Mendiola has been repetitive and burdensome. It wants to continue Mendiola's renewed deposition to sometime after the transcript of the first day's testimony has been prepared, which had not been finished by June 13, 2017, or by the June 15, 2017 date set for the deposition's resumption.

The Salomons assert that Mendiola's deposition should not be, or have been, continued, that they appeared on her next scheduled deposition day, and that deponent Mendiola did not appear then. They ask that her deposition be ordered to continue day to day until completed.

The court feels that two full days of deposition should be enough for the Salomons to make exhaustive discovery and elicit any needed information without unduly burdening party-deponent Mendiola. Therefore the court will grant the bank's request to permit one further full day of seven hours deposition time (or however many days are needed to make that seven hours if the deposition is resumed late in the day) within which to conclude Mendiola's deposition. FSM Civ. R. 26(c); see also Elymore v. Walter, 9 FSM R. 251, 254 (Pon. 1999) (court may make such orders as justice requires to protect a party from undue burden with respect to discovery sought from that party). However, if after those seven hours are finished, the Salomons feel that there are important areas about which they have not yet been able to examine the witness, they may apply to the court for more deposition time, stating specifically what further questions they need to ask, why the deponent is the best or only source of that information, and how much longer they expect the deposition to last.

Accordingly, the Mendiola deposition will, under the terms recited above, resume and be finished by September 1, 2017.

III. CONCLUSION

NOW THEREFORE IT IS HEREBY ORDERED that the Jackey Salomon and Ana Mendiola depositions shall, as outlined above, be completed no later than September 1, 2017.

Footnotes:

¹ FSM Civil Procedure Rule 45(e)(2)(A) is the FSM counterpart of, and appears to be drawn from, 28 U.S.C. § 1783. Although the court must first look to FSM sources of law rather than begin with a review of other courts' cases, Alaphonso v. FSM, 1 FSM R. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM procedural rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Berman v. College of Micronesia-FSM, 15 FSM R. 582, 589 n.1 (App. 2008); Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., 9 FSM R. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., 6 FSM R. 440, 444 (App. 1994). Civil Procedure Rule 45(e)(2)(A) has never been interpreted by an FSM court.