State of West Virginia ex rel. PHH Mortgage Corporation v. The Honorable David M. Hammer, Judge of the Circuit Court of Jefferson County, West Virginia, and Anthony and Heather Delsignore
CourtWest Virginia Supreme Court
Date FiledNovember 9, 2026
Docket25-671
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2026 Term FILED
November 9, 2026
_____________________
released at 3:00 p.m.
C. CASEY FORBES, CLERK
No. 25-671 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_____________________
STATE OF WEST VIRGINIA EX REL. PHH MORTGAGE CORPORATION,
Petitioner,
v.
THE HONORABLE DAVID M. HAMMER,
JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA,
AND ANTHONY AND HEATHER DELSIGNORE,
Respondents.
___________________________________________________________
PETITION FOR A WRIT OF PROHIBITION
WRIT DENIED
_________________________________________________________
Submitted: October 13, 2026
Filed: November 9, 2026
Bruce M. Jacobs, Esq. Jason E. Causey, Esq.
Nicholas P. Mooney II, Esq. Katz, Kantor, Stonestreet
Spilman Thomas & Battle, PLLC & Buckner, PLLC
Charleston, West Virginia Princeton, West Virginia
Attorneys for PHH Mortgage Corp. Attorney for the Delsignores
JUSTICE FLANIGAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A writ of prohibition is available to correct a clear legal error
resulting from a trial court’s substantial abuse of its discretion in regard to discovery
orders.” Syl. Pt. 1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d
577 (1992).
2. Pursuant to Rule 30 of the West Virginia Rules of Civil Procedure, a
witness located outside of the United States may be deposed upon notice alone if he or she
is a managing agent of a corporate party.
3. In determining whether an individual may be deposed as a managing
agent of a corporation, courts should consider the following factors: (1) the discretionary
authority vested in the person by the corporation; (2) the employee’s dependability in
following the employer’s directions; (3) whether the individual is more likely to identify
with the corporation or the adverse party in the litigation; and (4) the degree of supervisory
authority in areas pertinent to the litigation.
4. “‘The Rules of Civil Procedure generally provide for broad discovery
to ferret out evidence which is in some degree relevant to the contested issue. (footnote
omitted).’ Policarpio v. Kaufman, 183 W.Va. 258, 261, 395 S.E.2d 502, 505 (1990).” Syl.
Pt. 1, in part, Evans v. Mutual Min., 199 W. Va. 526, 485 S.E.2d 695 (1997).
i
FLANIGAN, Justice:
Petitioner, PHH Mortgage Corporation (“PHH”), invokes this Court’s
original jurisdiction, seeking a writ of prohibition to prevent enforcement of a September
11, 2025, order of the Circuit Court of Jefferson County denying its motion for a protective
order and granting a motion filed by Anthony and Heather Delsignore, defendants and
counterclaim-plaintiffs in the underlying civil action, to compel the depositions of two
PHH employees located outside of the United States. PHH argues that the circuit court
exceeded its legitimate powers and committed clear legal error in violation of the Hague
Convention on Taking Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555,
28 U.S.C.S § 1781, (“the Hague Convention”) and Rule 26(c) of the West Virginia Rules
of Civil Procedure. Having considered the parties briefs and oral arguments, the submitted
appendix record, and pertinent authorities, we find no clear error and, therefore, deny the
requested writ.
I. Facts and Procedural Background
On August 8, 2023, David W. Irvin filed a complaint in the Circuit Court of
Jefferson County seeking to evict the Delsignores from their residential property located
in Charles Town, West Virginia. Mr. Irvin purchased the property at a foreclosure sale
after the Delsignores defaulted on their mortgage. The Delsignores answered the complaint
on September 8, 2023, and at the same time, filed a counterclaim against Mr. Irvin and a
1
third-party claim against United Bank;1 PHH, their mortgage servicing company; and Pill
& Pill, PLLC,2 asserting breach of contract, tortious conduct, and violations of the West
Virginia Consumer Credit Protection Act, West Virginia Code §§ 46A-1-101 to 46A-8-
102. The Delsignores are seeking damages and to void the foreclosure sale.3
According to the Delsignores’ “Amended Counterclaim,”4 they received
notice of the foreclosure sale on April 22, 2023, which indicated that the property would
be sold on May 9, 2023. They then attempted to cure the default by submitting the required
payment as instructed by PHH. Mr. Delsignore maintains that he mailed a cashier’s check
to PHH to cure the default on May 1, 2023, and it was delivered on May 4, 2023. Mr.
Delsignore further claims that when he called PHH on May 11, 2023, to confirm receipt of
his payment, a customer service representative told him that the check had not been
received. Mr. Delsignore asserts that customer service representatives told him the same
thing—that the check was not received—during phone calls he made on May 25, 2023,
and June 2, 2023. Mr. Delsignore further contends that a customer service representative
told him to stop payment on the check during the June 2, 2023, call and that he would be
emailed wiring instructions to resubmit payment. While awaiting those instructions, his
1
United Bank financed Mr. Irvin’s purchase of the property.
2
Pill & Pill, PLLC, conducted the foreclosure sale on behalf of PHH.
3
The Delsignores only seek equitable and declaratory relief from Mr. Irvin and
United Bank. They seek all available relief from PHH and Pill & Pill, PLLC.
4
The Amended Counterclaim was filed on September 19, 2024.
2
home was sold at the foreclosure sale which had been rescheduled for June 8, 2023,
unbeknownst to him.
The record indicates that the focus of discovery has been on what happened
to the check mailed by Mr. Delsignore and what representations were made to him by PHH
in that regard. It is undisputed that Mr. Delsignore made phone calls to PHH on May 11,
2023, May 25, 2023, and June 2, 2023, inquiring about the status of the check. However,
the parties disagree as to whether the evidence shows that the check was rejected and/or
returned by PHH due to its alleged untimeliness5 or whether Mr. Delsignore was told that
the check was never received and “may be lost.” The record indicates that the phone calls
made by Mr. Delsignore were recorded and the audio recordings were produced by PHH
during discovery. PHH also made its corporate representative, Benjamin Verdooren,
available for deposition, and he was deposed on August 29, 2024.
Following Mr. Verdooren’s deposition, the Delsignores filed a “Notice of
Videotaped Rule 30(b)(1) Deposition,” seeking to depose the following individuals: (1)
the two customer service representatives who answered Mr. Designore’s June 2, 2023 call;
(2) the customer service representative who answered Mr. Designore’s May 25, 2023 call;
(3) the customer service representative who answered Mr. Designore’s May 11, 2023 call;
5
According to PHH, Mr. Delsignore was told that payment to cure the default had
to be made by April 30, 2023.
3
and (4) the three PHH employees6 who processed the May 1, 2023 check and conducted
an investigation regarding what occurred when it was received by PHH. On September
23, 2024, PHH filed a motion for a protective order requesting that the circuit court relieve
it from any obligation to produce the individuals the Delsignores were seeking to depose.
PHH argued that the information sought through this discovery request had already been
provided or was obtainable from a more convenient source. In that regard, PHH explained
that it had already produced a voluminous amount of discovery responses and documents
pursuant to discovery requests made by the Delsignores and Mr. Irvin; had made its
corporate representative available for a deposition that lasted more than six hours; and that
the individuals sought to be deposed are located in either India or the Philippines. PHH
further argued that to depose the individuals residing in India, the Delsignores were
required to follow the procedures under the Hague Convention. As for the individuals
residing in the Philippines, PHH asserted that there was no authority to compel them to
comply with the deposition request as the Philippines is not a signatory to the Hague
Convention. In response, the Delsignores filed a memorandum in opposition to PHH’s
motion and a motion to compel the depositions. The circuit court then took the matter
under advisement.
6
PHH maintains that only two employees, not three, were involved in the processing
and investigation of the status of Mr. Designore’s check.
4
On September 11, 2025, the circuit court entered its order denying PHH’s
motion for a protective order and granting the Delsignores’ motion to compel. The circuit
court found that the information sought through the depositions was relevant to the
Delsignores’ claims as asserted in their “Amended Counterclaim” and that PHH had not
met its burden of demonstrating “that depositions of its employees who are fact witnesses
to the underlying events are unduly burdensome or unfairly duplicitous.” The circuit court
ordered PHH to provide the Designores with the contact information for any of the
individuals sought to be deposed who reside in the United States so they could serve
subpoenas. As for the individuals to be deposed that reside outside of the United States,
the circuit court determined that two of them, Edgar Francisco, who is located in the
Philippines, and Gayatri Bachcha, who is located in India, are “managing agents” of PHH
because they “made the decision to reject the payment of more than $22,000 made by the
Delsignores to reinstate the loan” and “conducted and resolved the investigation into the
dispute lodged by Mr. Delsignore regarding his payment after he was told it was not
received.” The circuit court concluded that as “managing agents,” these individuals are
subject to deposition pursuant to notice and that a subpoena for their attendance is
unnecessary. So, the circuit court ordered the parties’ counsel “to meet and confirm the
identity of all such witnesses described in this Order within 10 days of entry” and to
“schedule the depositions to occur within 30 days of their conference.” The order noted
that the Delsignores had withdrawn their notice of deposition with regard to any witnesses
not covered by the court’s order—those individuals located outside of the United States
5
who were not identified as “managing agents.” Following entry of this order, PHH filed
its petition for a writ of prohibition with this Court.
II. Standard of Review
The exercise of this Court’s original jurisdiction in prohibition is limited to
circumstances “of an extraordinary nature.” State ex rel. U.S. Fid. & Guar. Co. v. Canady,
194 W. Va. 431, 436, 460 S.E.2d 677, 682 (1995) (additional quotations and citation
omitted). As this Court has long held: “Prohibition lies only to restrain inferior courts
from proceedings in causes over which they have no jurisdiction, or, in which, having
jurisdiction, they are exceeding their legitimate powers, and may not be used as a substitute
for [a petition for appeal] or certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207,
75 S.E.2d 370 (1953). Consequently, “[a] writ of prohibition is rarely granted as means to
resolve discovery disputes.” State ex rel. Arrow Concrete Co. v. Hill, 194 W. Va. 239,
244, 460 S.E.2d 54, 59 (1995). Only when clear error is apparent will a writ of prohibition
be granted with respect to a discovery matter. In that regard, syllabus point one of State
Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992) holds: “A
writ of prohibition is available to correct a clear legal error resulting from a trial court’s
substantial abuse of its discretion in regard to discovery orders.” With this standard in
mind, we consider whether to issue the requested writ.
6
III. Discussion
PHH argues that a writ of prohibition should issue to prevent enforcement of
the circuit court’s discovery order because (1) fails to require the Delsignores to comply
with the procedures set forth in the Hague Convention and (2) the discovery being sought
is unreasonably cumulative and is obtainable from other sources that are more convenient
and less burdensome. We consider each argument, in turn, below.
As set forth above, the circuit court’s order allows the Delsignores to depose
the two PHH employees who are located outside the Unites States by simply serving notice
as provided in Rule 30(b)(1) of the West Virginia Rules of Civil Procedure. The circuit
court found that these individuals are “managing agents” of PHH and as such, a subpoena
is not necessary to secure their deposition testimony because they are party witnesses.
Before this Court, PHH argues that the circuit court committed clear, contending that the
individuals the Delsignores seek to depose that reside outside of the United States are
“lower-level employees who are not invested with general powers to exercise judgement
and discretion in corporate matters” and that their depositions cannot be compelled “by
simply serving notice.” PHH maintains that the only way to secure the depositions of these
individuals is by first utilizing the procedures for obtaining foreign discovery set forth in
the Hague Convention pursuant to the syllabus of Gebr. Eickhoff Maschinenfabrik Und
7
Eisengierberei v. Starcher, 174 W. Va. 618, 328 S.E.2d 492 (1985) (“Starcher”),7 which
holds:
Although the procedures under the Multilateral
Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters, March 18, 1970, 23 U.S.T. 2555,
T.I.A.S. No. 7444 [reprinted in 28 U.S.C.A. § 1781
(Supp.1984) ] are not the exclusive means by which evidence
located abroad may be obtained by West Virginia litigants, the
principle of international comity dictates first resort to those
procedures until it appears that such attempt has proven
fruitless and that further action is necessary to prevent an
impasse.
As a preliminary matter, we note that when the present discovery dispute
arose, the complete revision of our Rules of Civil Procedure was underway but had not yet
been implemented.8 However, by the time the circuit court entered its September 11, 2025,
order, the amended rules had become effective. Rule 86 of the amended West Virginia
Rules of Civil Procedure provides that the amendments apply to “all proceedings in cases
thereafter commenced and insofar as just and practicable, all proceedings then pending.”
W. Va. R. Civ. P. 86 (eff. Jan. 1, 2025). Similarly, this Court has held:
7
In Starcher, this Court explained that in recognition of the “disparities in
methodology with respect to the gathering of evidence the Hague Evidence Convention
provides a tripartite division of procedures for securing evidence from signatory states.”
174 W. Va. at 622, 328 S.E.2d at 496 (footnotes omitted). See also In re Auto. Refinishing
Paint Antitrust Litig., 358 F.3d 288, 299 (3d Cir. 2004) (“The [Hague] Convention
prescribes certain procedures by which a judicial authority in one contracting nation may
request evidence located in another nation.”).
8
By order entered January 31, 2024, this Court adopted a complete revision of the
of the West Virginia Rules of Civil Procedure which became effective January 1, 2025.
8
When, during the pendency of a proceeding, a new
procedural rule is promulgated, or an existing procedural rule
is amended, a circuit court, in its discretion, may nevertheless
revert to the previous rule where application of the new or
amended rule would be impracticable or work injustice in that
proceeding. A circuit court should, however, make every effort
to apply the new or amended procedural rule to any matter
pending at the time the new rule becomes effective.
Syl. Pt. 4, State ex rel. Parsons v. Zakaib, 207 W. Va. 385, 532 S.E.2d 654 (2000).
The circuit court’s order does not indicate which version of Rule 30 it applied
when it ruled upon this discovery issue, but in this instance, that is of no concern. As this
Court recently observed:
Prior to January 1, 2025, Rule 30 provided in pertinent
part, “[a]fter commencement of the action, any party may take
the testimony of any person, including a party, by deposition
upon oral examination.” W. Va. R. Civ. P. 30(a) (eff. until Jan.
1, 2025). The amendment to this Rule makes no substantive
change to the operative provisions to this appeal: “[a] party
may, by oral questions, depose any persons, including a party,
without leave of the court . . . .” W. Va. R. Civ. P. 30(a) (eff.
Jan. 1, 2025). Because this Rule remains substantially the
same . . . it would not be impractical or unjust to apply the
Amended Rule here[.]
State ex rel. Sutphin v. Poling, 251 W. Va. 365, 372, 914 S.E.2d 238, 245 (2025). The
same is true with respect to the other provisions of Rule 30 that are relevant to this matter—
Rule 30(b)(1), providing for notice of a deposition in general, and Rule 30(b)(6) (Rule
30(b)(7) under the pre-2025 version of the Rules), providing that the deposition of a
corporation is obtained through the testimony of its officers, directors, managing agents,
or other designated persons who consent to testify on its behalf.
9
Turning to PHH’s argument, we begin by noting that this Court has not
previously considered whether a managing agent of a corporate party who is located
outside of the United States can be compelled to appear for a deposition on notice alone,
nor has this Court determined the standards that apply for deeming an individual a
“managing agent” of a corporation for litigation purposes. Where there is an absence of
West Virginia precedent with respect to the scope and meaning of our Rules of Civil
Procedure, we look to federal decisions for guidance. As this Court has explained:
Because the West Virginia Rules of Civil Procedure are
practically identical to the Federal Rules, we give substantial
weight to federal cases, especially those of the United States
Supreme Court, in determining the meaning and scope of our
rules. See generally Burns v. Cities Serv. Co., 158 W.Va. 1059,
217 S.E.2d 56 (1975); Aetna Casualty & Sur. Co. v. Federal
Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
Painter v. Peavy, 192 W. Va. 189, 192 n.6, 451 S.E.2d 755, 758 n.6 (1994); see also Bowers
v. Wurzburg, 202 W. Va. 43, 49 n.11, 501 S.E.2d 479, 485 n.11 (1998) (same). In this
instance, federal law is clear both with regard to the procedure for securing the testimony
of a managing agent of a corporate party who is located outside of the United States and
the standards for determining whether individuals are “managing agents” of a corporation
for the purpose of securing their deposition testimony.
“It is, of course, black letter law that only a party to a lawsuit may be deposed
pursuant to notice as opposed to subpoena.” Calderon v. Experian Info. Solutions, Inc.,
287 F.R.D. 629, 631 (D. Idaho 2012); see also Spaeth v. Warner Bros. Pictures Inc., 1 FRD
729, 730-31 (S.D.N.Y. 1941) (“It is not necessary to serve a subpoena on a party. . . . The
10
attendance of other persons can only be compelled by the use of a subpoena as provided in
Rule 45.”). Rule 30(b)(1) provides that a party may request the deposition of another party
to the litigation by serving notice. If the party to be deposed is a corporation, then the
individual who testifies on behalf of the corporation must be “an “officer, director, or
managing agent.” W. Va. R. Civ. Proc. 30(b)(6); see also In re Honda America Motor Co.,
Inc. Dealership Relations Litigation, 168 F.R.D. 535, 540 (D. Md. 1996) (“The examining
party has the power itself, however, to designate deponents who will speak for the
corporation, but only if the named individuals are ‘directors, officers, or managing
agents.’”). As this Court has explained,
At a Rule 30(b)(6) deposition, the testimony elicited
“represents the knowledge of the corporation, not of the
individual deponents. The designated witness is ‘speaking for
the corporation,’ and this testimony must be distinguished from
that of a ‘mere corporate employee’ whose deposition is not
considered that of the corporation and whose presence must be
obtained by subpoena.” [U.S. v.] Taylor, 166 F.R.D. [356] at
361 [(M.D.N.C.), aff’d 166 F.R.D. 367 (1996)] (emphasis
added).
State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 332, 484 S.E.2d 199, 215
(1997). In other words, “[i]f the person is not an ‘officer, director, or managing agent’ of
the corporation, the party seeking the discovery must proceed as though the person is an
ordinary non-party witness and obtain a subpoena to secure the attendance of the
deponent.” Calderon, 287 F.R.D. at 631.
With regard to party witnesses located outside of the United States, federal
courts have made clear that “these same rules apply.” Id. Consequently, in this case,
11
whether the individuals to be deposed are “managing agents” of PHH is critical. As the
Calderon court explained, “[i]f the witness sought to be deposed is not an officer, director,
or managing agent of a corporate opponent, the procedures of the Hague Convention or
other applicable treaty must be utilized.” Id. (additional quotations and citation omitted).
As stated by the U.S. District Court for the Southern District of West Virginia: “If the
[c]ourt deems [the witnesses] to be ‘managing agents,’ [the party seeking the deposition]
will avoid the difficulties of serving them with process and of using the Hague Convention.
They may be deemed to have authority to testify for [the corporate party].” Felman Prod.,
Inc. v. Indus. Risk Insurers, No. 3:09-CV-00481, 2010 WL 5110076, *1 (S.D. W.Va.
2010); see also U.S. v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994)
(“[A] corporate employee or agent who does not qualify as an officer, director, or managing
agent is not subject to deposition by notice . . . if the witness is overseas, the procedures of
the Hague Convention or other applicable treaty must be utilized.”).
In accordance with the foregoing authority, we now hold that pursuant to
Rule 30 of the West Virginia Rules of Civil Procedure, a witness located outside of the
United States may be deposed upon notice alone if he or she is a managing agent of a
corporate party. With this established, we now consider the standards under which a
corporate employee may be deemed a “managing agent” for the purpose of securing his
or her deposition.
12
Determining whether a corporate employee may be deposed as a “managing
agent” of a corporation generally begins with the consideration of multiple factors. The
Felman court observed that
courts are in agreement that the following factors should be
considered, on a case-by-case basis, in deciding a person’s
“managing agent” status.
[W]hether the corporation has invested
the person with discretion to exercise his
judgment, (2) whether the employee can be
depended upon to carry out the employer’s
directions, and (3) whether the individual can be
expected to identify him or herself with the
interests of the corporation as opposed to the
interests of the adverse party.
2010 WL 5110076 at *1 (additional citation omitted). Another factor that has been
considered is the “degree of supervisory authority in areas pertinent to the litigation.” E.I.
DuPont de Nemours and Co. v. Kolon Industries, 268 F.R.D. 45, 49 (E.D. Va. 2010).
While federal courts around the country have set forth the factors in slightly different
ways,9 they have consistently utilized the same general framework to “ensur[e] that an
9
See, e.g., Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 170
(S.D.N.Y. 1985) (“Several factors have been enunciated which must be examined in
determining whether a person is a ‘managing agent.’ Those are as follows: 1) whether the
individual is invested with general powers allowing him to exercise judgment and
discretion in corporate matters; 2) whether the individual can be relied upon to give
testimony, at his employer’s request, in response to the demand of the examining party; 3)
whether any person or persons are employed by the corporate employer in positions of
higher authority than the individual designated in the area regarding which information is
sought by the examination; 4) the general responsibilities of the individual ‘respecting the
matters involved in the litigation,’ Kolb v. A.H. Bull Steamship Co., 31 F.R.D. 252, 254
(E.D.N.Y.1962) (emphasis in original); and 5) whether the individual can be expected to
identify with the interests of the corporation.”).
13
organization is deposed through its proper representatives concerning the matters at issue
in the litigation.” Id. at 48.
In Kolon, one of the more recent cases on this issue, the court found that the
factors as synthesized in Honda, which was decided by a district court within the Fourth
Circuit, provided a sound analytical framework for considering an individual’s status as a
“managing agent.” Kolon, 268 F.R.D. at 48-49. We agree and, therefore, hold that in
determining whether an individual may be deposed as a managing agent of a corporation,
courts should consider the following factors: “(1) the discretionary authority vested in the
person by the corporation; (2) the employee’s dependability in following the employer’s
directions; (3) whether the individual is more likely to identify with the corporation or the
adverse party in the litigation; and (4) the degree of supervisory authority in areas pertinent
to the litigation.” Id. Notably, “[w]hichever variation of the test used, virtually all courts
and commentators agree that the question of whether a particular person is a ‘managing
agent’ is to be answered pragmatically, on an ad hoc basis, considering the facts of the
particular case.” Calderon, 287 F.R.D. at 632; see also Founding Church of Scientology
of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C. Cir. 1986) (“[B]ecause
of the vast variety of factual circumstances to which the [managing agent] concept must be
applied, the standard . . . remains a functional one to be determined largely on a case-by-
case basis.”).
14
Significantly, when there is a question as to whether the deposition should
occur for discovery purposes, as opposed to whether the corporation may be ultimately
bound by the employee’s statements, “all doubts are resolved in favor of the party seeking
the depositions.” Calderon, 287 F.R.D. at 633. Indeed, “while the burden is on the party
seeking the discovery to prove that the potential witness is a managing agent of the
corporation, this burden is a modest one . . . at least at the discovery stage.” Id. at 632-33.
As a result, some federal courts “have concluded that employees not specifically designated
as ‘managers’ may indeed qualify as ‘managing agents’ for purposes of the deposition
rules, where their duties and activities are closely linked with the events giving rise to the
lawsuit.” Id. at 633.
For example, in Sugarhill Records, an employee who negotiated certain
contracts that were the subject of the litigation was allowed to be deposed as a “managing
agent” of her corporate employer. 105 F.R.D. at 171. In resolving the status of the
employee as a “managing agent” in favor of the party seeking the deposition, the court
explained that “she is the sole employee at Motown involved and knowledgeable about the
alleged consents at issue here.” Id. The court noted that the issue of whether the witness’s
testimony could be used at trial remained to be determined, but concluded that “the doubts
should be resolved, at this stage, in Sugarhill’s favor so that discovery can at last proceed.”
Id.
15
Another court ruled that two engineers who investigated the site of an
airplane crash were “managing agents” of their corporation for purposes of providing
deposition testimony even though they “may not be ‘managing agents’ in the course of
their everyday duties for the defendant corporation.” Tomingas v. Douglas Aircraft Co.,
45 F.R.D. 94, 96-97 (S.D.N.Y. 1968). The Tomingas court explained that “[t]he term
‘managing agent’ should not be given too literal an interpretation but rather should depend
largely on whether the interests of the individual involved are identified with those of his
principal and on the nature of his ‘functions, responsibilities and authority respecting the
subject matter of the litigation.’” Id. at 96 (additional citation omitted).
In Calderon, the court was tasked with determining whether individuals who
had processed numerous requests made by the plaintiff to Experian Information Solutions,
Inc. (“Experian”), to have incorrect information removed from his credit report could be
deposed as “managing agents” of Experian. 287 F.R.D. at 631. The individuals were
located in Chile and were employed by Experian’s sister corporation. Id. The Calderon
court ultimately concluded that the depositions could go forward for discovery purposes
with the final determination as to whether the deponents could bind Experian on any
particular issue to be made at trial. Id. at 634. In so ruling, the court explained:
[T]here is at least a “close question” as to whether the
individual dispute agents are “managing agents” of Experian
for purposes of this litigation. . . . [I]t is not so much the title
or status of an individual within the corporation, but his or her
duties and responsibilities respecting the subject matter of the
litigation that is important. Even accepting Experian’s
characterization of these employees as “entry level,” the fact
16
remains that they were the individuals who were charged with
handling Plaintiff’s disputes, and they are therefore the only
people who might have information about what was actually
done, as opposed to simply what Experian’s policies and
procedures theoretically required.
Id. The same holds true in this case.
Applying our new holdings to the matter before us, we are unable to find that
the circuit court committed clear error in ruling that the Delsignores may depose Edgar
Francisco and Gayatri Bachcha as “managing agents” of PHH upon notice alone. As
previously noted, one of them made the decision to reject the payment made by Mr.
Designore to reinstate the loan while the other conducted and resolved the investigation
into what happened to that payment. Because the underlying dispute revolves around the
handling of the payment and these individuals possess the information about what occurred
because they made the decisions in that regard, the circuit court did not clearly err in
concluding that they are managing agents of PHH and, therefore, subject to deposition
upon notice alone because they are party witnesses. Accordingly, PHH’s argument that
the procedures under the Hague Convention must be utilized first has no merit.10
10
While the Hague Convention procedures do not apply here because the
depositions of Edgar Francisco and Gayatri Bachcha may be obtained by notice alone, we
observe that two years after Starcher, the Supreme Court of the United States decided
Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the S. Dist. of
Iowa, 482 U.S. 522 (1987), in which it “decline[d] to hold as a blanket matter that comity
requires resort to Hague Evidence Convention procedures without prior scrutiny in each
case of the particular facts, sovereign interests, and likelihood that resort to those
procedures will prove effective.” Id. at 544.
17
Likewise, PHH’s assertion that the circuit court should have issued a
protective order pursuant to Rule 26(c) of the West Virginia Rules of Civil Procedure11
upon a finding that the depositions of these two individuals would be unreasonably
duplicative and that the information sought could be obtained from other sources that are
more convenient and less burdensome is equally unavailing. As discussed above, the
circuit court determined that the two PHH employees to be deposed were the best witnesses
to testify as to the events that precipitated this lawsuit because they were the individuals
actually involved in the transactions. We agree.
This Court has recognized that “‘[t]he Rules of Civil Procedure generally
provide for broad discovery to ferret out evidence which is in some degree relevant to the
contested issue. (footnote omitted).’ Policarpio v. Kaufman, 183 W.Va. 258, 261, 395
S.E.2d 502, 505 (1990).” Syl. Pt. 1, in part, Evans v. Mutual Min., 199 W. Va. 526, 485
S.E.2d 695 (1997). So, “we have traditionally given the Rules a liberal construction
favoring broad discovery, because broad discovery policies are essential to the fair
disposition of both civil and criminal lawsuits.” State ex rel. W. Va. State Police v. Taylor,
201 W. Va. 554, 565 n.16, 499 S.E.2d 283, 294 n.16 (1997) (additional quotations and
citation omitted). Taking this policy into account and considering the circumstances
11
As with Rule 30, the 2025 amendment to Rule 26(c) made no substantive change.
Under both the old and new versions of Rule 26(c), a protective order may be issued to
protect a party from “annoyance, embarrassment, oppression, or undue burden or expense”
with respect to a discovery request.
18
presented, we find no clear error in the circuit court’s denial of a protective order or its
grant of the motion to compel.
IV. Conclusion
Accordingly, for the foregoing reasons, we decline to grant the requested writ
of prohibition.
Writ denied.
19