Key Points

  • The Supreme Court of Appeals of West Virginia denied PHH Mortgage Corp.'s petition for a writ of prohibition against a Jefferson County discovery order.
  • The court held that under West Virginia Rule of Civil Procedure 30, a witness outside the United States may be deposed on notice alone if the witness is a managing agent of a corporate party.
  • The court adopted a four-factor managing-agent test: discretionary authority, dependability in following the employer's directions, identification with the corporation or the adverse party, and supervisory authority in areas pertinent to the litigation.
  • The court found no clear error in the ruling that two PHH employees in India and the Philippines, who rejected the borrowers' cure payment and investigated the dispute, are managing agents, so Hague Convention procedures need not be used first.
  • The court also found no clear error in the denial of PHH's motion for a protective order arguing the depositions were cumulative after a corporate-representative deposition that lasted more than six hours.

West Virginia's highest court ruled that a couple suing their mortgage servicer over the foreclosure of their home may question two of the company's employees in India and the Philippines on simple notice, without first going through the international treaty process for gathering evidence abroad.

The Supreme Court of Appeals of West Virginia, in an opinion by Justice Flanigan filed Nov. 9, denied PHH Mortgage Corp.'s petition for a writ of prohibition. PHH had sought the writ to block a Jefferson County Circuit Court order compelling the two employees' depositions.

The court said it had never considered whether a corporate party's managing agent outside the United States could be deposed on notice alone, or set a test for who counts as a managing agent. It answered both questions. Its test weighs four factors, applied case by case. An overseas employee who qualifies as a managing agent of a corporate party can now be deposed on notice alone, without resort to the Hague Evidence Convention, a treaty that sets procedures for courts in one country to request evidence located in another.

The case began as an eviction. David W. Irvin bought Anthony and Heather Delsignore's house in Charles Town at a foreclosure sale and sued in 2023 to remove them. The Delsignores brought claims against PHH, their servicer, and others for breach of contract, tortious conduct and violations of the West Virginia Consumer Credit Protection Act. They seek damages and to void the sale.

Mr. Delsignore says he mailed PHH a cashier's check to cure the default before a scheduled May 2023 sale. He says representatives told him in three calls that the check had not arrived, and on the last call told him to stop payment and wait for wiring instructions. The house was sold June 8 at a rescheduled sale without his knowledge, he contends. According to PHH, he had been told the payment was due by April 30, 2023.

PHH produced recordings of the calls and made its corporate representative available for a deposition that lasted more than six hours. When the Delsignores noticed depositions of the employees who took the calls and handled the check, PHH sought a protective order. It argued the information was already available, that the Delsignores had to use Hague Convention procedures for witnesses in India, and that there was no authority to compel witnesses in the Philippines, which it said is not a signatory.

On Sept. 11, 2025, Judge David M. Hammer denied the protective order and granted the Delsignores' motion to compel. The judge found that Edgar Francisco in the Philippines and Gayatri Bachcha in India were PHH managing agents because, between them, they "made the decision to reject the payment of more than $22,000 made by the Delsignores to reinstate the loan" and investigated Mr. Delsignore's dispute. The Delsignores withdrew their notices for the other overseas witnesses.

Only a party can be deposed on notice; anyone else must be subpoenaed. A corporate party testifies through its officers, directors and managing agents. PHH argued that the court's 1985 decision in Gebr. Eickhoff Maschinenfabrik Und Eisengierberei v. Starcher required first resort to the Hague Convention as a matter of international comity.

Drawing on federal decisions, the court held that "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." It adopted a four-factor test from federal trial courts in Maryland and Virginia: the discretion the company gave the person, the person's dependability in following directions, whether the person is more likely to identify with the company or the adverse party, and the person's supervisory authority in areas pertinent to the litigation.

When the question is only whether a deposition may proceed, the court wrote, "all doubts are resolved in favor of the party seeking the depositions." That language came from Calderon v. Experian Information Solutions, Inc., a 2012 federal decision in Idaho that allowed a consumer to depose credit-dispute agents in Chile. The West Virginia court quoted Calderon's reasoning that "[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." The court then added, "The same holds true in this case."

PHH had described the employees as "lower-level employees who are not invested with general powers to exercise judgement and discretion in corporate matters." The court disagreed. "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," Justice Flanigan wrote. PHH's Hague argument, the court held, "has no merit."

The court also rejected PHH's argument that the depositions were unreasonably duplicative, agreeing with the trial judge that the two employees were the best witnesses because they were actually involved in the transactions. Citing its precedent, the court wrote that "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."

Lawyers for PHH included Bruce M. Jacobs of Spilman Thomas & Battle, PLLC. The Delsignores were represented by Jason E. Causey of Katz, Kantor, Stonestreet & Buckner, PLLC.

With the writ denied, the trial judge's order stands. That order directed counsel to meet within 10 days to confirm the witnesses' identities and to schedule the depositions within 30 days of that conference.