d'Amico Dry d.a.c. v. Nikka Finance, Inc.

Filing 140

ORDER denying 123 Motion for Protective Order and d'Amico is authorized to videotape Paul Coronis' deposition on 10/24/2018 as set out. Signed by Magistrate Judge P. Bradley Murray on 10/19/2018. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
d’AMICO DRY d.a.c., f/k/a d’Amico Dry :
Limited,
:
Plaintiff,
:
vs.
:
NIKKA FINANCE, INC., as owner of the
M/V SEA GLASS II,
:

CA 18-0284-KD-MU
IN ADMIRALTY

Defendant.
ORDER
This cause is before the undersigned on Defendant’s motion for protective order
(Doc. 123) and Plaintiff’s response (Doc. 134).1 This order DENYING Defendant’s
motion for protective order is entered pursuant to 28 U.S.C. § 636(b)(1)(A) and General
Local Rule 72(a)(2)(S).2
FACTUAL BACKGROUND
This admiralty action has been pending in this Court since June 22, 2018, based
upon d’Amico’s verified complaint against Defendant Nikka and the within Rule B

1

Nikka was extended the opportunity to file a reply by October 16, 2018 (Doc.
130) but did not do so (compare id. with Docket Sheet).
2

Although the undersigned is denying the motion for protective order and allowing
Paul Coronis’ deposition to be videotaped in London, England on October 24, 2018, in
recognition of the privacy interests Mr. Coronis has identified the undersigned is specifically
ORDERING that the video recording component of Mr. Coronis’ deposition can only be used in
these civil proceedings in this Court and is NOT to be publically disclosed or used in any other
investigation or litigation.

attachment of the M/V SEA GLASS II (compare Doc. 1 with Doc. 76), the vessel being
arrested in the jurisdiction of this Court that same day (see Doc. 10). This Court has
recognized that “[t]he crux of the dispute between d’Amico and Defendant Nikka . . . is
whether d’Amico can collect against Nikka, under an alter ego theory, on the
$1,766,278.54 foreign judgment entered in favor of d’Amico and against Primera
[Maritime (Hellas) Limited].” (Doc. 40, at 1-2 (footnotes omitted)).3
The Court entered its Expedited Rule 16(b) Scheduling Order on July 6, 2018
(Doc. 46) and since that time the undersigned has been presented with and attempted
to resolve numerous discovery disputes between d’Amico and Nikka through informal
discovery conferences (compare id. at 5-6 (informing the parties that before the filing of
any formal written motions, the undersigned should be utilized as a resource to facilitate
the resolution of discovery disputes) with, e.g., Docs. 89, 93, 107, 112-13, 116, 124 &
128 (orders referencing the Court’s informal conferencing requirement, etc.)). Indeed,
as relates to the instant motion for protective order, whereby Nikka seeks to protect

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As a bit of additional background, d’Amico previously sued Primera for breach of
a September 2, 2008 Forward Freight Agreement (“FFA”) and, on June 9, 2009, Plaintiff
obtained a final judgment issued by England’s High Court of Justice in the amount of
$1,766,278.54. (Compare id. with Doc. 1, at 1 & Doc. 76, at 1.) Thereafter, on September 11,
2009, d’Amico sued Primera in the Southern District of New York to enforce the foreign
judgment (see, e.g., Doc. 76, at 2), an action which remains pending today after numerous
proceedings, including two appeals. (See id.)
The within Rule B attachment is intended to provide indisputable personal
jurisdiction over the defendant and security for d’Amico Dry’s maritime claim
pending in New York. If the New York Court determines that no personal
jurisdiction exists over the defendant, then the plaintiff respectfully prays that this
Court hear and determine that Nikka is the alter ego of Primera and thereby
liable to d’Amico for its judgment against Primera which today has a value of
$3,758.580.22, plus any further interest and counsel fees that accrue.
(Id. at 3.)

2

Paul Coronis—its 30(b)(6) representative and records custodian—from a videotaped
deposition (see Doc. 123), this motion is the culmination of several discovery impasses
in this case related to this deposition (compare id. with Docs. 107 & 112-13). In the
context of considering and granting Plaintiff’s motion to amend scheduling order (Doc.
98), the undersigned parenthetically “made clear that Nikka would be required to tender
a representative for its 30(b)(6) deposition[.]” (Doc. 107, at 2 n.1; see also id. (noting
that “Nikka’s counsel communicated with Paul Coronis during a break in the hearing
regarding his availability for deposition . . . prior to the new close of discovery on
October 5, 2018.”)).4 And, later, when the parties began sparring over the date on which
Paul Coronis’ deposition was to be taken and the length of the deposition (see Doc.
112), the undersigned urged the parties to reach agreement on the date of the
deposition but, barring agreement, ordered that it occur prior to the close of discovery
on October 5, 2018 in Piraeus, Greece, and be limited “to a maximum of 9 hours in a
single day, excluding time attributable to objections and breaks.” (Doc. 113.) The parties
did ultimately agree to take Mr. Coronis’ deposition outside the discovery deadline, on
October 24, 2018, in London, England, which leads to the present dispute (see Doc.
123).
On October 4, 2018, Nikka filed its present motion, seeking a Rule 26(c)
protective order prohibiting d’Amico from videotaping Mr. Coronis’ deposition on three
bases: (1) d’Amico failed to notify Mr. Coronis properly that this deposition would be
videotaped; (2) the only purpose of a videotaped deposition is to harass, embarrass,

4

The parties ultimately agreed that Paul Coronis would be Nikka’s corporate
representative and its records deponent. (Doc. 112, at 1).

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and intimidate Mr. Coronis; and (3) Mr. Coronis does not consent to, nor will he sign a
release allowing, the videotaping of his deposition, as violative of his rights to privacy
under the Data Protection Act and EU Data Protection Regulations 2018 and the
European Convention on Human Rights and the Human Rights Act. (See Doc. 123).
Therein, Nikka has set forth the contents of the 30(b)(6) deposition notice it received
sometime in August of 2018 (id. at 4)5 and argues that this notice violates the
requirements of Fed.R.Civ.P. 30(b)(3)(A) (see id. at 3-4). In addition, it is Nikka’s
position that because Mr. Coronis gave a two-day deposition in the New York action—a
deposition that was not videotaped—and, later, extensive testimony during a four-day
bench trial, testimony deemed credible (over that of d’Amico’s witness Luciano Bonaso),
“[t]he only apparent reason for d’Amico’s insistence on videotaping Mr. Coronis’s
deposition is to intimidate and harass him because d’Amico is upset that a Federal
Judge found Mr. Coronis to be credible and d’Amico’s own witness was found to be
dishonest and not credible.” (Id. at 6; see also id. (“d’Amico’s hostile attitude toward Mr.
Coronis is clearly the only reason d’Amico is insisting on videotaping his deposition
because d’Amico knows it will cause Mr. Coronis ‘annoyance, embarrassment, [and]
oppression.’ Indeed, Mr. Coronis has communicated to d’Amico that he does not
consent to having his testimony videotaped because, as a citizen of the European

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“PLEASE TAKE NOTICE that, pursuant to Rule 30(b)(6) of the Federal Rules of
Civil Procedure, the Plaintiff, d’Amico Dry D.A.C., by and through its attorneys Maynard, Cooper
& Gale, P.C. and Tisdale Law Offices, LLC, will take the deposition of Nikka Finance, Inc. by the
witness or witnesses most knowledgeable about the facts alleged in the pleadings in this action
upon oral examination before a Notary Public or some other officer or person authorized by law
to take depositions at the offices of Ince & Co. Greece, 47-49 Akti Miaouli, Piraeus, Greece on
the 5th day of September, 2018 at 10:00 a.m. and you are required to produce the said party
then and there for the purpose of said deposition.” (Id. (emphasis deleted)).

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Union, who is not accustomed to being deposed, let alone having his testimony
videotaped, feels taping his deposition will cause him extreme embarrassment and
intimidation and will have a negative effect on his testimony.”)). Finally, Nikka has
expounded on its privacy argument as follows:
Mr. Coronis is a citizen of the European Union. Under the Data Protection
Act and EU General Data Protection Regulations 2018, which is in force in
the United Kingdom where the deposition will occur, and under the
European Convention on Human Rights and the Human Rights Act
(collectively, the “Acts”), every European Union citizen has a right to
privacy. Under these Acts, captured video footage counts as personal
data if the subject can be identified. Here, Mr. Coronis will be identified in
the videotaped deposition and, thus, under the Acts, d’Amico is required to
obtain Mr. Coronis’s consent and signed release before d’Amico records,
uses or stores video of him, otherwise d’Amico will be in breach of the law.
Mr. Coronis has serious privacy concerns about the videotaping of his
deposition as he thinks the only purpose of the video is to annoy,
embarrass, and oppress him and violate his privacy interests. Thus, he
does not consent to his deposition being videotaped.
(Id. at 6-7.)
d’Amico filed its response in opposition on October 12, 2018, and while the
undersigned has no need to reference that response at length here, it need be noted
that the day after Nikka filed the present motion, that is, on October 5, 2018, Plaintiff did
issue a Supplemental Notice of Deposition by Videotape (and transcription) of Nikka
Finance, Inc. (see Doc. 134, Exhibit 1).
CONCLUSIONS OF LAW
Rule 26(c) provides that “[a] party or any person from whom discovery is sought
may move for a protective order in the court where the action is pending” and, further,
“[t]he court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense[.]” Id. Indeed,
“[w]hen warranted, a party may object to the nonstenographic recording of a deposition
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under Rule 26(c).” Burr v. Phillip Morris USA, 2011 WL 13143904, *2 (M.D. Fla. Oct. 19,
2011), citing Fed.R.Civ.P. 30 advisory committee’s notes to the 1993 amendments.
With these very general principles in mind, the undersigned considers, in turn, Nikka’s
arguments in favor of issuance of a protective order prohibiting d’Amico from
videotaping Mr. Coronis’ deposition.
A.

Rule 30(b)(3) and its Application to this Case. Rule 30(b)(3)(A) of the

Federal Rules of Civil Procedure provides that “[t]he party who notices the deposition
must state in the notice the method [that is, audio, audiovisual, or stenographic means]
for recording the testimony.” Id.; see also Burr, supra, at *2 (“A deposition may be
recorded by audio, audiovisual, or stenographic means, and the method for recording
must be stated in the deposition notice.”). However, Rule 30(b)(3)(B) goes on to provide
that “[w]ith prior notice to the deponent and other parties, any party may designate
another method for recording the testimony in addition to that specified in the original
notice.” Id. (emphasis supplied).
Here, the original deposition notice issued by d’Amico can only be read as
providing for the recording of Paul Coronis’ deposition by stenographic means. (See
Doc. 123, at 4). d’Amico has since designated an additional method for recording
Coronis’ testimony, that is, by videotape (see Doc. 134, Exhibit 1), in accordance with
Rule 30(b)(3)(B). See Garcia v. Mako Surgical Corp., 2014 WL 4206681, *2 (S.D. Fla.
Aug. 25, 2014) (recognizing that party who issues the original deposition notice can
later designate another method for recording the deponent’s testimony). The
undersigned agrees with Plaintiff’s observation that “[t]he very fact that Nikka filed its
Motion for Protective Order well in advance of the deposition itself confirms that Nikka

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received ample notice of the intent to videotape the deposition.” (Doc. 134, at 8).
Accordingly, the undersigned DECLINES to issue a protective order prohibiting the
videotaping of Mr. Coronis’ deposition on this basis.
B.

Protective Order to Avoid Embarrassment, Harassment, Oppression

and/or a Violation of Privacy Interests. Though the scope of discovery is broad, see
Fed.R.Civ.P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case[.]”)), Rule 26(c) authorizes that “for good cause[,]” this Court may “issue an order
to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]” Id. “’The party requesting a protective order must make a specific
demonstration of facts in support of the request as opposed to conclusory or speculative
statements about the need for a protective order and the harm which will be suffered
without one.’” Greater Birmingham Ministries v. Merrill, 321 F.R.D. 406, 407 (N.D. Ala.
2017), quoting Dunford v. Rolly Marine Serv. Co., 233 F.R.D. 635, 636 (S.D. Fla. 2005)
(other citation omitted); see also Celentano v. Nocco, 2016 WL 4943939, *2 (M.D. Fla.
Sept. 16, 2016) (same); Trinos v. Quality Staffing Servs. Corp., 250 F.R.D. 696, 698
(S.D. Fla. July 7, 2008) (recognizing that “the party seeking the protective order must
show good cause by demonstrating a particular need for protection[;]” that “[b]road
allegations of harm, unsubstantiated by specific examples or articulated reasoning, do
not satisfy the Rule 26(c) test[;]” and that “the alleged harm must be significant, not a
mere trifle.”). Additionally, “’[a] court must balance the competing factors involved in
determining whether good cause has been shown.’” Greater Birmingham Ministries,
supra, at 407, quoting Dunford, supra; see also Celentano, supra, at *2 (“In deciding

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whether a movant has established ‘good cause’ to warrant the granting of a protective
order, courts must balance the [non-movant’s] interest in obtaining discovery against the
movant’s stated harm that would result from allowing the [videotaped] deposition.”).
Here, Nikka merely speculates that d’Amico’s insistence on videotaping Mr.
Coronis’ deposition is to intimidate and harass him and cause him annoyance,
embarrassment, and oppression (Doc. 123, at 6) but nowhere establishes the actual
harm that the deponent will suffer/endure by having his deposition videotaped. By
Nikka’s own account, Mr. Coronis successfully navigated direct and cross-examination
during the course of a four-day bench trial in New York and was found credible by the
trial judge in that case, leaving the undersigned singularly unarmed to find that Mr.
Coronis will suffer any harm by having his deposition videotaped in this case. Mr.
Coronis’ “feelings” that the taping of his “deposition will cause him extreme
embarrassment and intimidation and will have a negative effect on his testimony[]” are
insufficient to establish a particularized harm, especially given his purported successful
track record in the New York action.6 Besides, this is a different action in which Nikka
has supplied additional written discovery (that is, written discovery in addition to that
supplied in the New York action) and, therefore, this Court simply cannot downplay
d’Amico’s interest in videotaping Mr. Coronis’ deposition to preserve his testimony
should he opt to stay in Greece rather than appear for trial in Mobile on November 26,
2018, cf. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985)
(recognizing that trial preparation is an important interest “and great care must be taken

6

Nikka certainly has offered nothing which would suggest that Mr. Coronis has a
medical condition that could be aggravated by having his deposition videotaped.

8

to avoid [its] unnecessary infringement.”); compare id. with Degenhart v. Arthur State
Bank, 2011 WL 4351491, *3 (S.D. Ga. Sept. 15, 2011) (“Litigation is expensive enough,
and cost-saving videotaping is encouraged.”).
As for Mr. Coronis’ noted privacy concerns and stated unwillingness to consent
and sign a release before d’Amico records video of him, the undersigned observes that
the language utilized by Nikka in citing to the foreign Acts (Doc. 123, at 6-7) leads to the
conclusion that those Acts are directed to the use of videotaped images of persons
unaware (at least, initially) of being videotaped. Here, of course, Mr. Coronis is well
aware his deposition is to be videotaped and, therefore, having in hand no authority to
the contrary supplied by Nikka, the undersigned DECLINES to find that the Acts to
which Nikka cites are applicable to Mr. Coronis’ duly-noticed videotaped deposition,
which is to be utilized in civil litigation in the United States. At the same time, however,
in order to ensure that Mr. Coronis’ videotaped deposition will be utilized only in
connection with this litigation—and to ease his privacy concerns—the undersigned
ORDERS that the video recording component (as opposed to the transcript) of Mr.
Coronis’ deposition on October 24, 2018 is NOT to be publically disclosed or utilized in
any other investigation or litigation.
The undersigned concludes that Nikka has not established good cause for entry
of a protective order prohibiting the videotaping of Mr. Coronis’s deposition.7

7

Other than limiting the use of Mr. Coronis’ videotaped component of the
deposition to this matter/litigation alone.

9

CONCLUSION
The Defendant’s motion for protective order (Doc. 123) is DENIED and d’Amico
is specifically authorized to videotape Paul Coronis’ deposition in London, England on
October 24, 2018.
DONE and ORDERED this the 19th day of October, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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