Noble v. Wells Fargo Bank, N.A.
Filing
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ORDER resolving discovery dispute as to the location of the new Rule 30(B)(6) deposition. Order signed by Magistrate Judge Erica P. Grosjean on 3/8/2017. (Rooney, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:14-cv-01963-DAD-EPG
BROOKE NOBLE,
Plaintiff,
ORDER RESOLVING DISCOVERY
DISPUTE AS TO THE LOCATION OF THE
NEW RULE 30(B)(6) DEPOSITION
vs.
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WELLS FARGO BANK, N.A., et al.,
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Defendants.
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A. Background
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A Rule 30(b)(6) deposition of Defendant Wells Fargo occurred on January 20, 2017 in
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San Francisco, California. Following that deposition, Plaintiff filed a motion to compel and for
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sanctions requesting that a new Rule 30(b)(6) deposition be compelled and that sanctions enter
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as a result of conduct impeding the January 20 deposition. (ECF No. 129)
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On February 27, 2017, the Court granted, in part, and denied, in part, Plaintiff’s motion
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to compel and for sanctions (ECF No. 129). (ECF No. 138.) Specifically, the Court ordered an
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additional seven-hour Rule 30(b)(6) deposition of Wells Fargo. (Id.) Additionally, the Court
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set forth a procedure for agreeing on the scope of that deposition, with the Court having input
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into any disputes in advance of the deposition. (Id.) The Court also denied Plaintiff’s request
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for sanctions. (Id.)
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On March 3, 2017, the parties, as directed, jointly filed a list of deposition topics with a
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statement as to whether or not the topic is accepted or disputed. (ECF No. 140.) On March 6,
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2017, the Court held a discovery dispute conference wherein certain disputed topics were
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resolved on the record. (ECF Nos. 141-42.)
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This order addresses the discovery dispute concerning the location of the new Rule
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30(b)(6) deposition. Plaintiff’s counsel argues that the new deposition should take place in the
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county where her office is located, Orange County, California. Wells Fargo maintains that the
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new deposition should occur again in San Francisco, the principal place of business for Wells
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Fargo. Both sides have filed briefs setting forth their legal positions. (ECF Nos. 142-43.)
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B. Legal Standards
Generally, “[a] party may unilaterally choose the place for deposing an opposing party,
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subject to the granting of a protective order by the Court pursuant to Rule 26(c)(2),
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Fed.R.Civ.P., designating a different place.” Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625,
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628 (C.D. Cal. 2005) (citing Turner v. Prudential Ins. Co. of America, 119 F.R.D. 381, 382
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(M.D.N.C.1988) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure, § 2112 at
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403 (1970))).
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“A district court has wide discretion to establish the time and place of depositions.”
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Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994), as amended (July 25, 1994) (citing
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In re Standard Metals Corp., 817 F.2d 625, 628 (10th Cir.1987), cert. dismissed, 488 U.S. 881,
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109 S.Ct. 201, 102 L.Ed.2d 171 (1988)).
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According to other courts reaching the issue—none of which are binding on this court,
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but which nevertheless provide guidance for the Court--a Rule 30 deposition of a corporate
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party deponent should ordinarily be taken at its principal place of business. Cadent, 232 F.R.D.
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at 628 (citing Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2112 at
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84–85 (1994 rev.)). However, “[c]orporate defendants are frequently deposed in places other
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than the location of the principal place of business, especially in the forum [where the action is
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pending], for the convenience of all parties and in the general interests of judicial economy.”
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Id. (collecting cases).
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In addition to the convenience of the parties and the interests in judicial economy,
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courts have considered the following factors when analyzing whether a corporate deposition
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should be set in a location other than its principal place of business:
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1) Location of counsel in the forum district; 2) Number of corporate
representatives to be deposed; 3) Likelihood of significant discovery disputes
arising which would necessitate resolution by the forum court; 4) Whether the
persons sought to be deposed often engage in travel for business purposes; 5)
The equities with regard to the nature of the claim and the parties' relationship.
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Stonebreaker v. Guardian Life Ins. Co., 820 F. Supp. 2d 1096, 1098–99 (S.D. Cal. 2011)
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(citing Cadent, 232 F.R.D. at 629).
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Rule 30 does not state where depositions under that rule should take place, apart from
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requiring that the notice specify the location of the deposition. Rule 30(a)(1) states in relevant
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part that “The deponent’s attendance may be compelled by subpoena under Rule 45.” Fed. R.
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Civ. P. 30(a)(1). Rule 45 includes a provision addressing “Place of Compliance” for a
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deposition, among other proceedings, and states that “A subpoena may command a person to
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attend a . . . deposition only as follows . . . within the state where the person resides, is
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employed, or regularly transacts business in person, if the person . . . is a party or a party’s
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officer . . . .”
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The parties dispute the applicability of Rule 45, especially in light of defects in
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Plaintiff’s Rule 45 subpoena such as the lack of witness fees. The Court has trouble
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reconciling the plain language of Rule 45 with the practice that corporate entities are ordinarily
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deposed at their principal place of business, and does not believe the cases cited from the
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parties put that issue to rest. Nevertheless, the Court takes comfort in the Advisory Committee
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notes to the 2013 Amendment to Rule 45, which explains in any event that “the courts retain
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their authority to control the place of party depositions . . . .”
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C. The Parties’ Positions Concerning Location
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Plaintiff argues that the relative hardships of the parties favor ordering that the new
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deposition should occur in Orange County. First, Plaintiff’s counsel asserts that scheduling the
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deposition in San Francisco would be burdensome due to “fog concerns” requiring Plaintiff’s
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counsel to expend additional hotel expenses. She argues that such concerns are non-existent in
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Orange County. Furthermore, Plaintiff contends that the problems at the January 20 deposition
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were the result of Defendant’s conduct, which necessitated the scheduling of the second
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deposition. Finally, Plaintiff asks the Court to weigh the relative financial burdens to each
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party and suggests that Wells Fargo has more financial means to travel to Orange County for
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the deposition.
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Wells Fargo argues that there are no unusual circumstances to support departing from
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the general presumption that a Rule 30(b)(6) deposition should occur at its principal place of
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business. Wells Fargo will designate two witnesses to testify on its behalf: 1) Brian Kreitzer
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(employed in Pleasanton, California); and 2) a to-be-determined witness from its Customer
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Care & Recovery Group (CCRG) (all potential witnesses employed in Iowa). Defense
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counsel’s office is located in San Francisco. Thus, the tasks of preparing the witnesses in the
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days prior to the deposition would be completed “most efficiently” in San Francisco, according
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to Wells Fargo. It is further argued that the relative travel costs of would significantly higher
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for Wells Fargo than Plaintiff because the witnesses would need to travel to Orange County,
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where none of them are located.
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D. Analysis
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Because both proposed locations of the new deposition are outside of the forum District,
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some of the factors identified in Stonebreaker and Cadent are not applicable, such as location
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of counsel in the forum district and likelihood of significant discovery disputes arising which
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would necessitate resolution by the forum court. Similarly, very little weight was applied to
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whether the persons sought to be deposed often engage in travel for business purposes and the
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number of corporate representatives to be deposed.
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However, the factors of convenience of the parties and judicial economy weigh slightly
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in favor setting the new deposition in San Francisco, where at least one witness resides and
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where defense counsel can more easily prepare the witnesses. The Court is also mindful of the
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burden of expense on Plaintiff’s counsel, especially in light of the shortfall in the preparation of
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the prior 30(b)(6) witness, which has been discussed extensively among the parties and the
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court.
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After weighing all facts, the Court finds that the continuation Rule 30(b)(6) deposition
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will take place in San Francisco. However, because the necessity of the new deposition is at
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least partially a result of Wells Fargo’s conduct in the previous deposition, and because this
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location imposes an unequal burden on Plaintiff’s counsel, the Court will fully shift the travel
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expense for Plaintiff’s counsel to Wells Fargo pursuant to Rule 26 of the Federal Rules of Civil
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Procedure. See Fed. R. Civ. P. 26(c)(1)(B); See also, e.g., Cadent, 232 F.R.D. at 630 (partially
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shifting costs of deposing corporate party after setting deposition in location that would save
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the other party considerable expense).
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IT IS SO ORDERED.
Dated:
March 8, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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