Harrier Technologies, Inc. v. CPA Global Limited et al

Filing 137

RULING denying 127 Motion for Protective Order. See attached ruling for details. Signed by Judge Holly B. Fitzsimmons on 9/11/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
HARRIER TECHNOLOGIES, INC.

:
:
:
v.
:
:
CPA GLOBAL LIMITED and
:
CPA GLOBAL NORTH AMERICA, LLC :

CIV. NO. 3:12CV167 (WWE)

RULING ON CPA GLOBAL LIMITED’S MOTION FOR PROTECTIVE ORDER
[DOC. #127]
Defendant and third-party plaintiff CPA Global Limited
(“CPA”) moves for a protective order: (1) requiring that its
30(b)(6) deposition take place in London; and (2) limiting the
deposition to one seven-hour session per party, to be held on
consecutive days. [Doc. #127]. On August 18, 2014, the Court
held a telephone conference addressing the motion for protective
order in which counsel for plaintiff Harrier Technologies, Inc.
(“Harrier”), CPA, and defendant/third-party defendant Kenyon &
Kenyon LLP (“Kenyon”) participated. During the August 18, 2014
telephone conference Harrier Technologies and Kenyon objected to
the motion for protective order. On September 11, 2014, the
Court heard further argument on the motion for protective order.
For the reasons articulated below, the Court DENIES CPA‟s motion
for protective order. The Court will require CPA‟s 30(b)(6)
deposition to take place in New York, New York on consecutive
days, and will require the parties to split the reasonable costs
associated with the witness‟s travel and lodging.
1.

Background
Plaintiff Harrier is a designer and developer of technology

used in the oil industry, and CPA is a worldwide intellectual
1

property management company that provides patent renewal
services. Kenyon is an intellectual property law firm that for
some period handled plaintiff‟s U.S. and foreign patent filings.
Plaintiff alleges that defendants CPA and/or Kenyon failed to
make timely annuity payments for a Harrier patent application
filed in Saudi Arabia, leading to the

permanent loss

of the

patent rights in that country. CPA has filed a third-party
indemnification complaint against Kenyon.
The present dispute concerns the location of CPA‟s 30(b)(6)
deposition.1 Harrier previously noticed CPA‟s 30(b)(6) deposition
to occur in New York. When that deposition did not go forward,
Kenyon cross-noticed CPA‟s 30(b)(6) deposition, also to occur in
New York. CPA objected to the New York location, and thereafter
agreed with Harrier and Kenyon that the deposition would occur
in London. Kenyon has since taken the position that attending
the deposition in London would be unduly burdensome. On June 6,
2014, Kenyon noticed CPA‟s 30(b)(6) deposition to take place on
August 31, 2014 in Hartford, Connecticut. CPA now seeks a
protective order specifying the location and manner of CPA‟s
30(b)(6) deposition.
2.

Applicable Law
A. Protective Orders, Generally
Notwithstanding the breadth of the discovery rules, the

district courts are afforded discretion under Rule 26(c) to
issue protective orders limiting the scope of discovery. Dove v.
1

According to the second amended complaint, CPA “is a corporation registered
to do business in the Island of Jersey, Channel Islands, with a place of
business at Liberation House, Castle Street, St. Helier, JE1 1BL, Jersey,
Channel Islands.” [Doc. #73, ¶2].
2

Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“[t]he
grant and nature of protection is singularly within the
discretion of the district court....”). When the party seeking
the protective order demonstrates good cause, the court “may
make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense, including ... that the disclosure or
discovery not be had.” Fed. R. Civ. P. 26(c)(1). “The party
resisting discovery bears the burden of showing why discovery
should be denied.” Chamberlain v. Farmington Sav. Bank, 247
F.R.D. 288, 289 (D. Conn. Nov. 30, 2007) (citing Blankenship v.
Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
B. Deposition Location, Generally
“The deposition of a corporation by its agents and officers
should ordinarily be taken at its principal place of business,
especially when… the corporation is the defendant. This
presumption is based on the concept that it is the plaintiff who
brings the lawsuit and who exercises the first choice as to the
forum.”

Morin v. Nationwide Credit Union, 229 F.R.D. 362, 363

(D. Conn. 2005) (emphasis in original; citations omitted); see
also Buzzeo v. Bd. of Educ. Hempstead, 178 F.R.D. 390, 392
(E.D.N.Y. 1998) (“Where a corporation is involved as a party to
the litigation, there is a general presumption in favor of
conducting depositions of a corporation in its principal place
of business.”). “Generally, when the plaintiff seeks to depose
the defendant at a location other than the defendant's place of
business and the defendant objects, the plaintiff has the
3

affirmative burden of demonstrating „peculiar‟ circumstances
which compel the court to order the depositions to be held in an
alternate location.” Morin, 229 F.R.D. at 363 (compiling cases).
“Conversely, corporate defendants are frequently deposed in
places either than the location of the principal place of
business, especially in the forum, for the convenience of all
the parties and the general interests of judicial economy.”
Buzzeo, 178 F.R.D. at 392 (citation and internal quotations
omitted). In determining where to conduct the deposition of a
corporate defendant, courts look at three factors: cost,
convenience and litigation efficiency. Id. (compiling cases).
“Because courts retain substantial discretion to designate the
site of a deposition, the presumption appears to be merely a
decisional rule that facilitate determination when other
relevant factors do not favor one side over the other.” Id.
(citations omitted).
3.

Discussion
A. Enforcement of Parties‟ Agreement that CPA‟s 30(b)(6)
deposition occur in London
CPA first argues that the Court should enforce the parties‟

stipulation that its 30(b)(6) deposition occur in London. During
the August 18, 2014 telephone conference, Kenyon indicated that
it had initially agreed to the London location, but after
reviewing the costs associated with traveling, had reconsidered
its position. Although the Court encourages parties to enter
stipulations with respect to discovery disputes and is hesitant
in this case to permit Kenyon and Harrier to break such an
agreement, in light of the Court‟s findings below with respect
4

to cost, convenience, and litigation efficiency, the Court
declines on the current record to enforce the stipulation.
B. Location of CPA‟s 30(b)(6) Deposition
Plaintiff next argues that CPA‟s 30(b)(6) deposition should
occur in London because it is a foreign defendant and did not
chose the forum of this litigation. During the August 18, 2014
telephone conference, counsel for Kenyon argued that CPA is not
only a defendant, but a third-party plaintiff as it relates to
Kenyon. Kenyon further argued that because CPA‟s third-party
indemnification complaint is permissive, then CPA‟s 30(b)(6)
deposition should take place in Connecticut. Counsel for both
CPA and Kenyon argued against taking the deposition in London
for several other reasons, including the cost of travel and the
time difference between London and Connecticut.
In terms of the factors that the Court should consider,
cost, convenience, and litigation efficiency all weigh in favor
of holding CPA‟s 30(b)(6) deposition in the United States.
First, with respect to cost, counsel for Kenyon represented that
as of August 18, 2014, one round trip ticket to London from New
York City cost $1,875. Kenyon anticipates that one attorney and
one client representative will attend the deposition. Harrier
anticipates that one attorney, one client representative, and
“possibly” one associate will attend. CPA represents that only
one attorney will attend. Not including the cost of hotels and
meals, holding the 30(b)(6) deposition in London would cost
close to $12,000 for airline tickets alone.

Conversely, only

one individual‟s travel and lodging would be required if CPA‟s
5

30(b)(6) deposition were held in the United States.
The factors of convenience and litigation efficiency also
weigh in favor of holding the deposition stateside. The Court
credits Harrier and Kenyon‟s arguments that should objections
arise during the course of the deposition, the time difference
between London and Connecticut would make it virtually
impossible for the Court to address any objections. See Custom
Form Mfg., Inc. v. Omron Corp, 196 F.R.D. 333, 336-37 (N.D. Ind.
2000) (finding the best way to protect the discovery process and
to avoid potential sovereignty issues was to compel Japanese
corporate defendant‟s 30(b)(6) deposition to take place in the
United States). The Court further notes that every attorney of
record is based either in New York or Connecticut.
Further supporting the Court‟s conclusion that the 30(b)(6)
deposition should occur stateside, CPA has failed to provide any
evidence suggesting that its witness would face any undue
hardship by traveling for his deposition. Although the Court
appreciates the inconveniences of international travel, here the
record is silent with respect to any undue burden the witness
may face. Moreover, there is no evidence suggesting that CPA
will face difficulty in the witness‟s limited absence.
As other federal courts have noted, “When a foreign
corporation is doing business in the United States, is subject
to the Court‟s jurisdiction, and has freely taken advantage of
our federal rules of discovery, exceptions to the general rule
on the location of depositions are often made.” Custom Form, 196
F.R.D. at 336 (compiling cases); see also Sugarhill Records,
6

Ltd. v. Motown Record Corp, 105 F.R.D. 166, 171 (S.D.N.Y. 1985)
(“Corporate defendants are frequently deposed in places other
than the location of the principal place of business, especially
in the forum, for the convenience of all parties and in the
general interests of judicial economy.”). Therefore, the Court
orders that CPA‟s 30(b)(6) deposition occur in New York City.
Although Kenyon has noticed the deposition for Hartford, New
York is more conveniently located to two international airports
with regular flights to London. The parties will split the
reasonable costs of CPA‟s 30(b)(6) witness‟s travel and lodging,
including airfare, transportation to and from the airport in New
York, hotel accommodations, and two meals per day. See, e.g.,
id. at 338 (compiling cases)(“One means of dealing with disputes
caused by depositions in foreign countries is through orders
providing that a party bear all or a portion of expenses
incurred because the deposition is held in the locale chosen by
that party.”). Should any disputes arise with respect to the
reimbursement of such expenses, the parties should contact the
Court for a telephone conference.2
C. Manner of 30(b)(6) Deposition
CPA also seeks a protective order limiting its 30(b)(6)
deposition to two consecutive seven hour days. Kenyon objects to
being presumptively limited to only one 30(b)(6) notice for CPA.
As an initial matter, judicial economy and convenience dictates
that Harrier and CPA conduct their 30(b)(6) depositions on
In light of the above analysis, the Court need not reach Kenyon‟s
argument that CPA is a “plaintiff” as it relates to Kenyon for
purposes of the 30(b)(6) deposition.
2

7

consecutive days. Therefore, the parties will coordinate the
scheduling of these depositions accordingly.
“Unless otherwise stipulated or ordered by the court, a
deposition is limited to 1 day of 7 hours. The Court must allow
additional time consistent with Rule 26(b)(2) if needed to
fairly examine the deponent or if the deponent, another person,
or any other circumstance impedes or delays the examination.”
Fed. R. Civ. P. 30(d)(1). The Court is not inclined to
presumptively limit Kenyon to one seven day deposition. However,
because CPA‟s witness will be traveling from London, if Kenyon
seeks additional time to depose the witness, the Court will
require Kenyon to specifically identify the areas of testimony
sought and the anticipated time required to complete the
deposition. Additionally, the Court strongly encourages the
parties to use best efforts to complete the deposition for this
witness in the time frame permitted by Rule 30(d)(1). Finally,
should Kenyon require additional time to depose CPA‟s 30(b)(6)
witness, the Court will not hesitate to require that any
continued deposition be held via video-conference or some other
means which will not require the witness to travel a second
time.

4.

Conclusion
Accordingly, CPA‟s motion for protective order [Doc. #127]

is DENIED. This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
8

636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at Bridgeport this 11th day of September 2014.

____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

9