Delgado v. Magical Cruise Company, Limited

Filing 37

ORDER granting in part and denying in part Defendant's Motion for Protective Order, Motion to Quash, and Motion to Compel Plaintiff to apply for a Visa [Doc. 31], and Defendant's Motion for Protective Order and Motion to Quash Plaintiff's Unilateral Notice of Defendant's 30(b)(6) Corporate Representative Deposition 32 . Signed by Magistrate Judge Thomas B. Smith on 5/30/2017. (EC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JORGE DELGADO,
Plaintiff,
v.

Case No: 6:15-cv-2139-Orl-41TBS

MAGICAL CRUISE COMPANY,
LIMITED,
Defendant.
ORDER
Pending before the Court are Defendant’s Motion for Protective Order, Motion to
Quash, and Motion to Compel Plaintiff to apply for a Visa (Doc. 31), and Defendant’s
Motion for Protective Order and Motion to Quash Plaintiff’s Unilateral Notice of
Defendant’s 30(b)(6) Corporate Representative Deposition (Doc. 32). The Court has
reviewed Plaintiff Jorge Delgado’s responses to the motions (Docs. 33, 35) and heard
oral argument (Doc. 36).
Background
Delgado served as a crewmember aboard Defendant’s ships (Doc. 33). In April
2014, during the course of his shipboard employment, Delgado suffered a herniated disk
injury as a result of the alleged negligence of Defendant (Doc. 1). Delgado was medically
disembarked and repatriated to his native country of Peru (Doc. 33). In Lima, he received
medical care and treatment provided by Defendant’s network of doctors (Id.). Delgado
represents that on February 23, 2015, Dr. Gomez declared that he had reached
maximum medical improvement for his injury (Id.). This lawsuit was filed in December
2015 (Doc. 1).

Although the parties’ initial case management meeting was held on May 11, 2016
(Doc. 12) (thus starting the period allowed for discovery) and the discovery deadline is set
to expire June 5, 2017, neither party has taken the deposition of the other. On May 15,
2017, Delgado noticed his own deposition to occur on May 25, 2017 “via Skype” (Doc. 314). 1 On May 18, 2017, Delgado served a Notice of Taking Deposition of Defendant’s
corporate representative, to occur May 30, 2017 (Doc. 32-1). Defendant objects to both
depositions on various grounds. When asked at hearing why Defendant did not notice
Delgado’s deposition, its counsel said Defendant made a “business decision” to wait until
after the April 24, 2017 mediation to determine whether it was necessary to depose
Delgado. 2 When Delgado was asked about his own delay in seeking to depose
Defendant’s corporate representative, his lawyer claimed that defense counsel have
“refused to produce their calendars,” thus forcing him to unilaterally schedule the
deposition to occur before the discovery cut-off.
Motion regarding the taking of Delgado’s deposition (Doc. 31)
Rule 26(c) allows the Court to enter a protective order, for good cause, to protect a
party from annoyance, embarrassment, oppression, or undue burden or expense. FED. R.
CIV. P. 26(C)(1). Defendant relies on the rule here, and objects to the unilateral scheduling
of Delgado’s deposition via Skype, arguing that Delgado should be compelled to apply for
a visa in order to appear in Florida for his deposition and “possible” Rule 35 examination.
Defendant also seeks an extension of time to complete Delgado’s deposition and “if

“Skype is an internet communication service that provides live, two-way audio and video
communication.” Hernandez v. Hendrix Produce, Inc., 297 F.R.D. 538, 540 (S.D. Ga. 2014) citing Julian v.
State, 319 Ga.App. 808, 738 S.E.2d 647, 649 n. 4 (Ga.App.2013).
1

The motion reflects that it was not until May 8, 2017, that defense counsel first reached out to
Delgado’s counsel regarding scheduling Delgado’s deposition (Doc. 31, ¶6).
2

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necessary” Rule 35 examination, and also requests an extension until July 1 for
Defendant’s expert physician disclosures. Defendant requests attorney’s fees and costs
associated with bringing its motion. The Court finds that for the most part, the motion is
without merit.
The last minute and unilateral scheduling of Delgado’s deposition by Delgado
would normally be enough to warrant quashing the notice. But at hearing, Delgado’s
attorney represented that visa difficulties will most likely preclude his client’s presence at
trial, making testimony by remote means essential to preserve Delgado’s testimony for
trial. As Defendant did not timely attempt to take Plaintiff’s deposition for reasons of its
own, Delgado cannot be faulted for setting it himself.
Depositions by remote means are not unusual, given the strides of technology, and
it is undisputed that Delgado needs but does not have the visa necessary to enter the
United States for this purpose. In addition, Delgado represents that he is an unemployed
seaman with scarce financial means and travel for this purpose is a great economic
hardship. While the Court acknowledges that deposing Delgado from Peru via Skype is
not as desirable as a face to face deposition in Florida, to the extent this is a burden on
Defendant, such burden is not “undue” under the circumstances. See Rule 30(b)(4)
(allowing deposition “by remote means”); Balu v. Costa Crociere S.P.A., No. 11-60031CIV, 2011 WL 3359681, at *2 (S.D. Fla. Aug. 3, 2011) (noting “depositions are now
readily taken inexpensively by internet video (e.g., Skype) or through somewhat more
expensive, but still efficient, video conferencing facilities.”); Hernandez v. Hendrix
Produce, Inc., 297 F.R.D. 538, 541 (S.D. Ga. 2014) (“Skype depositions have been used
where travel is cost prohibitive” – collecting cases); In re Willingham, No. 3:11-AP-00269JAF, 2014 WL 3697556, at *4 (Bankr. M.D. Fla. July 18, 2014) (“ample case law

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recognizes that a videoconference deposition can be an adequate substitute for an inperson deposition, particularly when significant expenses are at issue” – collecting cases).
As noted in a case cited by Defendant: ““[I]f a plaintiff demonstrates hardship or burden
that outweighs any prejudice to the defendant, the general rule requiring a plaintiff to
appear for deposition in the forum ‘may yield to the exigencies of the particular case.’”
Arval Serv. Lease S.A. v. Clifton, No. 3:14-CV-1047-J-39MCR, 2015 WL 12818837, at *3
(M.D. Fla. June 23, 2015), quoting Palma v. Safe Hurricane Shutters, Inc., 2009 WL
653305, *4 (S.D. Fla. Mar. 12, 2009). Here, I find no reason to compel Delgado to apply
for a visa or incur the expense of traveling to Florida for his deposition.
I am also not persuaded that Delgado’s presence in Florida is required for a
“possible” Rule 35 examination. Defendant has filed no motion seeking such an
examination and, considering that Delgado has been under the care of physicians
employed by Defendant, it has not established good cause for same. There is also no
good cause shown for extending the deadline for expert witness disclosures.
Now, Defendant’s motion is denied to the extent it seeks to quash the deposition of
Delgado, compel Delgado to obtain a visa in order to come to Florida, for an award of
costs, and for an extension of time to make expert witness disclosures. Defendant’s
motion is granted to the extent it seeks an extension of time to complete Delgado’s
deposition, as follows: Delgado may be deposed in Peru by remote means (Skype,
videoconferencing or similar) at a time mutually convenient to the parties, but no later
than July 31, 2017. If taking the deposition by videographic means proves to be

demonstrably insufficient and Defendant can show good cause, Defendant may move to
tax the costs of defense counsel taking the deposition in person in Peru. Consistent with
the requirements of the Case Management and Scheduling Order, any discovery

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conducted after the dispositive motions date will not be available for summary judgment
purposes and the delay in taking this deposition is not grounds for extension of the
summary judgment deadline.
Motion regarding the taking of Defendant’s deposition (Doc. 32)
Defendant moves for a protective order and to quash Delgado’s unilateral Notice of
Deposition of Defendant’s 30(b)(6) Corporate Representative, contending that it was not
timely served, was not coordinated with defense counsel, and Defendant’s chosen
counsel is not available on the date selected, or any other date prior to the expiration of
discovery.
Rule 30(b)(1) provides that “[a] party who wants to depose a person by oral
questions must give reasonable written notice to every other party.” FED. R. CIV. P.
30()(1). Pursuant to our local rule: “Unless otherwise stipulated by all interested parties …,
a party desiring to take the deposition of any person upon oral examination shall give at
least fourteen (14) days’ notice in writing to every other party to the action and to the
deponent (if the deponent if not a party).” L. R. 3.02. As the Notice of Taking a May 30,
2017 Deposition of Defendant’s corporate representative was served on May 18 (Doc.
32-1), it is untimely.
Delgado does not dispute the untimeliness of the Notice, contending only that as
defense counsel “refused to produce their calendars to facilitate scheduling,” Delgado’s
counsel “had no choice but to notice the deposition to occur before the discovery cutoff.”
(Doc. 35 at 2). Delgado suggests a discovery extension would remedy the objection,
noting that, although Defendant is at fault for not producing calendars or providing sworn
affidavits as to counsel’s stated unavailability, Delgado’s counsel is “nevertheless …
willing to confer in good faith to coordinate mutually agreeable times and dates for the

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depositions.”(Doc. 35 at 3). I am not persuaded. Although Delgado’s counsel claims that
he “had no choice but to notice the deposition” for this time, I disagree. Delgado had a
year in which to depose Defendant. He chose to wait until the waning days of discovery to
serve his Notice. 3 There are consequences to such a choice. I find no showing of good
cause for the unreasonable delay evident here. Therefore, I see no reason to extend the
discovery deadline to accommodate Delgado’s failure to timely secure Defendant’s
deposition. Defendant’s motion is GRANTED to the extent it seeks to preclude the taking
of the corporate deposition.
Defendant seeks an award of reasonable fees and costs associated with bringing
the motion, under FED. R. CIV. P. 26(c)(3) (incorporating Rule 37(a)(5)’s award of
expenses for motions for protective order). I am not persuaded. The course of conduct
evidenced in the papers and at hearing make it clear that counsel on both sides share
responsibility for the situation giving rise to these motions. 4 Accordingly, the motion is
DENIED as to fees and costs. See Rule 37(a)(5)(A)(iii) (no costs “if other circumstances
make an award of expenses unjust”).
DONE and ORDERED in Orlando, Florida on May 30, 2017.

3 I do not accept counsel’s excuse that his failure to schedule the deposition was defense counsel’s
fault. In this district, counsel are obligated to work together to assure the orderly flow of discovery. To the
extent Delgado was having exceptional difficulty setting an agreeable date for Defendant’s deposition, he
could have sought the Court’s assistance through a timely filed motion. He did not do so.
4 Delgado’s counsel’s unseemly suggestion regarding who should be “the only lawyer allowed to
communicate” with him (Doc. 35 at 4) is one example. Defense counsel’s wide-eyed innocence in insisting
that Defendant’s deposition cannot possibly be taken until after Delgado’s deposition, while making no
efforts to depose Delgado, is another.

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Copies furnished to Counsel of Record

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