Balu v. Costa Crociere S.P.A. Company
Filing
39
ORDER granting in part and denying in part 26 Motion for Protective Order; denying 32 Motion for Sanctions; granting in part and denying in part 33 Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 8/3/2011. (EGT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-60031-CIV-UNGARO/TORRES
ANNA BALU,
Plaintiff,
vs.
COSTA CROCIERE S.P.A.,
Defendant.
____________________________________/
ORDER ON DISCOVERY MOTIONS
This matter is before the Court upon various related discovery motions pending
in the case that relate to the scheduling and location of the Defendant’s corporate
representative deposition. Upon reviewing the motions and responses, and considering
the record as a whole, the Court’s rulings follow.1
1.
Plaintiff has attempted to schedule the deposition of Defendant’s
corporate representative. The parties, however, are at an initial impasse on scheduling
that deposition based upon Defendant’s insistence that it take place in Genoa, Italy,
where Defendant’s headquarters are located. Plaintiff objects and takes the position
1
Another related motion is pending with respect to the scheduling of a
video deposition of a Costa crew member who has been designated as a corporate
representative with regard to photography procedures. [D.E. 34]. Defendant has not
yet filed its response to the motion, and thus we will not address it here. Given the
disposition of this Order, however, we trust that Defendant will resolve that motion
with Plaintiff’s counsel without the need for further Court involvement.
that the deposition should take place in Miami, which is where all counsel are present
and where the legal proceedings are located based upon the contractual forum selection
clause incorporated in Defendant’s passenger ticket. Defendant replies that it has not
initiated any claims in this forum and has a right under federal procedure to be
deposed at or near where it resides, in Italy. Thus, if Plaintiff wishes to take the
deposition she should travel to Italy.
Alternatively, Defendant argues that the
deposition should be taken by telephone or video conference.
2.
Nevertheless, Plaintiff noticed the corporate representative deposition to
take place in Miami on July 22, 2011. Defendant responded with a Motion for
Protective Order [D.E. 26] and did not appear for the deposition, citing the location
dispute as well as substantive objections to certain of the topics noticed for the
deposition. Plaintiff responded to that Motion and filed what is essentially a cross
Motion for Sanctions [D.E. 32] and Motion to Compel [D.E. 33] arguing that Defendant
has been stonewalling the process.
Location of Deposition
3.
There is no dispute that the default rule in federal procedure is that a
defendant who has not asserted any claims in the forum of the litigation has the right
to insist on being deposed in its home forum where it is headquartered. E.g., Rapoca
Energy Co., L.P. v. AMCI Export Corp., 199 F.R.D. 191, 193 (W.D. Va. 2001);
Resolution Trust Corp. v. Worldwide Ins. Mgmt. Corp., 147 F.R.D. 125, 127 (N.D. Tex.
1992), aff’d, 992 F.2d 325 (5th Cir. 1993). In particular, the deposition of a corporation
through its agents or officers should normally be taken at the principal place of
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business of the corporation. Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979);
Resolution Trust, 147 F.R.D. at 127.
4.
The Court recognizes as well that it has the power to order a defendant
to appear for its deposition in the forum where the litigation is based under certain
circumstances. E.g., Resolution Trust, 147 F.R.D. at 127 (citing Turner v. Prudential
Ins. Co., 119 F.R.D. 381, 383 (M.D.N.C. 1988)); Rapoca Energy, 199 F.R.D. at 193
(citing Armsey v. Medshares Mgmt. Serv., Inc., 184 F.R.D. 569 (W.D. Va. 1998)). These
factors include (1) the location of counsel for the parties, (2) the number of corporate
representatives a party is seeking to depose, (3) the likelihood of significant discovery
disputes arising which would necessitate resolution by the court, (4) whether the
persons sought to be deposed often engage in travel for business purposes, (5) whether
the defendant has filed a permissive counterclaim, and (6) the relevant equities
involved. Resolution Trust, 147 F.R.D. at 127; Rapoca, 199 F.R.D. at 193. Ultimately,
a court must consider each case on its own facts and the equities of the particular
situation. Id. It is also clear that in addressing this issue, a court has broad and
substantial discretion to determine the appropriate time and place for the examination
and whether any special conditions should be attached. Asea, Inc. v. Southern Pac.
Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981); In re Standard Metals Corp., 817
F.2d 625, 628 (10th Cir. 1987).
5.
We take the view, however, that in the modern age these types of disputes
are usually not necessary because depositions are now readily taken inexpensively by
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internet video (e.g., Skype) or through somewhat more expensive, but still efficient,
video conferencing facilities. See, e.g., Sloniger v. Deja, 2010 WL 5343184, at *10-12
(W.D.N.Y. Dec. 20, 2010) (upholding right of defendant to be deposed in home forum,
Germany, but via video conferencing) (collecting similar cases). Indeed, Plaintiff has
no objected, for instance, to the taking of the corporate representative deposition that
Defendant has already noticed by video teleconference. [D.E. 34]. Plaintiff merely
objects to the date and time when that deposition should be taken. For its part
Defendant is fully amenable to the taking of these corporate representative depositions
by video conference.
6.
And given the nature of this case, which arises from a three-page
complaint over a slip-and-fall on a cruise ship where Plaintiff was injured when she
allegedly fell down five stairs walking down the marble staircase following dinner,
traditional (and quite expensive) deposition methods that require personal appearance
of either the deponent or the lawyers a great distance away are quite unnecessary.
The Court sees little reason here why a video-conferenced deposition of any corporate
representative witnesses will not suffice. Any documents that the witness requires for
examination can be emailed before the deposition, or even during the deposition by
telefax or email.2
2
The same result should follow for a non-resident Plaintiff, but for the fact
that an independent medical examination cannot be conducted remotely. To
accommodate the burden on the plaintiff, however, the Court can order (as in this case)
that the IME be conducted during the same time period as a deposition or mediation
in the forum where the litigation is pending.
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7.
Therefore, the Court will Order that the parties agree on the particular
methodology to be used, as per Rule 29, for the taking of a video-conference or Skyped
deposition of the witness. To assist in that process, the Court will require that if Skype
technology is to be used, high-level broadband facilities must be used at both ends of
the communication to ensure a quality transmission. If Plaintiff wishes to videotape
the deposition, counsel may require that a court reporter’s video conference facilities
be utilized for that purpose. The court reporter may swear in the witness over the
transmission and does not have to be personally present where the deponent is, so long
as reliable identification information is transmitted by the witness (passport, etc.),
which can later be attached to the transcript as an exhibit.
If adequate video
conferencing facilities are not available in Genoa, the deponent may need to travel to
Milan (or other modern city) where those facilities are available. Given the time
difference, the deposition may if necessary have to be taken over two days. The sevenhour rule shall otherwise be in place, unless the witness requires an Italian-English
interpreter, in which case the deposition may last up to ten hours.
8.
With respect to the costs involved, Plaintiff shall bear the cost of the court
reporter. Any interpreter cost shall be borne by Defendant. For whatever video
technology is used, any third-party costs shall be borne equally by Defendant and
Plaintiff for the use of the transmission facilities, conference room, etc.
9.
The parties are free to stipulate to alternative procedures from these if
they wish. If agreement is not reached, however, these procedures shall at minimum
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apply together with those imposed in the Stoniger decision cited above from the
Western District of New York.
10.
Defendant shall arrange for the scheduling of any witness(es) necessary
for the corporate representative deposition during the first three weeks in August, in
consultation with Plaintiff’s counsel as to his schedule.
Objections to Noticed Topics
11.
Defendant’s motion for protective order was also based on Plaintiff’s
identification of certain topics in the notice of deposition that Defendant contended
required court intervention prior to the deposition. Specifically, the motion seeks
protection regarding eight different areas noticed which are allegedly irrelevant or
burdensome. Though Defendant is correct that Plaintiff did not materially respond to
this aspect of the motion, the Court finds nonetheless that the motion will be denied
on procedural grounds.
12.
This Court’s Rules and precedents are clear in this regard (even though
none were cited in the motion or reply). Rule 30 is drafted and designed to operate on
its own, extrajudicially, because these obligations are well established in the law,
especially in our district. See New World Network Ltd. v. M/V Norwegian Sea, 2007
WL 1068124, at *2-3 (S.D. Fla. Apr. 6, 2007) (citing King v. Pratt & Whitney, 161
F.R.D. 475 (S.D. Fla. 1995)). Consequently, upon receipt of the notice, the corporation
“‘must make a conscientious good-faith endeavor to designate the persons having
knowledge of the matters sought by [the party noticing the deposition] and to prepare
those persons in order that they can answer fully, completely, unevasively, the
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questions posed . . . as to the relevant subject matters.’” Bank of New York v. Meridien
BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (citations omitted); see
also Gucci America, Inc. v. Costco Cos. Inc., 2000 WL 60209, at *3 (S.D.N.Y. Jan. 24,
2000); Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999).
13.
In situations where a particular noticed topic is alleged to be outside the
scope of Rule 26 discovery, either because it is irrelevant or harassing as alleged here,
the remedy is also clear and does not involve this Court preemptively reviewing
arguments on relevance or overbreadth that may arise in a Rule 30(b)(6) notice:
In either respect, however, the Rule is intended to be self-executing and
must operate extrajudicially. Although there is some authority for the
proposition that a 30(b)(6) notice should be stricken in part based upon
the specific topics included in the notice, the proper operation of the Rule
does not require, and indeed does not justify, a process of objection and
Court intervention prior to the schedule deposition. That would provide
a corporate deponent a procedural benefit that no other deponent has. As
Judge Gonzalez found [in King], there is nothing in Rule 30(b)(6) that was
intended as a special corporate privilege or immunity in responding to
questions at a deposition. The same is true with respect to a special
corporate opportunity to challenge the topics that may be raised at a
deposition.
Instead, the better procedure to follow for the proper operation of the
Rule is for a corporate deponent to object to the designation topics that
are believed to be improper and give notice to the requesting party of
those objections, so that they can either be resolved in advance or
otherwise. The requesting party has the obligation to reconsider its
position, narrow the scope of the topic, or otherwise stand on its position
and seek to compel additional answers if necessary, following the
deposition. The reason that is a better procedure is that the deponent's
answers to relevant questions at the deposition will have a great deal of
impact upon the strength of the arguments in support of or against a
motion to compel. The answers provided will give the Court a factual
record with which to judge whether a particular topic or question asked
should be compelled or not. And that forces a responding party to ensure
that the witness provides as much relevant or possibly relevant
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information as possible given the liberal scope of discovery provided by
Rule 26 to forestall the necessity for a motion to compel.
New World, 2007 WL 1068124, at *4.
14.
Accordingly, whatever merit Defendant’s arguments here may have as to
the relevance of particular topics is a matter that would be first addressed in its
preparation for responding to the 30(b)(6) notice. To the extent that the corporation’s
witnesses are not properly prepared on a relevant designated topic, Rule 37 sanctions
may follow. On the other hand, to the extent that the corporation does comply with its
obligations, a motion to compel better answers on issues that are too far afield from the
claims and defenses in this particular case would meet a similar fate. Either way,
those issues are best addressed after the deposition if necessary. Defendant must keep
in mind, however, that the burden will be on Defendant to show that any topic
requested at a deposition fell outside the very broad scope of discovery envisioned by
Rule 26. Attorneys’ fees may thus have to be considered if Defendant cannot meet that
burden.3
3
Rule 26(b) of the Federal Rules of Civil Procedure defines the scope of
discovery as including “any matter, not privileged, that is relevant to the claim or
defense of any party.” Fed. R. Civ. P. 26(b). “The Federal Rules of Civil Procedure
strongly favor full discovery whenever possible.” Farnsworth v. Procter & Gamble Co.,
758 F.2d 1545, 1547 (11th Cir. 1985). Courts must consequently employ a liberal and
broad scope of discovery in keeping with the spirit and purpose of these discovery rules.
Rosenbaum v. Becker & Poliakoff, P.A., 708 F. Supp. 2d 1304, 1306 (S.D. Fla. 2010)
(collecting cases). To sustain a discovery objection, the party opposing production
must show that the requested discovery has no possible bearing on the claims and
defenses raised in the case. See, e.g., Wrangen v. Pennsylvania Lumbermans Mut. Ins.
Co., 593 F. Supp. 2d 1273, 1278 (S.D. Fla. 2008). This means that the party must
demonstrate either that the requested discovery (1) does not come within the broad
scope of relevance as defined under Rule 26 or (2) is of such marginal relevance that
the potential harm occasioned by discovery would far outweigh the ordinary
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15.
On this basis, relief under Rule 26(c) was not warranted, and is now
Denied, with respect to this aspect of Defendant’s motion for protective order.
16.
Finally, the Court finds that neither party has taken wholly unjustified
positions on the issues raised. Hence, no sanctions shall be imposed for either party.
Accordingly, it is hereby ORDERED AND ADJUDGED:
A.
Defendant’s Motion for Protective Order [D.E. 26] is GRANTED in part
and DENIED in part.
B.
Plaintiff’s Motion for Sanctions [D.E. 32] is DENIED.
C.
Plaintiff’s Motion to Compel [D.E. 33] is GRANTED in part and DENIED
in part.
DONE AND ORDERED in Chambers at Miami, Florida this 3rd day of August,
2011.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
presumption in favor of broad disclosures. Milinazzo v. State Farm Ins. Co., 247 F.R.D.
691, 695 (S.D. Fla. 2007). And to show that the requested discovery is otherwise
objectionable, the onus is on that party to demonstrate with specificity how the
objected-to request is unreasonable or otherwise unduly burdensome. Rossbach v.
Rundle, 128 F. Supp. 2d 1348, 1354 (S.D. Fla. 2000) (citing in part Panola Land Buyers
Ass’n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (objections must be “plain and
specific enough so that the court can understand in what way the [requested discovery]
are alleged to be objectionable”)).
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