Lovato v. Wal-Mart Stores Inc

Filing 44

OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant's Motion to Compel 40 and ORDERS that Plaintiff's deposition shall take place, as outlined in Order. The Court ORDERS Plaintiff, on or before 8/6/2018, to provide at least 4 dates in September 2018 on which Plaintiff and her counsel are available for her deposition and to specify whether each date is proposed for an in-person deposition or a deposition by remote means. The Court EXTENDS the Fact Discover y Deadline to 10/5/2018. Any party wishing to pursue such an award in light of this Opinion and Order shall submit a brief in support on or before 8/9/2018. Response and reply deadlines shall follow those set forth in Northern District of Indiana Local Rule 7-1(d)(2). Signed by Magistrate Judge Paul R Cherry on 7/26/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
CHRISTELLA LOVATO,
Plaintiff,
v.
WAL-MART STORES INC.
Defendant.

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) CAUSE NO.: 4:16-CV-84-JTM-PRC
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OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Compel [DE 40] filed by
Defendant1 on June 29, 2018. Plaintiff Christella Lovato filed a response on June 13, 2018, and
Defendant filed a reply on July 20, 2018.
In the Motion, Defendant asks the Court to compel Plaintiff to provide multiple possible
dates for Plaintiff’s deposition to be taken in the Northern District of Indiana and to award
Defendant its costs incurred in bringing this Motion. Defendant had originally drafted the Motion
and accompanying Brief to include a request for authorization forms for release of medical
information, but Defendant represents that it received those releases—which were signed a few
weeks earlier—while Defendant was preparing to file the instant Motion and Brief.
Plaintiff, in response, objects to the location of the deposition but not to the taking of the
deposition in general. Plaintiff also asserts that Defendant did not meet the conferral requirements
of Federal Rule of Civil Procedure 37. For the following reasons, the Motion will be granted in part,
denied in part, and set for further briefing on the issue of an award of costs.

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Defendant is sued as Wal-Mart Stores Inc. but states that its proper name is Walmart Stores East, L.P.

ANALYSIS
Rule 37 requires that a motion for an order compelling discovery “must include a
certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R.
Civ. P. 37(a)(1).
In the Rule 37 certification submitted with the instant Motion, Defendant’s counsel certifies
that her firm provided proposed deposition dates to Plaintiff’s counsel on May 4, 14, 16, and 17,
which Plaintiff’s counsel either failed to respond to or declined the dates without providing
alternative dates. Further, Defendant’s counsel certifies that her firm requested alternative deposition
dates from Plaintiff’s counsel on May 2, 18, 24, and 29 and that no response was given. Finally,
Defendant’s counsel certifies that she contacted Plaintiff’s counsel by telephone and e-mail on June
27, 2018, and that Plaintiff’s counsel refused to discuss the issues telephonically and did not agree
to produce Plaintiff for her deposition or provide any dates for the deposition, though Plaintiff did
suggest a conversation be held the next week.
This certification, and the e-mail messages submitted with the Motion, show a pattern of
Defendant’s counsel’s attempts to resolve this dispute without the Court’s involvement. Plaintiff
argues that Defendant should have been required to attempt one more conferral, specifically a
telephone call on July 2, 2018. In light of Defendant’s numerous attempts over the previous weeks
to set a deposition date, the Court finds no reason to deny the Motion based on this certification.
As for the location of Plaintiff’s deposition, this is a matter left to the Court’s discretion. New
Medium Techs. LLC v. Barco N.V., 242 F.R.D. 460, 462 (N.D. Ill. 2007). However, the general rule

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is that a plaintiff must attend a deposition in the district where the case was filed. Undraitis v. Luka,
142 F.R.D. 675, 676 (N.D. Ind. 1992). The reason for the rule is that “the plaintiff has chosen the
forum voluntarily and should expect to appear for any legal proceedings” unlike the defendant, who
“is an involuntary participant” and, as a general rule, “may insist upon being deposed in the district
where he resides.” Id.
Plaintiff argues that, if Defendant had proceeded with Plaintiff’s previously scheduled
deposition on May 1, 2018, then there would have been no problem with a deposition in this district.
However, Plaintiff has since that time graduated from her degree program and moved to New
Mexico. Plaintiff states that Defendant was informed during a telephone conversation of Plaintiff’s
plans to move out of state, but Defendant disputes that it was so informed and represents that it
searched its phone records and has no record of any such telephone conversation taking place.
Plaintiff offers that she could be deposed by video conference technology, which is permitted by
Federal Rule of Civil Procedure 30(b)(4).
Defendant seeks to attribute the postponement of the May 1 deposition date to Plaintiff.
Specifically, Defendant asserts that it postponed the May 1, 2018 deposition due to Plaintiff’s failure
to provide medical information release forms because Defendant wished to review Plaintiff’s
medical records before deposing Plaintiff.
On the other side of this dispute, Plaintiff attempts to classify the failure to schedule
depositions as a mutual matter by asserting that Defendant has a long and “well documented” history
of refusing to schedule the deposition of Deb Jenkins. However, Plaintiff provides no documentation
or other evidence on this point, and Defendant’s Exhibit A shows that in multiple e-mail messages
Defendant sought to schedule the Jenkins deposition. (See, e.g., Mot. Ex. A, 2, 6, 28, ECF No. 41-1).

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Further, the Jenkins deposition is not the subject of the instant Motion.
As for the taking of Plaintiff’s deposition by remote means, Rule 30 states that depositions
may occur by remote means either by stipulation of the parties or by Court order. Though Plaintiff
submits that a deposition by remote means is a viable option, Defendant objects on the ground that
the deposition will likely involve the examination of many documents, which is a cumbersome
process when a deposition is taken remotely. However, the distance between New Mexico and
Indiana is substantial, and the Federal Rules provide for the taking of depositions remotely. See Fed.
R. Civ. P. 30(b)(4). As for Defendant’s objection, exact copies of documents can be made and sent
in either physical or electronic form.
Plaintiff chose to bring suit in the Northern District of Indiana, and her delay in providing
medical information release authorizations at a minimum contributed to (and perhaps was the sole
cause of) the postponement of her deposition until after her move to New Mexico. Defendant has
submitted evidence that convincingly shows that it tried—even without knowledge of Plaintiff’s
impending move out-of-state—to obtain Plaintiff’s relevant medical information and depose her in
a relatively prompt manner. Plaintiff has submitted no evidence to rebut Defendant’s evidence.
There is no cause to go against the general rule and order Plaintiff’s deposition to be taken in person
in New Mexico, but taking Plaintiff’s deposition by remote means is a viable option, for which there
is good cause.
Defendant’s request for an award of costs will be set for further briefing.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part
Defendant’s Motion to Compel and ORDERS that Plaintiff’s deposition shall take place, at

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Plaintiff’s choice, either in New Mexico by remote means or in the Northern District of Indiana. If
the deposition is taken by remote means in New Mexico, Plaintiff shall bear the additional costs
incurred by nature of the deposition not being taken in person, including the cost of providing exact
copies of any documents examined at the deposition.
The Court ORDERS Plaintiff, on or before August 6, 2018, to provide at least 4 dates in
September 2018 on which Plaintiff and her counsel are available for her deposition and to specify
whether each date is proposed for an in-person deposition or a deposition by remote means. The
Court EXTENDS the Fact Discovery Deadline to October 5, 2018.
If the deposition is taken by remote means, the Court will entertain, upon a showing of good
cause, a motion for an extension of the permitted length of Plaintiff’s deposition based on delays
caused by any inefficiencies that result from taking the deposition remotely.
Defendant has asked for an award of its costs incurred in bringing this Motion. Pursuant to
Federal Rule of Civil Procedure 37(a)(5)(C), such an award can be made. Any party wishing to
pursue such an award in light of this Opinion and Order shall submit a brief in support on or before
August 9, 2018. Response and reply deadlines shall follow those set forth in Northern District of
Indiana Local Rule 7-1(d)(2).
So ORDERED this 26th day of July, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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