Almonacid et al v. Cessna Aircraft Company et al

Filing 43

MEMORANDUM AND ORDER granting 25 Motion for to Set Deposition Conditions. Signed by Magistrate Judge Kenneth G. Gale on 3/28/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSE ALMONACID, et al.,

)
)
Plaintiffs, )
)
v.
)
)
CESSNA AIRCRAFT COMPANY )
and GOODRICH CORPORATION, )
)
Defendants. )
______________________________ )

Case No. 11-1224-MLB-KGG

ORDER GRANTING MOTION
TO SET DEPOSITION CONDITIONS
This matter is before the Court on the Motion to Set Deposition Conditions
filed by Defendant Cessna Aircraft Company. (Doc. 25.)1 The issue before the
Court is whether the nine Plaintiffs, all of whom live in southern Chile, must
present themselves in this District for their depositions.
Plaintiffs are people of very limited means, and the cost of travel to Kansas
for deposition is estimated to cost $2,000.00 each. Plaintiffs argue that they should
be permitted to meet defense counsel in Santiago, Chile, for depositions or that

1

This issue is presented in this form for the Court’s resolution as a result of
discussions by the Court and counsel during the Scheduling Conference. No special
burden is imposed on the movant. The presentation of this motion as a motion to compel,
which would have placed the burden on Defendant, or as motion for protective order,
which would have placed the burden on Plaintiffs, would not have changed the outcome.

Defendants should take the depositions by video conference. Defendant Cessna
argues that Plaintiffs chose this forum, and should be required to appear here.
Defendant objects to shifting the cost of travel to the defense, and expresses
concern about using video conferencing for the depositions in light of the
importance of the depositions and the need for lengthy depositions with numerous
exhibits and the need for translators. Defendant Cessna has offered to hold the
depositions in a U.S. city outside this District with non-stop airline service to and
from Santiago, such as Dallas, Texas.
As a general rule, a plaintiff must make himself available for examination in
the district in which he brought suit. Clayton v. Velociti, Inc., 08-2298-CM-GLR,
2009 WL 1033738 (D. Kan. April 17, 2009). “Since the plaintiff has selected the
forum, he or she will not be heard to complain about having to appear there for a
deposition.” Stubbs v. McDonald’s Corp., No. 04-2164-GTV-DJW, 2005 WL
375662, at *1 (D. Kan. Jan. 26 2005). The rule is not followed if the plaintiff can
show good cause for not being required to come to the district where the action is
pending. Clayton v. Velociti, supra (citing Wright, Miller & Marcus § 2112 at 77).
The Court may make any order “justice requires” to protect a party from “undue
burden or expense” (Fed. R. Civ. Proc. 26(c)), and may order the taking of a
deposition by remote means (Fed. R. Civ. Proc. 30(b)(4)). The issue here is
whether the expenses incurred by Plaintiffs in traveling to this District is an

“undue” burden, which should be mitigated by either requiring Defendants to
depose Plaintiffs by video conference, or by requiring defense counsel and
Defendants’ representatives to travel to Chile for Plaintiffs’ depositions. The
Court finds in this case that while there is a substantial burden to Plaintiffs, that
burden is not “undue.”
The issue here is financial. Plaintiffs seek substantial damages in this case
and elected to proceed in this District. Predictable costs attended that election.
The Court is doubtful that these critical depositions, which are central to the case,
can be effectively and efficiently taken by video conference in light of the probable
length of the depositions, the need for exhibits, and the burden of deposing
Plaintiffs’ through a translator. Although the quality of video conferencing
continues to improve, Plaintiffs have presented no specific evidence concerning
available technology to alleviate those doubts. The option of having the
depositions taken in Chile is a proposal to shift the cost of travel to Defendants,
which is not justified.2
Therefore, Defendant’s motion (Doc. 25) is GRANTED and Plaintiffs are
directed to appear in this District for their depositions.

2

Plaintiffs have not offered to pay the travel cost for defense counsel and defense
representatives, or any increased attorneys’ fees implied by such a trip.

IT IS SO ORDERED.
Dated this 28th day of March, 2012.
S/ KENNETH G. GALE
Kenneth G. Gale
U.S. Magistrate Judge