WIHO, LLC v. Hubbauer

Filing 34

MEMORANDUM AND ORDER granting 24 Motion for Protective Order. Signed by Magistrate Judge Gerald L. Rushfelt on 11/14/2013. (gc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WIHO, LLC,
Plaintiff,
v.
MATT HUBBAUER,
Defendant.

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Case No. 12-CV-1386-EFM-GLR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Protective Order (ECF 24).
Defendant Matt Hubbauer seeks an Order from the Court protecting Defendant from being
required to appear in person in Wichita, Kansas for his deposition. For the reasons set forth
below, the Court finds that the motion should be granted.
On September 4, 2012, Plaintiff commenced an action in the District Court of Sedgwick
County, Kansas, that was subsequently removed to this Court. On October 1, 2013, Plaintiff
filed a Notice of Deposition (ECF 22), setting Defendant’s deposition for November 27, 2013,1
and noticing the deposition to take place at Hinkle Law Firm’s office in Wichita, Kansas.
Although the party setting the deposition is allowed under Fed. R. Civ. P. 30 to initially
set the place for the deposition, the location is subject to court-modification through a protective

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Defendant states that the parties have discussed the fact that this date is the day before Thanksgiving, and
that they will likely agree to change the date after the Court rules on the location of the deposition. The Court notes
that Defendant objects to the current date, and will address this issue if the parties are unable to agree on an alternate
date.

order under Fed. R. Civ. P. 26(c).2 Rule 26(c)(1) provides that “[a] party . . . may move for a
protective order . . . to protect a party . . . from annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the following: . . . (B) specifying terms, including
time and place, for the disclosure or discovery . . ..”3 Defendant must show good cause for a
protective order.4
There is an initial presumption that a defendant should be examined at his residence or
the principal place of business.5 “The presumption is based on the fact that it is the plaintiff who
brings the lawsuit and who exercises the first choice as to the forum, while the defendant is not
before the court by choice.”6 Given the presumption, it typically is not difficult for a party to
establish good cause, however, the party noticing the deposition may overcome the presumption
by showing that “factors of cost, convenience, and efficiency weigh in favor of a different
location.”7
Defendant is a citizen and resident of Canada. He currently resides in Winnipeg,
Manitoba, Canada. Defendant is currently taking a full course load at The University of

2

Citimortgage v. Sanders, No. 11-CV-2540-EFM-GLR, 2012 WL 6024641, at *2 (D. Kan. Dec. 4, 2012).

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Fed. R. Civ. P. 26(c)(1)(B).

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Citimortgage, 2012 WL 6024641, at *2 (citing Lane Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244
(D. Kan. 2010)).
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See Citimortgage, 2012 WL 6024641, at *2 (noting the general rule that the “initial presumption [is] that a
defendant should be examined at his residence or the principal place of business,” and stating that the court may
determine the proper location for the deposition from the facts and equities of the case then before it) (quoting
Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626, 644 (D. Kan. 1999)).
6

Cohen-Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co., Case No. 08-2527-KHV-DJW, 2009 WL
4571845, at *2 (D. Kan. Dec. 3, 2009) (citation omitted).
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Id. (citations omitted).

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Manitoba, which includes five (5) courses that have three (3) associated lab times per week.
Defendant’s course work typically requires Defendant to be present on the University campus
from 8:30 a.m. to 4 p.m., Monday through Friday. Defendant is also working part-time assisting
at the hockey training school in the evenings, approximately 8 to 12 hours per week. He has no
other current income to pay for travel to the United States. Defendant argues that given the
demand of his current course load and part-time work schedule, travel to the United States would
create a significant burden upon him, both academically and financially.
Plaintiff responds by alleging that Defendant sought employment with Plaintiff in
Wichita, Kansas, and that Defendant received in excess of $43,000 pursuant to a workers
compensation award and therefore should have sufficient resources to travel to Wichita. Plaintiff
also argues that flying Defendant’s counsel to Canada would cost more than having Defendant
fly to Wichita. Plaintiff’s arguments do not address Defendant’s other arguments, however,
regarding missing school and work. Defendant anticipates that the deposition may only take a
half day to conduct, but will require two, and possibly three, full days of travel.
Plaintiff has not met its burden of overcoming the presumption that a defendant should be
examined at his residence. Based on the facts and equities of the case, the Court finds that
Defendant should not be required to travel to Kansas for his deposition. Plaintiff will either need
to travel to Winnipeg, Manitoba, Canada, or some other mutually agreeable location, or conduct
the deposition via videoconference. Fed. R. Civ. P. 30(b)(4) clearly permits the taking of
depositions by telephone or “other remote means,” “which the Court construes to include
depositions by videoconference.”8 Conducting the depositions by videoconference addresses the

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Shockey v. Huhtamaki, Inc., 280 F.R.D. 598, 601 (D. Kan. 2012).

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concerns associated with telephonic depositions, such as depriving the opposing party of the
opportunity for face-to-face confrontation or the opportunity to evaluate the deponent’s
nonverbal responses and demeanor.9
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Protective Order (ECF 24) is GRANTED.
Dated this 14th day of November, 2013.

S/Gerald L. Rushfelt
Gerald L. Rushfelt
U. S. Magistrate Judge

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Id. at 602.

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