Pogue v. The Northwestern Mutual Life Insurance Company
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. Northwestern Mutual's motion for a protective order (DN 33 ) is granted. Any deposition of it pursuant to FRCP 30(b)(6) shall be conducted at its principal place of business in Milwaukee, Wisconsin. cc: Counsel (JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-598-CRS-CHL
JAMES H. POGUE,
Plaintiff,
v.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion for protective order (DN 33) filed by
Defendant The Northwestern Mutual Life Insurance Company (“Northwestern Mutual”).
Plaintiff James H. Pogue (“Pogue”) seeks to depose Northwestern Mutual’s corporate designees,
pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, in Louisville, Kentucky. (See
DN 29.) Northwestern Mutual now seeks a protective order that would require Pogue to conduct
the deposition at its principal place of business in Milwaukee, Wisconsin rather than in
Louisville. Pogue has filed a response in opposition and Northwestern Mutual has filed a reply.
(DN 40, 42.) This matter is now ripe for review. For the following reasons, the motion for
protective order (DN 33) is granted.
BACKGROUND
This action arises from Northwestern Mutual’s denial of a disability insurance claim filed
by Pogue. Pogue is a physician who resided in Tennessee at the time of the onset of his alleged
disability; he subsequently moved to Kentucky, where he lived at the time he received notice that
Northwestern Mutual denied his claim for coverage. Pogue initiated this action in Jefferson
Circuit Court and Northwestern Mutual removed it to this Court. On October 15, 2015, Pogue
served a notice of a Rule 30(b)(6) deposition (DN 29) of Northwestern Mutual’s designated
representative(s). The deposition notice set a date of December 9, 2015 and a location of
Pogue’s counsel’s office in Louisville, Kentucky. (DN 29 at 1.) The deposition notice states
that Northwestern Mutual’s “designated representative(s) should be prepared and able to testify
as to the following matters known or reasonably available to [Northwestern Mutual]:”
1) Plaintiff’s claim for benefits under the respective insurance
policies at issue in this lawsuit.
2) Defendant’s responses to written discovery, including Rule 26
disclosures.
3) Defendant’s pleadings and defenses.
4) Defendant’s reserves for Plaintiff’s claim.
5) Sara Swanson, including her relationship with Defendant and
involvement with Plaintiff’s claim.
6) Michael Logan, including his relationship with Defendant and
involvement with Plaintiff’s claim.
(Id. at 3.)
Northwestern Mutual now seeks a protective order pursuant to Rule 26(c)(1) of the
Federal Rules of Civil Procedure that would prevent Pogue from requiring it to submit to a Rule
30(b)(6) deposition in Louisville and would instead require that the deposition take place at its
principal place of business in Milwaukee. Northwestern Mutual avers that the “broad scope of
information requested” by Pogue will require it to produce more than one witness for deposition
and that all such individuals work and reside in Wisconsin. (DN 33 at 3.) It states that there are
no Northwestern Mutual employees in Louisville who were involved in or have any knowledge
of Pogue’s claim for disability benefits.
(Id.)
Upon receiving the deposition notice,
Northwestern Mutual’s counsel contacted Pogue’s counsel by email and stated that it would not
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agree to hold the deposition in Louisville but that it would be willing to conduct it by video.
(DN 33-6, 33-8.) Pogue’s counsel did not accept this offer. (DN 33-7.)
In its motion for protective order, Northwestern Mutual argues that the general rule is that
a deposition of a corporation’s representative should take place at the corporation’s principal
place of business. It further argues that when a plaintiff notices a deposition to be taken at
another location, there arises a presumption of good cause for entry of a protective order.
Northwestern Mutual contends that Pogue has not identified any unusual circumstances that
would overcome the presumption. It contends that it is insufficient for Pogue to argue that it
conducts business in Kentucky or that, as a large corporation, it could more easily absorb the
expense of traveling for a deposition than could Pogue, an individual. Moreover, according to
Northwestern Mutual, the burden of forcing its witnesses to travel to Louisville for a deposition
far outweighs any inconvenience to Pogue’s counsel that would arise from requiring that the
deposition be held in Milwaukee.
Finally, Northwestern Mutual contends that the city of
Louisville has no significance to the facts of this case, given that its principal place of business is
in Wisconsin, that Pogue resided in Tennessee at the time of the onset of his alleged disability,
and that he now resides in another part of Kentucky.
In response, Pogue argues that it is Northwestern Mutual that bears the burden of
establishing that the deposition location should be changed, and that there is no evidence that it
would be unduly burdensome or expensive for Northwestern Mutual to appear in Kentucky. He
further argues that the Court should deny the motion for protective order for the following
reasons: (1) counsel for both parties are located in Kentucky; (2) while Northwestern Mutual’s
principal place of business is in Wisconsin, it conducts a significant amount of business in
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Kentucky; (3) Northwestern Mutual is licensed to conduct business in Kentucky and should
therefore expect to defend against claims brought in Kentucky; and (4) Northwestern Mutual is a
large corporation with far greater resources than Pogue for purposes of traveling for a deposition.
(DN 40 at 3-4 (drawing factors from Meyer v. Photofax Inc., 2009 U.S. Dist. LEXIS 55354 (E.D.
Ky. June 26, 2009)).)
In its reply, Northwestern Mutual reiterates its argument that because Pogue noticed the
Rule 30(b)(6) deposition for a location other than its principal place of business, the motion for
protective order receives a presumption of good cause.
Further, it argues, Pogue has not
established that there are unusual circumstances that would support rebutting the presumption.
Northwestern Mutual contends that Pogue not only misstates the applicable legal standard, but
that he also relies upon case law that is inapposite. It argues that the deposition notice is truly
about Pogue’s counsel’s desire to take the corporate designee’s deposition in a way that is most
convenient to counsel, and that this does not justify deviating from the rule.
DISCUSSION
Pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure, a party or person from
whom discovery is sought may move for a protective order in the court where the action is
pending, or, in matters relating to a deposition, in the court for the district where the deposition
will be taken. Fed. R. Civ. P. 26(c)(1). A motion for protective order brought under Rule 26(c)
“must include a certification that the movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute without court action.” Id. Where
good cause is shown, the Court “may . . . issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense[.]” Id. Such an order may
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“includ[e] one or more of the following: (A) forbidding the disclosure or discovery; [or] (B)
specifying terms, including time and place, for the disclosure or discovery[.]” Fed. R. Civ. P.
26(c)(1)(A)-(B).
As this matter is pending in the Western District of Kentucky, and as Pogue seeks to
depose its corporate representative(s) within this district, the Court finds that Northwestern
Mutual has brought its motion in the proper venue.
Additionally, the Court finds that
Northwestern Mutual’s counsel satisfied the requirement of Rule 26(c)(1) and LR 37.1 that
counsel confer, or attempt to confer, prior to filing a discovery-related motion. Northwestern
Mutual’s counsel contacted Pogue’s counsel on the issue of the deposition location, but counsel
for the parties were unable to come to an agreement. (See DN 33-6, 33-7, 33-8.)
The final element of Rule 26(c)(1) that Northwestern Mutual must satisfy is to establish
that “good cause” exists to support entry of a protective order. The Court has authority to
“forbid[] the disclosure or discovery” requested or to “specify[] terms, including time and place,
for the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(A)-(B). For the reasons set forth
below, the Court finds that good cause exists to grant Northwestern Mutual’s motion for a
protective order.
“[A]n ‘examining party may set the place for the deposition of another party wherever he
wishes subject to the power of the court to grant a protective order under Rule 26(c)[]
designating a different place.’” Farquhar v. Sheldon, 116 F.R.D. 70, 72 (E.D. Mich.) (quoting
Wright and Miller, Federal Practice and Procedure: Civil, Sec. 2112). District courts within the
Sixth Circuit have held that a rule has “evolved” such that “in federal litigation, in the absence of
special circumstances, a party seeking discovery must go where the desired witnesses are
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normally located.” Id.; see Ryan v. Ky. Dept. of Corr. W. Reg’l Training Ctr., 2016 U.S. Dist.
LEXIS 37653, *3-4 (W.D. Ky. Mar. 23, 2016) (“While the burden is on the moving party, this
Court recognizes that district courts within the Sixth Circuit have developed a body of case law
that favors deposing a defendant’s employee in the employee’s normal location . . . because the
defendant, unlike the plaintiff, did not choose the forum and is not a voluntary participant in the
litigation.”). “As a general rule, a plaintiff may be required to attend a deposition in the district
where the case was filed, but a defendant may insist on being deposed in the district where he
resides.” Undraitis v. Luka, 142 F.R.D. 675, 676 (N.D. Ind. 1992) (emphasis added). “The
general rule is that the deposition of a corporation by its agents and officers should be taken at
the corporation’s principal place of business.” Steppe v. Cleverdon, 2007 U.S. Dist. LEXIS
54154, *5 (E.D. Ky. July 25, 2007) (citing Chris-Craft Indus. Prods., Inc. v. Kuraray Co., Ltd.,
184 F.R.D. 605, 607 (N.D. Ill. 1999)).
The purposes underlying these general rules create a presumption that there is good cause
for a protective order when a deposition is noticed for a location other than the defendant’s place
of residence. Chris-Craft, 184 F.R.D. at 607. Because Northwestern Mutual’s principal place of
business is in Milwaukee, there is a presumption of good cause for a protective order in the face
of Pogue’s notice setting a deposition to be conducted in Louisville. The Court finds that there
are no “special circumstances” in this case that would rebut the presumption. Farquhar, 116
F.R.D. at 72. Pogue chose the forum for this lawsuit; the fact that Northwestern Mutual removed
the case to this Court is immaterial. Culver v. Wilson, 2015 U.S. Dist. LEXIS 50095, *7 (W.D.
Ky. Apr. 16, 2015); Farquhar, 116 F.R.D. at 73 (“Although defendant removed the case to this
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court, it cannot properly be said that he is now before this court by choice, since plaintiff filed
this lawsuit to begin with.”).
Pogue argues that Northwestern Mutual should expect to be required to defend lawsuits
in this district and to absorb the costs of litigation-related travel because it is a large corporation
and because it does a significant amount of business in Kentucky. Both of these arguments fail.
First, individuals frequently sue corporations and seek to depose them pursuant to Rule 30(b)(6).
If a difference in available funds for travel were sufficient to overcome the presumption, then the
rule requiring depositions to take place at the corporation’s principal place of business would
never have arisen. Second, it is true that Northwestern Mutual conducts significant business in
Kentucky; indeed, it has retained counsel in Louisville and is actively defending the instant
lawsuit in this forum. Nonetheless, the general rule is that a Rule 30(b)(6) deposition takes place
at the corporation’s principal place of business, not at any place where the entity conducts
business. Furthermore, the Court credits Northwestern Mutual’s representations that there are no
employees in Louisville who could adequately represent it at a 30(b)(6) deposition and that the
individuals who have sufficient knowledge of the areas of inquiry specified by Pogue live and
work in Wisconsin. The Court further credits Northwestern Mutual’s representations regarding
the disruption to its business operations that would occur were these two corporate
representatives required to travel to Louisville for depositions.
Northwestern Mutual’s size and financial resources do not compel a contrary result.
The parties’ arguments on this issue present an opportunity for the Court to enunciate a generally
applicable principle. Put simply, the Court will not permit the parties’ relative size and resources
alone to control the outcome in disputes such as this. If adopted, Pogue’s argument would result
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in the party with fewer financial resources automatically having power to compel the party with
greater financial resources to succumb to its choice of deposition locations, all the while with the
latter picking up the bill. The Federal Rules of Civil Procedure and the case law applying them
apply equally to all parties, regardless of their size or financial position. After choosing a
lawsuit’s forum, a plaintiff must adhere to the existing rules as the case moves forward. In this
case, Pogue is subject to the existing rule regarding the location of Rule 30(b)(6) depositions.
Absent special circumstances, such depositions shall be conducted at the defendant’s principal
place of business. No special circumstances have been demonstrated in this case.
Moreover, the fact that traveling to Milwaukee for the deposition may be inconvenient
and expensive for Pogue (should he choose to attend) and his counsel, is unpersuasive. See, e.g.,
Morin v. Nationwide Fed. Credit Union, 229 F.R.D. 362, 363 (D. Conn. 2005) (noting that
“travel for depositions is expected for litigators” and that the costly and time-consuming nature
of such travel is a “valid but seemingly unremarkable reason[]” for seeking to change the usual
location of a corporate defendant’s deposition).
Finally, the Court notes that Northwestern Mutual has stated that it is willing to conduct
the depositions of its corporate representatives by video if Pogue so desires. While Pogue’s
counsel has not, thus far, expressed a desire to do so, the parties are free to agree to such an
arrangement.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Northwestern Mutual’s motion for a
protective order (DN 33) is GRANTED. Any deposition of it pursuant to Rule 30(b)(6) of the
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Federal Rules of Civil Procedure shall be conducted at its principal place of business in
Milwaukee, Wisconsin.
May 2, 2016
Colin Lindsay, MagistrateJudge
United States District Court
cc: Counsel of record
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