Culver v. Wilson et al
Filing
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER (DN 32 ) by Magistrate Judge Colin H. Lindsay. Deposition Notice (DN 27 ) is stricken; Any deposition of Werner conducted by Culver shall be held in Omaha, Nebraska or another location Werner's counsel confirms is convenient; Should Culver desire to depose corporate representative of Werner, counsel for both parties shall confer regarding acceptable dates prior to Culver issuing deposition notice. cc: Counsel (JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CHELSEA CULVER,
Plaintiff,
v.
CASE NO. 3:14-CV-660-CRS-CHL
QUINTAURUS R. WILSON, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR PROTECTIVE ORDER
This matter is before the Court on the motion of Defendant Werner Enterprises, Inc.
(“Werner”) for a protective order (“Motion”) (DN 32) that would strike a Deposition Notice
issued by Plaintiff Chelsea Culver (“Culver”). Culver did not file a response to the Motion.1
This matter is now ripe for review.
Background
In its Motion, Werner asks the Court to enter a protective order, pursuant to Rule 26(c) of
the Federal Rules of Civil Procedure, striking a deposition notice (“Deposition Notice”) (DN 27)
issued by Culver. On February 11, 2015, Culver issued a notice (DN 27) that she intended to
take a video deposition, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, of a
designated representative of Werner. Culver scheduled the deposition for March 6, 2015 at the
offices of Culver’s counsel in Louisville, Kentucky. (DN 27 at 1.) The Deposition Notice
included 35 “Items of Inquiry” and 27 “Documents Requested to be Produced.” (DN 27 at 3-8.)
On March 4, 2015, Werner filed the Motion. (DN 32.) Werner contends that, prior to
serving the Deposition Notice, Culver’s counsel did nothing to indicate that Culver was seeking
1
Failure to timely respond to a motion may be grounds, in itself, for granting the motion. LR 7.1(c).
to depose a representative of Werner. (DN 32-1 at 1.) Therefore, Werner alleges, neither it nor
its counsel had knowledge that Culver sought to depose a Werner representative until the
Deposition Notice was served.
Werner represents that its principal place of business or
headquarters is located in Omaha, Nebraska. (DN 32-1 at 1.) Werner submits that a defendant
cannot be compelled to be deposed in a district other than district in which its residence or
principal place of business is located. (DN 32-1 at 2.)
Werner argues that its Motion satisfies the requirements of Fed. R. Civ. P. 26(c) and LR
37.1. First, Werner contends, the following factors establish that good cause exists for setting
aside the Deposition Notice and rescheduling the deposition: (1) a defendant cannot be
compelled to be deposed in a district other than the district of its principal place of business; (2)
Werner’s counsel attempted to arrange the attendance of a Werner representative, but was unable
to do so due to scheduling conflicts and lack of sufficient notice; and (3) no time-sensitive issues
exist in this case that would support holding the deposition on the date chosen by Culver. (DN
32-1 at 2.) Finally, Werner maintains that it met the requirements of LR 37.1 by contacting
Culver’s counsel more than once to make a good-faith effort to reschedule the deposition. (DN
32-1 at 2-3; see DN 32-3.) Werner represents that Culver’s counsel refused to withdraw the
Deposition Notice and reschedule the deposition even after Werner’s counsel agreed to make a
representative available for deposition in Werner’s principal place of business. (DN 32 at 3.)
Werner requests that the Court strike the Deposition Notice and require the parties to
reschedule the deposition for a date agreed to by both parties and to be held in Omaha,
Nebraska.2
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Werner also requests that the Court “protect the witness from any possible sanction for failing to appear at
any noticed deposition pending by the Plaintiff without an agreed rescheduled time for said deposition.” (DN 32-1
2
Discussion
Werner has moved for entry of a protective order pursuant to Rule 26(c) of the Federal
Rules of Civil Procedure. Pursuant to Rule 26(c)(1), 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 a 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.” Fed. R. Civ. P. 26(c)(1).
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
“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).
The Court finds that entry of a protective order pursuant to Rule 26(c)(1) is appropriate
under the circumstances of this case. Werner has brought its Motion in the proper venue, given
that this matter is pending in the Western District of Kentucky and that Culver seeks to depose a
Werner representative in this district. Additionally, the Court is satisfied that Werner’s counsel
satisfied Rule 26(c)(1) and LR 37.1’s requirement that counsel confer, or attempt to confer, prior
to filing a discovery-related motion. Werner’s counsel contacted Culver’s counsel by mail on
February 20, 2015, and represents that its counsel made additional attempts to resolve the matter,
but such efforts were unsuccessful.
(See DN 32-3, addressing Werner’s representatives’
at 3.) This request for “protection” is misplaced. Under the circumstances, the Court sees no reason to sanction
Werner, on its own motion, for any conduct by it or its representative(s) to date. Moreover, Culver has not, by
motion or otherwise, requested that the Court sanction Werner or its representative(s).
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unavailability on the date set by Culver and requesting that counsel work together to reschedule a
deposition at or near Werner’s principal place of business.)
The final element of Rule 26(c)(1) that Werner must satisfy is to establish that “good
cause” exists in support of entry of a protective order. Fed. R. Civ. P. 26(c)(1). The Court has
authority to “forbid[] the disclosure or discovery,” or “specify[] terms, including time and place,
for the disclosure or discovery.” Rule 26(c)(1)(A), (B). The Court interprets Werner’s Motion
to seek issuance of a protective order to “protect [it] from . . . undue burden or expense” that
would result from having to make its representative(s) available for a deposition in Louisville,
Kentucky, rather than at its principal place of business in Omaha, Nebraska. Id. Werner’s
requested remedy is that the Court strike the Deposition Notice and order the parties to confer to
reschedule a deposition in Omaha on a date agreeable to both parties. The Court finds that to
require a Werner representative to be deposed in Louisville, Kentucky, rather than in Omaha,
Nebraska, would impose an undue burden on Werner.
“[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. Shelden, 116 F.R.D. 70, 72 (S.D. Mich. 1987)
(quoting Wright and Miller, Federal Practice and Procedure: Civil, Sec. 2107). District courts
of 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 normally located.” Farquhar, 116 F.R.D. at 72. “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.
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Ind. 1992). “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. 2007) (citing Chris-Craft Indus. Prods., Inc. v. Kuraray Co.,
Ltd., 184 F.R.D. 605, 607 (N.D. Ill. 2009); see also Farquhar, 116 F.R.D. at 72 (“[I]t will be
presumed that the defendant will be examined at his residence or place of business or
employment”) (quotation omitted). The rationale behind this rule is that the plaintiff chose the
forum voluntarily, but the defendant is an involuntary participant in the litigation. Id. (citations
omitted). This is true even where, as here, the defendant removed the case to federal court. See
Farquhar, 116 F.R.D. at 73 (“Although defendant removed the case to this court, it cannot
properly be said that he is now before this court by choice, since plaintiff filed this lawsuit to
begin with”).
“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.” Steppe, 2007 U.S. Dist. at *5 (citing Chris-Craft, 184 F.R.D. at 607). It
does not appear to the Court there exist any “unusual circumstances which justify” the
inconvenience to Werner that would result if its representative(s) were compelled to appear for a
deposition in Louisville rather than in Omaha. Id. Indeed, Culver has not filed a response to the
Motion to attempt to justify her insistence that the deposition take place in Louisville. With
respect to the date set in the Deposition Notice, March 6, 2015, over one month has passed since
that date and there is no evidence that Culver has been prejudiced as a result. For the foregoing
reasons, the Court finds that Werner has established good cause for a protective order striking the
Deposition Notice.
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Accordingly, IT IS HEREBY ORDERED that the Deposition Notice (DN 27) issued by
Culver to Werner is STRICKEN pursuant to the Court’s authority under Rule 26(c)(1) of the
Federal Rules of Civil Procedure. Werner shall not be compelled to appear for a deposition in
Louisville, Kentucky. Any deposition of Werner conducted by Culver SHALL BE HELD IN
OMAHA, NEBRASKA or another location that Werner’s counsel confirms is convenient for and
agreeable to Werner. Should Culver desire to depose a corporate representative of Werner,
counsel for both parties SHALL CONFER REGARDING DATES that are acceptable to both
parties prior to any notice of deposition being issued by Culver.
April 16, 2015
Colin Lindsay, MagistrateJudge
United States District Court
cc: Counsel of record
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