Schall v. Suzuki Motor of America, Inc. et al

Filing 135

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge H. Brent Brennenstuhl on 11/21/2017 denying 132 Motion for Protective Order. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:14CV-00074-JHM
DEREK SCHALL

PLAINTIFF

vs.
SUZUKI MOTOR OF AMERICA, INC.;
SUZUKI MOTOR CORPORATION; and
NISSIN KOGYO CO., LTD.,

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
Before the Court is a motion for protective order filed by Defendant Suzuki Motor
Corporation (“SMC”) (DN 132). Relying on the general rule, SMC argues that the Court should
issue a protective order requiring Plaintiff to conduct the Fed. R. Civ. P. 30(b)(6) deposition of
its designated witness, Yoshinobu Matsumoto, in Japan because that is where SMC’s principal
place of business is located (DN 132).

Schall objects to the motion because special

circumstances exist that justify the Court issuing an order directing SMC to produce its Rule
30(b)(6) witness in Orange County, California, where SMC established the headquarters for its
wholly-owned subsidiary Defendant Suzuki Motor of America, Inc. (“SMAI”) (DN 133). By
agreement of the parties, no reply will be filed (DN 130). The motion stands submitted to the
undersigned for ruling. For the reasons that follow, SMC’s motion for protective order is denied.
Background
Schall filed his complaint on July 17, 2014 (DN 1) and his amended complaint
on July 18, 2014 (DN 5).

Schall asserts that he owned and operated a 2006 Suzuki

motorcycle, model GSX-R600, equipped with a front brake master cylinder determined to be
defective by SMC and SMAI (DN 5 ¶ 6, 38, 39). Specifically, he contends that the brake piston
was insufficiently surface treated and this led to corrosion which, in turn, generated hydrogen gas
which impaired the function of the brake system (Id. ¶ 27-29, 38). Schall claims that, due to this
defect in the motorcycle’s front master brake cylinder, he was unable to stop and was involved in
a single-vehicle collision in which he sustained serious physical injuries (Id. ¶ 7, 39). Schall
brought this action alleging strict products liability and negligence against SMC, the
manufacturer of the motorcycle; SMAI, the importer of the motorcycle; and Nissin Kogyo Co.,
Ltd., the manufacturer of the front brake master cylinder (Id. ¶ 41-52).
As a result of procedural and jurisdictional motion practice, the undersigned did
not issue a scheduling order until May 29, 2015 (DN 52). Schall served initial written
discovery on June 1, 2016 (DN 121 PageID # 1529). He issued initial Rule 30(b)(6)
deposition notices to SMAI and SMC on July 1, 2015 (Id.). The actual scheduling of
those depositions was delayed by litigation over the location of SMC’s corporate
representative deposition and scheduling issues concerning the availability of SMAI’s
representatives (Id.).

In August 2015, SMAI and SMC produced documents in

response to Schall’s initial written discovery (Id.). SMAI made additional document
productions in September, November, and December 2015 (Id.).

During this time

frame, SMC apparently produced over 131,000 Japanese language documents,
including emails (Id.).
Schall took the depositions of SMAI’s corporate representatives, Mark Eastman
and Steve Muthig, on February 10 and 11, 2016, respectively.

Schall took the

deposition of SMC’s corporate representative, Mr. Matsumoto, in California on March

2

9, 2016. At the time, Mr. Matsumoto was employed as the Director of Thai Suzuki
Motor Co. Ltd. in Thailand (DN 123 PageID # 1620). SMC flew Mr. Matsumoto to
California at its expense for the Rule 30(b)(6) deposition (Id.).
There appears to be no dispute that Schall received six categories of documents
from SMAI and SMC in the months following the corporate representative depositions.
Specifically: (1) SMAI produced the post July 2013 “Siebel” reports 1; (2) SMAI
produced unredacted versions of the 97 “Siebel” reports that were generated through
July 2013 and previously produced in redacted form; (3) SMAI produced the AIQ
questionnaires 2; (4) SMAI and SMC produced quality control guidelines and policies
and procedures addressing the investigation of accidents and disclosure of a defect to
SMC; (5) SMAI produced 1,169 emails containing information about other similar
incidents; and (6) SMC produced 54 documents selected by Schall for translation from
Japanese to English language, as a resolution of an outstanding discovery dispute
involving the thousands of Japanese language documents produced by SMC (DN 121
PageID # 1527-34; DN 123 PageID # 1620).
In July of this year, Schall filed a motion, pursuant to Fed. R. Civ. P. 1, 26, and
30(b)(6), to reopen the depositions of corporate representatives for SMAI and SMC
due to the newly produced documents (DN 121).

SMAI and SMC objected to the

motion (DN 123), and Schall filed a reply (DN 125).

1

The “Siebel” reports reflect instances when customers and dealers reported issues with the Suzuki
GSX-R motorcycle front brakes to Americans Suzuki motor Corporation (“ASMC”) and, subsequently,
SMAI (DN 121 PageID # 1530).
2

Sworn and notarized questionnaires called “AIQs” were completed and returned by customers who
had crashes related to the failure of the front brakes on their Suzuki GSX-R motorcycles (Id.).

3

In a memorandum opinion and order filed on September 13, 2017, the
undersigned

observed

that

Schall

took

the

deposition

of

SMC’s

corporate

representative, Mr. Matsumoto, on March 9, 2016 (DN 127 PageID # 1715). Further,
the undersigned recognized that in the months following that Rule 30(b)(6) deposition,
SMC produced to Schall the following categories of documents: quality control
guidelines and policies and procedures addressing the investigation of the accidents
and disclosure of the defect to SMC; and 54 documents selected by Schall for
translation from Japanese to English language, as a resolution of an outstanding
discovery dispute involving the thousands of Japanese language documents produced
by SMC (Id. PageID # 1715-16). In pertinent part the undersigned’s ruling reads as
follows:
The Court concludes that Schall should be permitted to reopen the
Rule 30(b)(6) deposition with regard to both categories of
documents.3
Clearly, testimony by SMC’s corporate
representative about each category of documents is relevant, within
the meaning of Rule 26(b)(6), to Schall’s strict liability and
negligence claims.
Obtaining testimony from SMC’s corporate representative about
the first category of documents is proportional to the needs of the
case because the burden and expense incurred by SMC is
outweighed by its importance to Schall’s negligence claim
regarding SMC’s evaluation of complaints about the defect and the
information it received from SMAI. With regard to Rule
26(b)(2)(C)(i), the information Schall seeks about SMC’s policies
is not unreasonably cumulative or duplicative, nor can it be
obtained from some other source that is more convenient, less
burdensome, or less expensive. In reaching this conclusion, the
Court notes that SMC does not dispute that its corporate
representative indicated he was unaware of policies and procedures
governing the investigation of the defect and disclosure of the
3

In reaching this conclusion, the undersigned declined SMC’s invitation to apply the distorting effects of
hindsight to Schall’s decision to limit the Rule 30(b)(6) deposition to one day (DN 127 PageID # 1716 n. 7).
The undersigned observed that Schall did not at that time have the benefit of the knowledge that he now has because
SMC produce the material at issue after he made his decision and conducted the deposition (Id.).

4

defect. Further, while interrogatories may provide an adequate
basis to develop a working understanding about SMC’s policies
and procedures, deposing a Rule 30(b)(6) witness will provide
Schall with the ability to tailor probing questions in response to the
witness’ answers to previous questions. Rule 26(b)(2)(C)(ii) does
not provide SMC relief here because Schall’s ability to conduct a
probing examination was hamstrung by the material not having
been produced and Mr. Matsumoto being unprepared for
examination regarding the corporation’s policies and procedures.
Clearly, Schall is entitled to testimony from a Rule 30(b)(6)
witness who is educated about this material and speaks on behalf
of SMC.
Obtaining testimony from SMC’s corporate representative
about the 54 documents selected by Schall for translation
from Japanese to English language is proportional to the
needs of the case because the burden and expense incurred
by SMC is outweighed by its importance to Schall’s strict
liability and negligence claims.
With regard to Rule
26(b)(2)(C)(i), the information Schall seeks about these
translated documents is not unreasonably cumulative or
duplicative, nor can it be obtained from some other source
that is more convenient, less burdensome, or less expensive.
Rule 26(b)(2)(C)(ii) does not provide SMC relief here
because Schall’s ability to conduct a probing examination
was hamstrung by the material’s not having been translated
prior to Mr. Matsumoto’s deposition. Further, the Court
declines SMAI’s invitation to apply the distorting effects of
hindsight to Schall’s decision to proceed with the Rule
30(b)(6) deposition rather than wait for resolution of the
discovery dispute over translations of the documents.
Clearly, Schall is entitled to testimony from a Rule 30(b)(6)
witness who is educated about this material and speaks on
behalf of SMC.
(Id. PageID # 1716-17).
In sum, the undersigned granted Schall’s motion for leave to reopen the
deposition of SMC’s corporate representative because of conduct by SMC with regard
to witness preparation and document production. Further, the undersigned sought to
address this conduct by ordering SMC to produce a prepared and knowledgeable
corporate representative to testify about the documents identified above (Id. PageID #
5

1718). Moreover, in an effort to address the delays precipitated by SMC and SMAI’s
conduct, the undersigned extended the fact discovery deadline to December 18, 2017
for the limited purpose of completing this and other specified depositions by “no later
than December 15, 2017” (Id.) (emphasis in original).
SMC has again designated Mr. Matsumoto as its corporate representative in the
Rule 30(b)(6) deposition (DN 132 PageID # 1735-36). Instead of agreeing to once
more produce him in California, on a date that complies with the Court’s December 15,
2017 deadline, SMC has filed a motion for a protective order that would require Schall
to conduct the Rule 30(b)(6) deposition in Japan. There is no dispute that if SMC’s
motion is granted, Schall will have to comply with all of the strict procedural
requirements in the United States-Japan Consular Convention and Protocol Treaty
(“the Treaty”) to conduct the deposition in Japan, and the soonest it might be
conducted would be the spring or summer of 2018, months after the December 15,
2017 deadline specified in the Court’s order.
Arguments
1. SMC’s Motion
SMC, a Japanese corporation with a principal place of business in Japan, has
moved for entry of a protective order under Fed. R. Civ. P. 26(c)(1) because it
contends there is a presumption that this Rule 30(b)(6) deposition must be conducted
in Japan (DN 132 PageID # 1730-32).

SMC asserts that Schall must rebut this

presumption by demonstrating that “special circumstances” exist to conduct the
deposition in the United States (Id.). SMC contends that the Court should consider

6

cost, convenience, and litigation efficiency in determining whether Schall has
demonstrated that “special circumstances” exist (Id. PageID # 1732).
2. Schall’s Response
Schall asserts that following the Court’s order, he repeatedly communicated
with SMC about scheduling the Rule 30(b)(6) deposition (DN 133 PageID # 1785-89).
Schall indicates that SMC waited until October 2, 2017 to announce that it would only
produce Mr. Matsumoto in Japan (DN 133 PageID # 1785-89). Schall suggests that
this delay is questionable due to SMC’s previous discovery conduct and its knowledge
of the lengthy and costly scheduling process for taking depositions in Japan (Id.).
Referring to the United States-Japan Consular Convention and Protocol Treaty, Schall contends
that the strict and burdensome regulations governing depositions in Japan are one of the main
reasons that multiple courts have rejected Japanese defendants’ arguments on this issue, instead
finding that the deposition should be conducted in the United States (Id. PageID # 1786-1806).
Schall submits that he has shown “good cause” to require SMC to produce Mr. Matsumoto, or
any other representative it may designate, in California for the Rule 30(b)(6) deposition (Id.).
Applicable Standard
District courts within the Sixth Circuit have developed a general tenet that Rule
30(b)(6) depositions should be taken at the corporation’s principal place of business.
See Davis v. Hartford Life & Accident Ins. Co., No. 3:14-CV-00507-TBR, 2016 WL
3843478, at *3 (W.D. Ky. July 13, 2016); Pogue v. Northwestern Mut. Life Ins. Co.,
No. 3:14-CV-598-CRS-CHL, 2016 WL 2343898, at *3 (W.D. Ky. May 2, 2016). The
general tenet recognizes that the plaintiff voluntarily chose the forum, in contrast to
the corporate defendant who is an involuntary participant in the litigation. Davis, 2016

7

WL 3843478, at *3. For this reason, the general tenet creates a presumption that there
is “good cause” for a protective order, under Fed. R. Civ. P. 26(c)(1)(B), when a Rule
30(b)(6) deposition is noticed for a location other than the defendant’s principal place
of business. See Davis, 2016 WL 3843478, at *3; Pogue, 2016 WL 2343898, at *3;
Steppe v. Cleverdon, No. 06-144-JHM, 2007 WL 6831006, at *2 (E.D. Ky. July 25,
2007).

However, district courts within the Sixth Circuit recognize that this

presumption

of

“good

cause”

can

be

rebutted

by

demonstrating

“special

circumstances.” See Davis, 2016 WL 3843478, at *3-4; Pogue, 2016 WL 2343898, at
*3-4; Cassidy v. Teaching Co., LLC, No. 2:13-CV-884, 2014 WL 4377843, at *2-3
(S.D. Ohio Sept. 4, 2014).
In determining whether “special circumstances” exist district courts within the
Sixth Circuit have considered the factors of cost, convenience, and litigation
efficiency. See Davis, 2016 WL 3843478, at *3-4; Pogue, 2016 WL 2343898, at *3-4;
Cassidy, 2014 WL 4377843, at *2-3.

District courts from other circuits have also

considered factors such as the court’s ability to intervene if there is a discovery dispute
during the deposition 4, the procedural process for taking and scheduling the
deposition 5, the delays that may be imposed on the case as a result of conducting a
foreign deposition 6, and whether it would be unfair to the deposing party to limit its

4

Delphi Auto. Sys., LLC v. Shinwa Int'l Holdings Ltd., No. 1:07-CV-0811-SDB-JMS, 2008 U.S. Dist. LEXIS
55929, at *6-7 (S.D. Ind. July 23, 2008); New Medium Techs. LLC v. Barco N.V., 242 F.R.D. 460, 467 (N.D. Ill.
Apr. 30, 2007); Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333, 336-37 (N.D. Ind. 2000).
5

In re Vitamins Antitrust Litig., No. 99-179 (TSH), MDL No. 1285, 2001 U.S. Dist. LEXIS 24025, at *34-35
(D.D.C. Nov. 30, 2001); Dean Foods Co. v. Eastman Chem. Co., No. C 00-4379 WHO, C00-4402 WHO (JL), 2001
U.S. Dist. LEXIS 25447, at *23-24 (N.D. Cal. Aug. 13, 2001).
6

Advanced Tech. Incubator, Inc. v. Sharp Corp., No. 2:07-CV-468, 2008 U.S. Dist. LEXIS 84272, at
*9-12 (E.D. Tx. Oct. 21, 2008).

8

discovery to depositions abroad while the defendant-deponent freely conducts
discovery in the United States 7. Notably, the Sixth Circuit has indicated that district
courts are vested with great discretion in designating the location of a deposition.
Lomax v. Sears, Roebuck & Co., No. 99-6589, 2000 WL 1888715, at *3 (6th Cir.
2000).
Discussion
Here, Schall wants to take the Rule 30(b)(6) deposition of Mr. Matsumoto in
Orange County, California.

However, SMC is a Japanese corporation having its

principal place of business in Hamamatsu-shi, Shizuoka-prefecture, Japan. Thus, there
is a presumption of “good cause” for a protective order specifying that Schall take the
deposition of Mr. Matsumoto in Japan. The Court will now determine whether Schall
has rebutted this presumption by demonstrating “special circumstances” exist to
conduct the deposition in the United States.
1. Costs
With regard to cost, SMC asserts that mere disparity in available funds is not
sufficient to rebut the presumption (DN 132 PageID # 1732-34). Further, SMC points
out the Pogue court explained that “[i]f 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.” 2016
WL 2343898, at *3.
Schall seeks to distinguish the circumstances here from those in Pogue by
emphasizing that the travel costs associated with taking the deposition in Japan are
extreme, and will have to be borne by over six or seven attorneys as opposed to a
7

In re Honda Am. Motor Co., 168 F.R.D. 535, 539 (D. Md. 1996).

9

single witness (DN 133 PageID # 1797-98). Further, Schall points out that in addition
to the travel expenses, he will also be required to pay a $1,283 reservation fee
(nonrefundable); a $309 per hour fee to have an embassy officer present during the
deposition; a $415 fee for providing a seal and certifying the deposition; the as yet
unknown cost of having reporters and videographers who speak English present at the
deposition; and, because there is no access to the internet and a photocopier at the
Embassy, the cost of having to find and reserve a facility nearby where those services
can be obtained. Schall contends that he should not have to incur these thousands of dollars in
additional expenses to obtain testimony from SMC’s representative in Japan when the Court
concluded that the deposition should be reopened due to SMC’s conduct.
The circumstances here are distinguishable from those in cases such as Pogue,
2016 WL 2343898, at *4, and Davis, 2016 WL 3843478, at *4, where the issue was
merely the difference in available funds for travel. Here, the undersigned granted
Schall’s motion for leave to reopen the deposition of SMC’s corporate representative
because of conduct by SMC with regard to witness preparation and document
production (DN 127).

Instead of agreeing to again produce Mr. Matsumoto in

California, SMC now seeks to have the deposition completed in Japan which will
impose a significant financial burden on Schall if he wants to obtain the discovery that
the undersigned has already indicated he is entitled to obtain. Thus, with regard to the
factor costs, the unique situation before the court constitutes “special circumstances”
sufficient to rebut the presumption that SMC has “good cause” for its protective order.

10

2. Convenience  

SMC claims that it has designated Mr. Matsumoto as its corporate representative
because there are no employees in the United States who could adequately represent
SMC in the Rule 30(b)(6) deposition (DN 132 PageID # 1735-36). SMC asserts that
Mr. Matsumoto now works in Japan as the Manager and Group Leader of the Chassis
Design Group in the Motorcycle Body Design Department (DN 132 PageID # 1734,
DN 132-1 PageID # 1746-48). SMC contends that taking Mr. Matsumoto’s deposition
in the United States will impose a significant disruption and hardship to both Mr.
Matsumoto and SMC because he is responsible for supervising numerous engineers and
other support staff, answering questions, and providing direction for its engineering
team to complete work critical to Suzuki’s on-going business of designing and
producing motorcycles around the world (Id.).

Additionally, SMC claims that Mr.

Matsumoto will lose at least two business weeks of time as a result of his traveling to
the United States, adapting to the time zone change, preparing for the deposition,
attending the deposition, traveling back to Japan, and adapting to the time change (Id.).
Schall suggests that any inconvenience was caused by SMC’s own misconduct (DN 133
PageID # 1800-03). Further, Schall suggests that there are steps such as delegation of duties and
use of electronic communications that Mr. Matsumoto and SMC can take to address some of the
purported hardships caused by what should be a brief absence of a few days, as opposed to the
claimed two business weeks, if SMC produced Mr. Matsumoto in California (Id.). Schall points
out that Mr. Matsumoto appeared to have no trouble adjusting to the time zone changes when he
flew from Thailand to California, a substantially longer trip, for the original deposition (Id.).

11

Finally, Schall asserts that the circumstances here are distinguishable from the cases cited by
SMC for support on the question of whether the deposition should be conducted in Japan (Id.).
The undersigned notes that the convenience analysis includes consideration of
whether there is any hardship to counsel, where the deponent lives, and to what extent
the deponent’s affairs may be disrupted by having to travel to the site of the
deposition. See MEMC Electronic Materials v. Balakrishnan, No. 2:12-CV-344, 2012
WL 1606053, at*3 (S. D. Ohio May 8, 2012) (citations omitted). With regard to the
issue of any hardship to counsel, the undersigned notes that Schall’s counsel will need
to comply with the procedural requirements under the Treaty in order to conduct the
deposition in Japan. By contrast, SMC’s counsel will not face a similar burden if the deposition
is conducted in California.
The burden of the procedures required to conduct a deposition in Japan are
daunting. See Dean Foods Co. v. Eastman Chem. Co., No. C 00-4379 WHO, C00-4402 WHO
(JL), 2001 U.S. Dist. LEXIS 25447, at *23 (N.D. Cal. Aug. 13, 2001). The district court in Dean
summarized the procedures as follows:
1) Contact the consulate in Osaka to find out what dates are
available. There are only two meeting rooms in the
consulate and the largest holds only fifteen people;
2) Make an initial reservation for the preferred dates;
3) Submit a certified check for the $400 reservation fee;
4) Petition the court for a commission to take the deposition
on the specified date;
5) Transmit a certified copy of the commission to the
consulate naming all the persons to be deposed, and of all
who will participate;

12

6) Pre-pay in full the required consular fee of $200 per day;
7) Each attorney who will attend the deposition must obtain a
special visa issued by the Japanese government to conduct
depositions in Japan, which can be issued only after the
consulate confirms that it is ready to proceed with the
deposition;
8) Arrange for stenographers, videographers and interpreters;
Japanese court reporters are extremely rare and therefore
heavily booked. American court reporters are prohibited
from working in Japan without a permit;
9) Be prepared to sign the transcript in the presence of the
consular officer.
Consular facilities and staff are available only on
weekdays, and not on holidays, during the lunch hour or
after closing: basically for a seven-hour day.
Id. at *23-24. Additionally, Schall has pointed out that the fees have only increased since the
Dean ruling in 2001, and now include a $1,283 reservation fee (nonrefundable), $309 per hour
fee for embassy officers who may take or attend the deposition, and $415 fee for providing a seal
and certifying the deposition (DN 133 PageID # 1794). Moreover, Schall has identified the
following factors related to the procedural process of taking a deposition in Japan:
1) Plaintiff’s counsel cannot connect to the internet during the
deposition;
2) Plaintiff’s laptop and other electronic equipment needs to
be pre-registered, and cannot connect to the internet during
the deposition – if the laptop or Ipad breaks or is damaged
shortly before the deposition the process has to start all
over again;
3) Depositions are limited to six total hours per day, and this
includes the time for setting up, asking questions, breaking
everything down and leaving for a mandatory evacuation at
lunch, then coming back after lunch and doing it all over
again;

13

4) Plaintiff has no ability to change or alter counsel to the
extent an issue arose – if Mr. Thompson, Mr. Rhoads or
Mr. Ellis became ill or otherwise indisposed, it would be
impossible for the other counsel to substitute in under
Japanese law and obtain the necessary visa, and the process
would need to be started all over again;
5) There are no photocopiers for use at the Embassy, meaning
if there was any issue concerning a copy, it would further
delay the deposition.
(Id.).
Clearly, compliance with these procedural requirements will constitute a considerable
hardship to Schall’s counsel. Other district courts have considered these burdensome procedural
requirements in their analysis. see In re Vitamins Antitrust Litig., No. 99-179 (TSH), MDL No.
1285, 2001 U.S. Dist. LEXIS 24025, at *34-35 (D.D.C. Nov. 30, 2001) (recognized that the
detailed requirements present a sizeable procedural impediment); Dean Foods Co., 2001 U.S.
Dist. LEXIS 25447, at *23-24 (referring to the burden as “daunting”); In re Honda Am. Motor
Co., 168 F.R.D. 535, 540 (D. Md. 1996) (noted that the additional procedural steps could unduly
prolong the litigation). And at least two courts have relied on the burdensome procedural
requirements when they concluded that the Rule 30(b)(6) depositions should be conducted in the
United States, not Japan. See In re Vitamins Antitrust Litig., 2001 U.S. Dist. LEXIS 24025, at
*35; Dean Foods Co., 2001 U.S. Dist. LEXIS 25447, at *24. Further, imposing such a hardship
on Schall’s counsel is particularly troubling because the undersigned reopened the deposition of
SMC’s corporate representative due to conduct by SMC with regard to witness preparation and
document production.
The undersigned acknowledges that there will be some disruption to the affairs
of Mr. Matsumoto and SMC if he is required to travel from Japan to California for the
deposition. However, there are reasonable steps such as delegation of duties and the
14

use of telephones, emails, and video communications to adequately address many of
the tasks identified. Further, SMC’s claim that Mr. Matsumoto will miss two business
weeks of time is not fully credible. Mr. Matsumoto is an experienced international
traveler who has undoubtedly developed the ability to quickly adjust to such time zone
changes, as he did when he made a substantially longer trip, from Thailand to
California, to attend the earlier deposition.
Additionally, Mr. Matsumoto’s affidavit merely indicates that SMC has
determined there are no employees in the United States who could adequately represent
it at a Rule 30(b)(6) deposition (DN 132-1 ¶ 7). His affidavit is noticeably silent on
the question of whether there is another SMC employee working outside the United
States who could travel to California and adequately represent SMC at a Rule 30(b)(6)
deposition. Obviously, the hardships identified in Mr. Matsumoto’s affidavit could be
avoided if SMC designated a different employee to travel to California and represent it
at the Rule 30(b)(6) deposition.

Thus, with regard to the factor convenience, the

unique situation before the court constitutes “special circumstances” sufficient to rebut
the presumption that SMC has “good cause” for its protective order.
3. Litigation Efficiency
SMC acknowledges that the Treaty imposes additional strict procedures for taking
depositions in Japan (DN 132 PageID #1736-43).

However, SMC asserts that, while the

procedures are strict, they are not unduly burdensome, and these procedures must be respected
by the Court (Id.). Further, SMC indicates that Schall should have foreseen the need to comply
with these procedures when he filed suit against a Japanese corporation (Id.). Moreover, SMC
contends that other courts have concluded a 12-hour time difference is not dispositive on the
issue of litigation efficiency (Id. PageID # 1742-43).
15

Schall argues that multiple courts have recognized that conducting a deposition in Japan
will substantially impair the court’s jurisdiction and ability to intervene if a discovery dispute
arises during the deposition (Id. PageID # 1795-96). Schall points out that the parties in this case
have had to contact the Court and seek judicial intervention over 10 times since discovery began
in 2015 (Id.). Further, Schall suggests that if a discovery issue arose during the deposition, there
is at least the potential that the parties would have to make another trip to Japan to complete the
deposition (Id.). Additionally, Schall points out that district courts are likely to infringe on a
foreign sovereign if they attempt to regulate a deposition occurring on foreign soil (Id.).
The undersigned finds that the strict procedural requirements under the Treaty are
antithetical to promoting litigation efficiency. They will require Schall to expend a great deal of
additional time and money to arrange the deposition. Further, the strict procedural requirements
will delay completion of the deposition to at least the spring or summer of 2018, maybe longer.
See In re Honda Am. Motor Co., 168 F.R.D. at 540 (noted that the additional procedural steps
could unduly prolong the litigation). Moreover, taking this Rule 30(b)(6) deposition in Japan
will have an impact on the Court’s ability to intervene, should it become necessary, to address a
discovery dispute. For example, this Court’s authority to intervene may be compromised by
sovereignty issues. See Delphi Auto. Sys., LLC v. Shinwa Int'l Holdings Ltd., No. 1:07-CV0811-SDB-JMS, 2008 U.S. Dist. LEXIS 55929, at *6-7 (S.D. Ind. July 23, 2008) (observing that
foreign judicial sovereignty may be infringed if a federal court compels discovery on foreign
soil); In re Vitamins Antitrust Litig., 2001 U.S. Dist. LEXIS 24025, at *36-37 (noting that taking
Federal Rules deposition testimony abroad does pose a potential affront to a foreign nation's
sovereignty); Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333, 336-37 (N.D.
Ind. 2000) (observing that the federal district court’s authority to address discovery

16

disputes during the depositions would be compromised by sovereignty issues if the
depositions took place in Japan).

Additionally, due to the time difference between

Japan and Kentucky, this Court will be closed while the deposition is being conducted.
See New Medium Techs. LLC v. Barco N.V., 242 F.R.D. 460, 467 (N.D. Ill. Apr. 30, 2007)
(noting the 14 hour time difference between Japan and Chicago where the court was located).
Further, it would be patently unfair to require Schall to comply with these strict, time consuming,
and expensive requirements in order to complete the deposition of SMC’s Rule 30(b)(6) witness
in Japan, when the undersigned ordered the deposition reopened because of conduct by SMC
with regard to witness preparation and document production.8 Thus, the undersigned concludes
that conducting the deposition in Japan would not further litigation efficiency in this case.
In sum, after considering the factors of cost, convenience, and litigation
efficiency, the undersigned concludes that there are “special circumstances” sufficient
to rebut the presumption that SMC has “good cause” for its protective order.
ORDER
IT IS HEREBY ORDERED that SMC’s motion for a protective order (DN 132) is
DENIED.

November 21, 2017

Copies:

Counsel

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For this reason, the circumstances here are distinguishable from those in the cases cited by SMC where the courts
ordered the depositions be conducted in Japan. See Motion Games, LLC v. Nintendo Co., Ltd., 2014 WL 5306961
(E.D.Tex. 2014); Six West Retail Acquisition v. Sony Theatre Management Corp., 203 F.R.D. 98, 108 (S.D. N.Y.
2001); Chris-Craft Indus. Products, Inc. v. Kuraray Co., Ltd., 184 F.R.D. 605, 608–09 (N.D. Ill. 1999); Narco
Avionics, Inc. v. Sportsmen’s Market, Inc., 1992 WL 37106, at *5 (E.D.Pa. 1992).

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