Berthelot, et al v. Andreas Fahl Medizintechnik-Vertrieb GmbH

Filing 57

ORDER AND REASONS: IT IS ORDERED that the 34 motion for review is DISMISSED and the Magistrate Judge's 30 order is AFFIRMED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/12/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAVON BERTHELOT, ET AL.

CIVIL ACTION

VERSUS

NO. 17-2140

ANDREAS FAHL MEDIZINTECHNIKVERTRIEB GMBH

SECTION "B"(3)

ORDER AND REASONS
Defendant filed a motion pursuant to Federal Rule of Civil
Procedure 72 for review of a discovery-related order (Rec. Doc.
30) issued by Magistrate Judge Knowles. Rec. Doc. 34. Plaintiffs
timely filed an opposition. Rec. Doc. 40. Defendant then sought,
and was granted, leave to file a reply. Rec. Doc. 46. For the
reasons discussed below,
IT IS ORDERED that the motion for review (Rec. Doc. 34) is
DISMISSED and the Magistrate Judge’s order (Rec. Doc. 30) is
AFFIRMED.
This is a products liability and wrongful death action brought
by Plaintiffs, the surviving wife and children of decedent, against
Defendant, who manufactured an allegedly defective medical device
used by decedent. See Rec. Doc. 1. The case was initially filed in
March 2017. See id. Plaintiffs reside in Louisiana and Defendant
is a German company. See id. ¶¶ 1-5. In November 2017, Plaintiffs
moved to compel Defendant’s 30(b)(6) deposition to occur in New
Orleans. See Rec. Doc. 14. As part of their motion, Plaintiffs
also sought an order compelling all depositions of Defendant’s
1

witnesses to occur in New Orleans. See id. The Magistrate Judge
held a hearing on the issue. See Rec. Doc. 28. In a thorough and
reasoned order, he granted in part Plaintiffs’ motion, ordering
that the 30(b)(6) deposition be held in New Orleans. See Rec. Doc.
30 at 14. However, the order also denied as premature Plaintiffs’
request that all depositions of Defendant’s witnesses occur in New
Orleans. See id.
While “[t]he deposition of a corporation through its agents
or officers is normally taken at the corporation's principal place
of business[,]” a court “has broad discretion to determine the
appropriate place for a Rule 30(b)(6) deposition.” See Martin v.
Allstate Ins. Co., 292 F.R.D. 361, 368 (N.D. Tex. 2013). Courts
look

for

“peculiar

circumstances”

when

deciding

whether

the

deposition of a corporate representative should occur somewhere
other than the corporation’s principal place of business. See
Salter v. Upjohn Co., 593 F.2d 649, 651-52 (5th Cir. 1979). This
analysis requires consideration of the following factors:
(1) [whether] counsel for both parties are located in
the forum district; (2) [whether] the plaintiff seeks to
depose only one corporate representative; (3) [whether]
the defendant chooses a corporate representative who
does not reside in the location of the principal place
of business; (4) [whether] significant discovery
disputes are likely to arise, which may require
resolution by the forum court; and (5) [whether] the
nature of the claim and the parties' relationship are
such that an appropriate adjustment of the equities
favors a deposition site in the forum district.

2

Martin,

292 F.R.D. at 368 (citing

Resolution Trust Corp. v.

Worldwide Ins. Mgmt. Corp., 147 F.R.D. 125, 127 (N.D. Tex. 1992)).
Here,

Magistrate

the

(6)

deposition

(1)

should

Defendant

has

be

Judge

concluded

conducted

availed

in

itself

that

New

of

the

Orleans

the

30(b)

because:

American

legal

system by securing FDA approval for sale of its products in
the United States; (2) both parties’ counsel are located in New
Orleans;

(3)

Defendant

products

around

resources

to

the

travel

is

a

corporation

world
to

and

New

that

therefore

markets

has

its

sufficient

Orleans for the deposition; (4)

Plaintiffs have agreed to offset some of the costs of conducting
the

deposition

in

New

Orleans;

(5)

the

court

may

need

to

intervene during the deposition because of the parties’ ongoing
and

repeated

discovery

disputes;

and

(6)

conducting

depositions at the United States consulate in Germany requires
a

long

period

of

advance

notice

for

scheduling

and

approvals.1 See Rec. Doc. 30 at 9-10.
These

are

requires courts

precisely
to

the

consider

considerations

when

deciding

that

whether

the
to

law

compel

a foreign corporate defendant to produce a representative for
a

30(b)(6)

F.R.D.

at

deposition in the United States. See Martin, 292
368.

Legal tests that require a court to weigh a

multitude of factors
1

The magistrate judge also noted that verbatim stenography would not available
if the deposition was conducted in Germany. See Rec. Doc. 30 at 10. It appears
that this is inaccurate. See Rec. Doc. 43-3. However, the absence of that fact
does not alter the outcome of the Court’s review.

3

and balance equities are discretionary and fact-specific. While
Defendant is correct that some courts have required plaintiffs to
conduct 30(b)(6) depositions of foreign corporate defendants in
the companies’ home countries, other courts in this Circuit have
reached the opposite conclusion. See, e.g., West v. Velo Enter.
Co., No. SA-13-CV-024-OLG, 2014 WL 12480008, at *2 (W.D. Tex. June
9, 2004); Advanced Tech. Incubator, Inc. v. Sharp Corp., No: 2:07CV-468, 2008 WL 4663568, at *3-4 (E.D. Tex. Oct. 21, 2008);
Mediatek, Inc. v. Sanyo Elec. Co., No. 6:05 CV 323, 2006 WL
5709449, at *2 (E.D. Tex. Aug. 9, 2006). The specific facts of
this case do not leave the Court “with a definite and firm
conviction that a mistake has been committed” by the magistrate
judge. Omega Hosp., LLC v. Cmty. Ins. Co., 310 F.R.D. 319, 320
(E.D. La. 2015).
All of the attorneys enrolled in the above-captioned matter
are located in New Orleans. See Mediatek, 2006 WL 5709449, at *2
(reasoning that presence of counsel for both parties in the city
where the deposition is held would facilitate scheduling). At this
time,

Defendant

witness.

See

has

Rec.

only

Doc.

named

34-2

at

one

corporate

16;

see

also

representative
Advanced

Tech.

Incubator, 2008 WL 4663568, at *4 (fact that only two witnesses
would need to travel for deposition in United States weighed in
favor of holding deposition in United States). The parties have
demonstrated little ability to resolve discovery disputes on their
4

own, suggesting that judicial intervention may be required during
the corporate deposition. See Rec. Docs. 14; 16; 47; see also West,
2014 WL 12480008, at *2 (explaining that concern about resolving
discovery disputes weighs in favor of holding deposition in United
States); Mediatek, 2006 WL 5709449, at *2 (same). For example, a
second motion to compel production of discovery will soon be heard
before Magistrate Judge Knowles. See Rec. Doc. 48. Moreover, of
the parties, Defendant is better able to absorb the Plaintiffsubsidized expense of traveling for a deposition.
That is not to say that Defendant’s arguments are meritless.
It is certainly possible to conduct a competent American-style
deposition
Defendant’s

in

Germany.
corporate

And

the

Court

representative

does
will

not

doubt

suffer

that
some

inconvenience in traveling to New Orleans for the deposition. But
these countervailing facts do not render the order at issue
“clearly erroneous” or “contrary to law.” Moreover, the order is
limited to the location of the currently contemplated 30(b)(6)
deposition and specifically reserves the question of where any
other depositions should occur in the future. See Rec. Doc. 30 at
11.
New Orleans, Louisiana, this 12th day of March, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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