Berthelot, et al v. Andreas Fahl Medizintechnik-Vertrieb GmbH
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.
ANDREAS FAHL MEDIZINTECHNIKVERTRIEB GMBH
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
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
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
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.
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)).
system by securing FDA approval for sale of its products in
the United States; (2) both parties’ counsel are located in New
Orleans for the deposition; (4)
Plaintiffs have agreed to offset some of the costs of conducting
intervene during the deposition because of the parties’ ongoing
depositions at the United States consulate in Germany requires
approvals.1 See Rec. Doc. 30 at 9-10.
a foreign corporate defendant to produce a representative for
deposition in the United States. See Martin, 292
Legal tests that require a court to weigh a
multitude of factors
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.
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
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
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
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
New Orleans, Louisiana, this 12th day of March, 2018.
SENIOR UNITED STATES DISTRICT JUDGE
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