Davis et al v. Bamford, Inc. et al

Filing 48

ORDER - IT IS ORDERED that plaintiffs' motion for protective order 42 is granted. Defendants shall conduct the depositions of plaintiffs at Fee, Smith, Sharp & Vitullo, LLP, Three Galleria Tower, 13155 Noel Road, Suite 1000, in Dallas, Texas. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BOBBY DAVIS, BRENDA DAVIS,
and GEOFFREY DAVIS,

)
)
)
Plaintiffs,
)
)
v.
)
)
BAMFORD, INC. and NANCY MARET )
PACKER, Personal
)
Representative of the ESTATE )
OF MICHAEL PACKER,
)
)
Defendants.
)
______________________________)

8:11CV69

ORDER

This matter is before the Court on plaintiffs’ motion
for protective order pursuant to Federal Rule of Civil Procedure
26(c) (Filing No. 42).

Defendants seek to compel plaintiffs’

attendance at depositions in Omaha, Nebraska, scheduled for
November 28-29, 2011.

Plaintiffs live in Texas.

Plaintiffs have

submitted affidavits outlining the difficulties they would have
if required to attend depositions in Nebraska, including medical,
physical, financial, and work-related problems (Filing No. 46).
“Ordinarily, plaintiff will be required to make himself
or herself available for examination in the district in which
suit was brought.

Since plaintiff has selected the forum, he or

she will not be heard to complain about having to appear there
for a deposition.”

8A Charles Alan Wright et al., Federal

Practice and Procedure § 2112 (3d ed. 2010).

“At best, however,

this is a general rule which is subject to exception, when the

plaintiff can make a compelling showing that its application
would impose an unduly heavy burden . . . .”

Archer Daniels

Midland Co. v. Aon Risk Services, Inc., 187 F.R.D. 578 (D.Minn.
1999).

“It is well settled that the district court has great

discretion in designating the location of taking a deposition
. . . .”

Thompson v. Sun Oil Co., 523 F.2d 647 (8th Cir. 1975).
Plaintiffs selected the forum of the District of

Nebraska for their suit only because the highway accident that is
the focus of the suit occurred in Nebraska and defendants reside
in Nebraska.

Plaintiffs likely had no other real option as to

another jurisdiction.

The Court finds that plaintiffs have made

a “compelling showing” as to “the unduly heavy burden” imposed by
attending the deposition in Omaha.

Accordingly,

IT IS ORDERED that plaintiffs’ motion for protective
order is granted.

Defendants shall conduct the depositions of

plaintiffs at Fee, Smith, Sharp & Vitullo, LLP, Three Galleria
Tower, 13155 Noel Road, Suite 1000, in Dallas, Texas.
DATED this 22nd day of November, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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