SEARCH MARKETING GROUP, INC. v. JUNK A CAR, INC. et al

Filing 116

OPINION & ORDER; Plaintiff is to produce Mr. Berger for a deposition at Defendants' counsel's office in Goshen, New York by May 7, 2019; and upon completion of this deposition, the parties shall file a letter on the docket indicating how they wish to proceed; etc. Signed by Judge John Michael Vazquez on 4/23/2019. (sms)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SEARCH MARKETING GROUP. INC.. and
DAVID BERGER.
PlaintUf.

Civil Action No. 17-1840 (JMV) (JBC)

V.

OPINION & ORDER
JUNK A CAR, INC., JUNK A CAR
NATIONWIDE INC., PETER GREENBLUM,
ISAAC MEIR RESNICK, ROBERT VOGEL,
JACLYN VICTOR, JEFFREY FORMAN, and
INTERCTIVE LIMITED,
Defrndants.

John Michael Vazguez, U.S.D.J.
On March 8,2019, the Court denied without prejudice Defendants’ request for temporary
restraints enjoining Plaintiffs from restricting Defendants’ control over the domain name
www.rustysautosalvage.com and ordered expedited discovery to be completed by March 29,2019.
D.E. 106. By letters dated April 1, 2019 and April 18, 2019, Defendants notified the Court that
the parties have failed to comply with this expedited discovery timeline because of a disagreement
over where Defendants can depose Plaintiff David Berger, a principal of Plaintiff Search
Marketing Group, Inc. D.E. 112, 114. Defendants’ counsel wishes to conduct the deposition at
his office in Goshen. New York. and Plaintiffs’ counsel wants that the deposition be conducted at
his office in Englewood Cliffs. New Jersey. Id. The Court then held a telephone conference with
counsel on April 23, 2019.

“Rule 30(b)(1) is clear in that ‘the location designated for the taking of a deposition is
solely within the discretion of the court, thereby requiring each application to be considered on its
own facts and equities.” Campbell v. Sedgwick Detert, Moran & Arnold, No. 11-642, 2013 WL

1314429, at * 12 (D.N.J. Mar. 28, 2013) (quoting Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94,
97 (S.D.N.Y. 1968)). There is a “general rule” that the “location of a corporate party’s deposition
•

.

.

ordinarily takes place at the corporate party’s principal place of business,” but

“[n]otwithstanding the generally recognized nile, courts have often required corporate defendants
to produce their officers or agents for depositions at locations other than the corporation’s principal
place of business where there has been no showing that the defendant will suffer any resulting
financial hardship.” Id. (citing South Seas ‘atamaran, Inc.

i

Motor Vessel ‘Leeway”, 120 F.R.D.

17,21 n, 5 (D.N.J. 1988)). The Court can also consider the following factors:
location of counsel for the parties in the forum district, the number
of corporate representatives a party is seeking to depose, the
likelihood of significant discovery disputes arising which would
necessitate resolution by the forum court, whether the persons
sought to be deposed often engage in travel for business purposes,
and the equities with regard to the nature of the claim and the parties’
relationship.
Id. (quoting (‘adent Ltd.

i’.

3M Unitek C’orp., 232 F.R.D. 625, 629 (C.D. Cal. 2005)).

Here, in balancing the equities, The Court orders that Defendants’ deposition of Mr. Berger
take place at Defendants’ counsel’s office in Goshen, New York. It appears Defendants’ counsel
already produced his witness for deposition at Plaintiffs’ counsel’s office.

D.E. III at 2.

Defendants’ counsel represents that the two offices are only approximately fifty miles from each
other, resulting in a car ride of approximately one hour. Id. Plaintiffs have not produced any
evidence indicating a financial hardship in traveling to Defendants’ counsel’s office. At the same
time, Defendants’ counsel has indicated that the deposition will be more efficient at his office

7

because he will have better access to his files. Thus, the Court exercises its discretion and orders
that the deposition of Mr. Berger take place at Defendants’ counsel’s office in Goshen, New York
within two weeks.
The Court also strenuously urges both counsel to act professionally going forward. In the
end, neither counsel was correct

-

the Court could have ordered the deposition to take place at

either counsel’s office. Thus, Plaintiffs’ counsel lacked a legal basis to refuse to produce Mr.
Berger in defense counsel’s office. At the same time, given that defense counsel has repeatedly
emphasized the critical nature of this case to his client, defense counsel could have also taken Mr.
Berger’s deposition in a timely fashion at Plaintiffs’ counsel’s office. That being said, if either
counsel takes action in the future and does not have legal support for his action, the Court will
consider the imposition of sanctions.
For these reasons, and for good cause shown,
IT IS on this

23th

day of April, 2019,

ORDERED that Plaintiff is to produce Mr. Berger for a deposition at Defendants’
counsel’s office in Goshen, New York by May 7,2019; and it is further
ORDERED that upon completion of this deposition, the parties shall file a letter on the
docket indicating how they wish to proceed.

JOHf’ MICHAEL VAZ4 U.S.D.J.

3