Su v. Sotheby's Inc.

Filing 144

MEMORANDUM OPINION AND ORDER: re: 140 FIRST LETTER MOTION to Compel Wei Su and Hai Juan Wang to appear for in-person pre-trial deposition addressed to Judge Valerie E. Caproni from Pedro Medina, Jr. dated August 12, 2019. FIRST LETTER MOTION fo r Discovery addressed to Judge Valerie E. Caproni from Pedro Medina, Jr. dated August 12, 2019. filed by Yeh-Yao Hwang, Yeo Hwang Yeh. For the reasons discussed below, Plaintiffs' motion for a protective order is DENIED, and Yeh's motion to compel is GRANTED IN PART. In sum, the Court holds that, on balance, Plaintiffs have not carried their burden of showing good cause for a protective order; their motion is, therefore, DENIED. The Court, however, is not insensitive to Plaintiffs� 39; inconvenience and potential family and health considerations. For that reason, the parties are directed to meet and confer, in good faith, as to alternative locations within the United States that may be more amenable to Plaintiffs' needs, s uch as California or Hawaii, should Plaintiffs agree to bear Yeh's costs for conducting any such depositions outside of New York. Yeh's motion to compel depositions is therefore GRANTED IN PART, to the extent that such depositions must occu r within the jurisdiction of the United States. No later than September 6, 2019, Plaintiffs and Yeh must file a joint letter with the Court, after the required meet-and-confer, updating the Court on their resolution or respective positions as to the time and place of Plaintiffs' depositions. The joint letter must also indicate whether the current deadline of September 30, 2019, for the completion of fact discovery remains feasible; if not, the parties must propose a revised discovery schedule for the Court's approval. The Clerk of Court is respectfully directed to terminate any pending motions at docket entries 140 and 142. And as set forth herein. SO ORDERED. (Signed by Judge Valerie E. Caproni on 8/28/2019) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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WEI SU and HAI JUAN WANG,
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Plaintiffs,
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-against:
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SOTHEBY’S, INC.,
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Defendant.
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SOTHEBY’S, INC.,
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Counter-Claimant,
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-against:
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WEI SU, HAI JUAN WANG, and YEH YAO HWANG
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Counterclaim-Defendants,
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YEH YAO HWANG,
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Cross-Claimant,
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-against:
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WEI SU and HAI JUAN WANG,
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Cross-Defendants,
:
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WEI SU and HAI JUAN WANG,
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:
Cross-Claimants,
:
:
-against:
:
YEH YAO HWANG,
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Cross-Defendant,
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 08/28/2019

17-CV-4577 (VEC)
MEMORANDUM OPINION
AND ORDER

VALERIE CAPRONI, United States District Judge:
Counterclaim-Defendant, Cross-Claimant, and Cross-Defendant Yeh Yao Hwang
(“Yeh”) moves to compel Plaintiffs, Counterclaim-Defendants, Cross-Defendants, and CrossClaimants Wei Su and Hai Juan Wang (collectively “Plaintiffs”) to appear for a deposition in
New York, Dkt. 140. Plaintiffs oppose based on undue hardship and have cross-moved for a
protective order directing that their depositions be taken remotely, via video-conference, from
Shanghai, China. Dkt. 142. For the reasons discussed below, Plaintiffs’ motion for a protective
order is DENIED, and Yeh’s motion to compel is GRANTED IN PART.
“There is a general presumption that a plaintiff who chooses a particular forum should be
prepared to be deposed in that forum.” Connell v. City of New York, 230 F. Supp. 2d 432, 436
(S.D.N.Y. 2002) (citing Clem v. Allied Van Lines Int’l Corp., 102 F.R.D. 938, 939
(S.D.N.Y.1984) (“[T]his Court has long enunciated the policy of requiring a non-resident
plaintiff who chooses this district as his forum to appear for deposition in this forum absent
compelling circumstances.”)); see, e.g., Restis v. Am. Coal. Against Nuclear Iran, Inc., No. 13CV-5032, 2014 WL 1870368, at *3 (S.D.N.Y. Apr. 25, 2014) (“Since plaintiff has selected the
forum, he or she will not be heard to complain about having to appear there for [a] deposition.”
(citing 8A Wright, Miller & Marcus Fed. Practice & Procedure Section 2112 (3d ed.2010)));
MPD Accessories B.V. v. Target Corp., No. 12-CV-7259, 2013 WL 1200359, at *1 (S.D.N.Y.
Mar. 1, 2013) (citing Clem, 102 F.R.D. at 939). Additionally, “[w]ith respect to the location of a
deposition, as a general rule, ‘the party who notices a deposition is entitled to choose its
location.’” Hui Wang v. Omni Hotels Mgmt. Corp., No. 18-CV-2000, 2019 WL 2083296, at *3
(D. Conn. May 13, 2019) (quoting Brockway v. Veterans Admin. Healthcare Sys., No. 10-CV719, 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011)) (collecting cases).

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The Court may, however, designate the time, place, and manner of a deposition for good
cause. See Fed. R. Civ. P. 26(c)(1)(B) (“The court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression, or undue burden or expense . .
.[by] specifying terms, including time and place or the allocation of expenses, for the disclosure
or discovery.”), 30(b)(4) (“[T]the court may on motion order [] that a deposition be taken by
telephone or other remote means.”); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65,
69–70 (2d Cir. 2003) (“[A]lthough a party seeking a deposition need not demonstrate the
propriety of its request, judges may prevent the proposed deposition when the facts and
circumstances are such that it creates an inappropriate burden or hardship.”). A plaintiff resisting
deposition or seeking a protective order bears the burden of showing good cause. Hui Wang,
2019 WL 2083296, at *8 (citing United States v. Hooker Chemicals & Plastics Corp., 90 F.R.D.
421, 425 (W.D.N.Y. 1981)). To determine whether that burden has been met, the Court must
consider “cost, convenience, and litigation efficiency,” balancing the expected prejudice and
hardship to the interested parties. Buzzeo v. Bd. of Educ., Hempstead, 178 F.R.D. 390, 393
(E.D.N.Y. 1998) (“[A]n analysis of cost, convenience and litigation efficiency [] is the
appropriate standard under which to evaluate the motion.”); Normande v. Grippo, No. 01-CV7441, 2002 WL 59427, at *1 (S.D.N.Y. Jan. 16, 2002) (“[C]ourts must strive to achieve a
balance between claims of prejudice and those of hardship.”).
Because Plaintiffs chose to file suit in this district (and are the party moving for a
protective order), they bear the burden of showing the existence of good cause to excuse their
presumptive obligation to be deposed in New York. Plaintiffs argue, however, that they should
be relieved of that obligation because they originally sued Defendant Sotheby’s, Inc., not Yeh;
Yeh only joined the suit as a result of Sotheby’s interpleader action. While that recitation of the
procedural history of the case may be accurate, whether Plaintiffs are being deposed by
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Sotheby’s or by Yeh is irrelevant to Plaintiffs’ burden. The general rule that a plaintiff should
bear any inconvenience arising out of litigating in their choice of forum is rooted in fairness: as
between a plaintiff and any other party, the plaintiff has the greatest latitude in choosing the most
convenient forum. See Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989)
(“[A] plaintiff must generally submit to deposition in the district where he has commenced
litigation.”); Fed. Deposit Ins. Co. v. La Antillana, S.A., No. 88-CV-2670, 1990 WL 155727, at
*1 (S.D.N.Y. Oct. 5, 1990) (“The rationale . . . is that plaintiff has had the liberty of bringing the
suit and has exercised choice as to the action’s forum; because defendants are not before the
Court by choice, it is the plaintiff who should bear any reasonable burdens of inconvenience that
the action presents.”). By commencing litigation in this district (and by transacting with
Sotheby’s in this district), Plaintiffs should have reasonably anticipated being required to appear
in this district for depositions or other proceedings, including trial. Absent a showing that being
deposed by Yeh is somehow significantly more burdensome than what Plaintiffs could have
reasonably contemplated based on their lawsuit against Sotheby’s, Plaintiffs’ efforts to displace
the presumption are without merit.1
Plaintiff Wang claims hardship based on generalized familial obligations and her
employment in Shanghai. Dkt. 142-2 at 2. She does not cite financial hardship or provide any
evidence of indigence. See id. Wang’s circumstances cannot suffice as an exception to the
general rule because virtually every non-resident plaintiff is likely to have some type of family or

Plaintiffs also contend, incorrectly, that their motion should “presumptively be granted” pursuant to Local
Civil Rule 30.2. The text of Rule 30.2 clearly refers to a motion made by the party noticing a remote deposition, not
a motion for a protective order made by the deponent. Local Civ. R. 30.2 (“The motion of a party to take the
deposition of an adverse party by telephone or other remote means will presumptively be granted.” (emphasis
added)). Plaintiffs’ argument on this point is therefore unavailing at best and misleading at worst.
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employment obligations outside the district.2 Because Wang has not explained how a brief
absence of a few days would be unusually burdensome on her family or her employment,3 the
Court finds that Wang has not demonstrated good cause for a protective order and that an order
compelling her deposition in the United States is appropriate. See Hui Wang, 2019 WL
2083296, at *8 (“To provide ‘good cause’ for her motion, Plaintiff must present the specific
facts that give rise to her hardship.” (emphasis in original)).
Plaintiff Su’s alleged hardship is primarily his health concerns, but his argument suffers
from multiple defects that undercuts its weight. According to Su’s affidavit, traveling to New
York “would endanger [his] life.” Dkt. 142-3 at 2. His medical note, however, issued by the
Luoyang Massage Hospital, states that Su, who is 46 years old, is “not suit[ed] to travel by air,
high-speed railway and other means of transportation.” Dkt. 142-3 at 4. Although Su’s doctor
appears to have diagnosed him with a disc herniation and arteriosclerosis, the note does not
provide any details as to Su’s symptoms—or how his conditions may be life-threatening.
Moreover, the note, dated August 15, 2019, is not accompanied by any pre-litigation medical
history or diagnosis. Further undermining the medical opinion that Su is not suited to travel by
any “means of transportation,” apparently for the rest of his life, is Su’s own proposal to be
deposed in Shanghai, which is more than 10 hours away from the Luoyang Massage Hospital by

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Wang also claims that her deposition will be of little value—and therefore Yeh will not be prejudiced by
any limitations on the mode of the deposition. The Court finds it premature to determine whether Wang, who filed
this action, is not a material witness before she can be deposed.
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Nor can the Court infer any such hardship because Wang does not disclose the ages of her dependents, their
conditions, whether she has a spouse or siblings who can assist in shouldering her burden while she is away, or the
nature of her job. Nor does Wang contend that she cannot afford childcare or other domestic help during her brief
absence.

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car.4 For those reasons, although medical reasons can sometimes constitute good cause, the
Court finds that Su has failed to make an adequate showing. 5
Moreover, Su’s purported health condition cannot outweigh competing considerations of
prejudice and litigation efficiency. Although Plaintiffs contend that Yeh will not be prejudiced
in any way, conducting a remote deposition in this case presents numerous logistical difficulties.
See Memory Film Prods. v. Makara, No. 05-CV-3735, 2007 WL 1385740, at *3 (E.D.N.Y. May
9, 2007) (“The court finds that an in-person deposition is also preferable in terms of ensuring the
accuracy of the depositions and interpretations, and avoiding the prejudice and expenses [that
Defendant] would face were she required to conduct the depositions . . . by telephone, across
continents and time zones.”). In addition, Plaintiffs’ proposal consists almost entirely of a claim
that WeChat and Zoom are reliable technologies, without any regard for how Rule 28(b)
requirements would be satisfied in a way that does not run afoul of Chinese law. According to
the United States Department of State, “China does not permit attorneys to take depositions in
China for use in foreign courts”; such depositions, “as a general matter, [may] only be
accomplished through requests to its Central Authority under the Hague Evidence Convention”;
“[c]onsular depositions would require permission from the Central Authority on a case by case
basis”; and “[p]articipation in [unapproved deposition] activity could result in the arrest,

4

The Complaint indicates that Plaintiffs reside in Shanghai. Dkt. 1¶¶ 1–2. The record does not disclose
whether Su traveled to the Luoyang Massage Hospital to be examined, whether he now resides in Luoyang and is
willing to travel to Shanghai for a deposition, or whether Su’s doctor rendered an opinion without conducting a
physical examination. Any of those scenarios would cast serious doubt on Su’s claim that his health prevents longdistance travel.
Su also claims, without any support or setting forth specific facts, that he is “currently unable to obtain a
visa.” Dkt. 142-3 at 2. The Court finds that Su’s conclusory statement does not constitute a specific showing of
good cause. See also MPD Accessories, 2013 WL 1200359, at *1 (rejecting argument that burden of obtaining visas
constitutes undue hardship on non-resident plaintiff).
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detention or deportation of the American attorneys and other participants.”6 Thus, as the record
stands today, there is a non-negligible risk that swearing an oath and answering deposition
questions, even those posed remotely,7 could violate Chinese law—an issue that Plaintiffs have
failed to address in proposing their alternative. At minimum, the Court would have to require
further briefing on whether Plaintiffs’ video deposition could subject the parties and their
attorneys to sanctions under Chinese law. And, if so, the parties would have to obtain approval
from China’s Central Authority, consistent with the Hague Evidence Convention, before
proceeding with a Shanghai-based deposition. All of the foregoing would cause delay and
prejudice.
In sum, the Court holds that, on balance, Plaintiffs have not carried their burden of
showing good cause for a protective order; their motion is, therefore, DENIED. The Court,
however, is not insensitive to Plaintiffs’ inconvenience and potential family and health
considerations. For that reason, the parties are directed to meet and confer, in good faith, as to
alternative locations within the United States that may be more amenable to Plaintiffs’ needs,
such as California or Hawaii, should Plaintiffs agree to bear Yeh’s costs for conducting any such
depositions outside of New York.8 Yeh’s motion to compel depositions is therefore GRANTED
IN PART, to the extent that such depositions must occur within the jurisdiction of the United

6

U.S. Department of State, Bureau of Consular Affairs, Judicial Assistance Country Information, China,
https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/China.html (last updated
May 1, 2009).
As a point of reference, for purposes of the Federal Rules of Civil Procedure, a remote deposition “takes
place” in the location where the answers are given. Fed. R. Civ. P. 30(b)(4) (“For the purpose of this rule and Rules
28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.”).
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To short-circuit any arguments over the meaning of “Yeh’s costs”, those costs include coach airfare, nonluxury hotel costs, local transportation, and meals for Yeh’s attorney (and Yeh, if he intends to attend the
deposition). Additionally, if the costs for an interpreter and a court reporter are higher in the chosen venue, the delta
between the costs of such services in the chosen venue and the costs of such services in New York is a cost the
Plaintiffs would be required to bear.
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States. No later than September 6, 2019, Plaintiffs and Yeh must file a joint letter with the
Court, after the required meet-and-confer, updating the Court on their resolution or respective
positions as to the time and place of Plaintiffs’ depositions. The joint letter must also indicate
whether the current deadline of September 30, 2019, for the completion of fact discovery
remains feasible; if not, the parties must propose a revised discovery schedule for the Court’s
approval.
The Clerk of Court is respectfully directed to terminate any pending motions at docket
entries 140 and 142.

SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: August 28, 2019
New York, New York

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