ECKLES v. UNITED STATES OF AMERICA

Filing 20

MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 9/10/12, that Plaintiff's Motion for Protective Order - Rule 26(c) (Docket Entry 16 ) is DENIED. FURTHER that the Parties' Joint Motion for Expedited Resolution of Discovery Dispute (Docket Entry 19 ) is DENIED AS MOOT. (Law, Trina)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JUANITA SUE ECKLES, as
Administrator of the Estate
of Ronald David Eckles,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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1:11CV459

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for disposition of (1) Plaintiff’s Motion for
Protective Order - Rule 26(c) (Docket Entry 16); and (2) the
Parties’ Joint Motion for Expedited Resolution of Discovery Dispute
(Docket Entry 19).

(See Docket Entry dated Aug. 31, 2012.)

For

the reasons that follow, the Court will deny Plaintiff’s Motion for
Protective Order - Rule 26(c) and deny the Parties’ Joint Motion
for Expedited Resolution of Discovery Dispute as moot.
BACKGROUND
Plaintiff brought suit in this district against the United
States alleging medical malpractice on the part of the Durham
Veterans Administration Medical Center resulting in the death of
her husband.

(See Docket Entry 1.)

During discovery, Defendant

served Plaintiff a Second Amended Notice of Deposition noticing
Plaintiff’s deposition for August 8, 2012, in Greensboro, N.C.

(See Docket Entry 16-1.)

Plaintiff filed the instant Motion for

Protective Order contending that requiring Plaintiff to travel to
North Carolina from her home in Florida to attend that deposition
constitutes an “undue burden or expense” under Rule 26(c)(1) of the
Federal Rules of Civil Procedure.
In

connection

with

that

(See Docket Entry 17 at 3.)1

Motion,

Plaintiff

has

filed

an

affidavit attesting that she currently works as a sales associate
for 35 hours per week and if required to travel, “she would have to
request at least [] 3 days [off] from work which would cost her
$196.00, [sic] in lost wages” in addition to the requisite travel
expenses.

(See Docket Entry 16-2, ¶¶ 5, 6.)

She also notes that

her attendance at an earlier mediation has already required her to
pay a substantial amount in travel expenses and to take additional
time off of work.

(See id.; Docket Entry 17 at 2.)

Moreover,

through her brief, Plaintiff contends that because she previously
attended

that

in-person

mediation

with

Defendant,

concerns

regarding Defendant’s ability to observe Plaintiff’s demeanor and
mannerisms during the course of the deposition are minimized. (See
Docket Entry 17 at 4.) Plaintiff requests that her deposition take
place near her home in Florida or by way of video conference.

(See

id. at 6.)

1

The Parties’ Joint Motion for Expedited Resolution of
Discovery Dispute merely seeks to quicken this Court’s resolution
of Plaintiff’s Motion for Protective Order. (See Docket Entry 19.)
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Defendant

opposes Plaintiff’s

Motion

on

several

grounds.

Initially, Defendant contends that Plaintiff should be required to
attend her deposition in the forum in which she filed suit.
Docket Entry 18 at 5-6.)

(See

Defendant also contends that Plaintiff

has failed to show good cause for the requested protective order.
(See id. at 9-10.)

Moreover, Defendant argues that, even if

Plaintiff has shown good cause, Defendant would be prejudiced
because Plaintiff’s deposition, as it relates to the death of
Plaintiff’s husband, is likely to be “emotionally charged” and,
accordingly,

video

deposition

Plaintiff’s mannerisms.

is

ill-suited

(Id. at 11.)

for

observing

Relatedly, Defendant argues

that it was not on notice at the time of the earlier mediation
(which Defendant notes was voluntary and conducted at Plaintiff’s
suggestion

(see

id.

at

7))

that

it

might

not

have

further

opportunity to examine Plaintiff in person and thus should not be
denied that opportunity now.

(See id. at 7.)

Finally, Defendant

contends that requiring it to conduct a deposition via video
conference

would

create

difficulties

documents necessary to the deposition.

in

referencing

certain

(See id. at 10.)

DISCUSSION
Rule 26(c) of the Federal Rules of Civil Procedure provides
that “[t]he court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense . . . .”

Fed. R. Civ. P. 26(c)(1).

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In the case

of

a

plaintiff

“[g]enerally,

challenging

plaintiffs

the

‘must

location

make

of

her

themselves

deposition,

available

examination in the district in which suit was brought.’”

for

Webb v.

Green Tree Servicing LLC, ___ F.R.D. ___, ___, 2012 WL 2899382, at
*2 (D. Md. 2012) (quoting EEOC v. Denny’s Inc., No. WDQ-06-2527,
2009 WL 3246940, at *1 (D. Md. Oct. 2, 2009) (unpublished))
(additional quotation marks and citation omitted).

“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, or that the overall efficiency
of the discovery process would be better served by deposing the
plaintiff, and its agents, outside of the forum District.”

Archer

Daniels Midland Co. v. AON Risk Servs. Inc. of Minn., 187 F.R.D.
578, 588 (D. Minn. 1999).
Here, Plaintiff has failed to make a showing sufficient to
overcome the general rule that she should attend her deposition in
the forum in which she brought suit.

Although Plaintiff may incur

burden and expense in traveling to North Carolina, “[d]epositions
usually involve some burden to all participants.

They often

involve expense for transportation, sometimes overnight lodging,
and often some loss of income.

Such expense and loss constitute

part of the ordinary burden or litigation that each party must
bear.

Only in unusual circumstances would the Court shift the

ordinary burden of litigation to the opposing party.”

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Clayton v.

Velociti, Inc., Civil Action No. 08-2298-CM/GLR, 2009 WL 1033738,
at *3 (D. Kan. Apr. 17, 2009) (unpublished).

Even taking into

account Plaintiff’s prior expenses related to attending mediation
in North Carolina, Plaintiff’s instant showing - that she would
have to take three days off of work and would lose that income in
addition to the cost of travel - does not appear unusual in any
way. Plaintiff has not contended, for example, that she would lose
her job by attending the deposition, that she lacks funds to pay
the travel expenses, or that she suffers some physical impediment
that

would

create

an

obstacle

to

her

attendance.

In

fact,

Plaintiff has not advised the Court of her overall financial
situation in any respect.

(See Docket Entries 16, 16-2, 17.)

Under these facts, Plaintiff has failed to meet the good cause
standard of Rule 26(c).2
CONCLUSION
Plaintiff has not presented a sufficient showing for this
Court to issue a protective order pursuant to Rule 26(c).

Given

the Court’s disposition on Plaintiff’s Motion, the Parties’ Joint
Motion to Expedite requires no further comment.

2

Plaintiff cites Jahr v. IU Int’l Corp., 109 F.R.D. 429
(M.D.N.C. 1986) (Eliason, M.J.), in support for her position that
the Court should permit a telephonic, or video, deposition. (See
Docket Entry 17 at 5.) Jahr, however, involved the deposition of
a witness as opposed to a plaintiff. See Jahr, 109 F.R.D. at 430.
In fact, Magistrate Judge Eliason highlighted that distinction in
making his determination. Id. at 431.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Protective
Order - Rule 26(c) (Docket Entry 16) is DENIED.
IT IS FURTHER ORDERED that the Parties’ Joint Motion for
Expedited Resolution of Discovery Dispute (Docket Entry 19) is
DENIED AS MOOT.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 10, 2012

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