MEMC Electronic Materials, Inc. et al v. Balakrishnan

Filing 25

ORDER denying 23 Motion to Compel. Signed by Judge Algenon L. Marbley on 5/8/2012. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MEMC ELECTRONIC MATERIALS,
et al.,
Plaintiffs,
v.
KARTHIK BALAKRISHNAN,

Defendant.

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Case No. 2:12-CV-344
JUDGE ALGENON L. MARBLEY
Magistrate Judge Norah McCann
King

DISCOVERY OPINION AND ORDER
I. INTRODUCTION
Plaintiffs MEMC Electronic Materials, Inc. and MEMC Pasadena, Inc. (collectively
referred to as “MEMC” or “Plaintiffs”) filed a Complaint and Application for a Temporary
Restraining Order against Defendant Karthik Balakrishnan (“Balakrishnan” or “Defendant”) on
April 18, 2012. (Doc. 1, 3.) In the Application for a Temporary Restraining Order, MEMC
sought to enjoin Balakrishnan from (1) violating his contractual obligations not to engage in
certain competitive activities, and (2) using or disclosing MEMC’s confidential, proprietary, and
trade secret information, as set forth in an agreement Balakrishnan and MEMC entered into on or
around August 10, 2009, in connection with his employment at MEMC. Balakrishnan formerly
served as a Director of Polysilicon Product Technology at MEMC in Pasadena, Texas, and now
works Iosil Energy Corporation, allegedly a competitor of MEMC, as its Senior Vice President
of Manufacturing and Engineering in Groveport, Ohio. In the Complaint, MEMC alleges that

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Balakrishnan left without formally informing MEMC of his planned departure, as well as under
suspicious circumstances.
After holding a Local Rule 65.1 Conference where both parties had the opportunity to be
heard, this Court granted Plaintiffs’ Application for a Temporary Restraining Order, set bond,
and set a date for the preliminary injunction hearing. (Doc. 8.) Balakrishnan thereafter filed an
Unopposed Motion to Continue Preliminary Injunction Hearing and Extend Temporary
Restraining Order, (Doc. 17), which this Court granted on April 30, 2012, (Doc. 19). The
preliminary injunction hearing is set for May 30, 2012.
This matter is before the Court on Balakrishnan’s Motion for an Order to Compel
Plaintiffs’ Deposition in Columbus, Ohio, (“Motion to Compel”). (Doc. 23.) During a
telephonic status conference that took place on May 3, 2012, the parties represented to the Court
that they were unable to resolve a discovery dispute related to the location of two depositions of
MEMC witnesses who will testify at the preliminary injunction hearing. Because discovery is
expedited in this case, (Doc. 10), the Court ordered Balakrishnan to submit support for his
position by close of business that day, May 3, 2012 (which he did in the Motion to Compel), and
Plaintiffs to do the same by close of business the next day, May 4, 2012.
According to Balakrishnan’s Motion to Compel, the first witness at issue, Steve
Wachnowsky, is the “Vice President and General Manager Polysilicon” at MEMC Electronic
Material, Inc. (Doc. 1.) Wachnowsky works and resides in St. Peters, Missouri, which is in the
St. Louis area. The second witness is a Federal Rule of Civil Procedure (“FRCP”) 30(b)(6)
witness who will testify as to the engineering and process technology aspects of Plaintiffs’ case,
and who Plaintiffs indicated to Balakrishnan is located in either St. Louis, Missouri or Houston,
Texas. In their Memorandum in Opposition to Defendant’s Motion to Compel Deposition of
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Plaintiffs’ Witnesses in Ohio, (“Memo in Opposition”), Plaintiffs indicate that they now
anticipate the second witness will be Milind Kulkarni, who presently works at MEMC’s
headquarters in St. Louis, where he also resides. MEMC also explains that Kulkarni is scheduled
to move to India on May 19, 2012. (Doc. 24.)
This Court has reviewed the parties’ briefs, and for the reasons set forth below, hereby
DENIES Balakrishnan’s Motion to Compel.
II. LAW AND ANALYSIS
FRCP 30(b)(1) states in pertinent part: “A party who wants to depose a person by oral
questions must give reasonable written notice to every other party. The notice must state the time
and place of the deposition and, if known, the deponent's name and address.” The default rule,
therefore, is that the examining party “may set the place for the deposition of another party
wherever he or she wishes subject to the power of the court to grant a protective order under
Rule 26(c)(1)(B) designating a difference place.” Charles Alan Wright, Arthur R. Miller, Mary
Kay Kane, & Richard L. Marcus, Federal Practice and Procedure § 2112 (3d ed. 2012).
Although the issue in this case is framed in Defendant’s Motion to Compel, because
FRCP 30(b)(1) permits the party noticing the deposition to initially select the place of the
deposition, as Balakrishnan calls attention to, it is Plaintiffs who are actually seeking protection
from Balakrishnan’s location selection. (Doc. 23); see The Scooter Store, Inc. v. Spinlife.com,
LLC, No. 2:10-cv-18, 2011 WL 2118765, at *1 (S.D. Ohio May 25, 2011) (same procedural
posture). To do so, MEMC must demonstrate that good cause exists under FRCP 26(c)(1),
namely, to protect them from “annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(b)(c)(1). Moreover, “[a] motion for a protective order not to have a
deposition at a particular site, or to compel deposition in a particular location, is considered by
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reviewing three factors of the cost, convenience, and litigation efficiency of the designated
locations.” The Scooter Store, 2011 WL 2118765, at *2 (citing Sloniger v. Deja, No. 09-CV858S, 2010 WL 5343184, at *5 (W.D.N.Y. Dec. 20, 2010)); see Brockway v. Veterans Admin.
Healthcare Sys., No. 3:10-cv-719, 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011); Buzzeo v.
Board of Educ., Hempstead, 178 F.R.D. 390, 393 (E.D.N.Y. 1998).
Both Wachnowsky and the FRCP 30(b)(6) witness are being deposed in their capacity as
corporate officers or representatives of MEMC. (See Doc. 21 (“Defendant . . . will take the
deposition of Steve Wachnowsky, Vice President/General Manager at MEMC Electronic
Materials, Inc., in his capacity as an officer, director, and/or managing agent for Plaintiffs”), 22
(“the undersigned will take the deposition, . . . of the representative(s) of Plaintiffs’ most
knowledgeable about the following topics [related to MEMC]”.) As a result, in addition to the
factors listed above, this Court must also consider the presumption that the deposition of a
corporation by its agents and officers should ordinarily be taken at its principal place of business.
The Scooter Store, 2011 WL 2118765, at *2 (citations omitted); Thomas v. Int’l Bus. Mach., 48
F.3d 478, 483 (10th Cir. 1995) (explaining that ordinarily, the deposition of a corporation by its
agents should be done at its principal place of business). “This customary treatment is subject to
modification, however, when justice requires.” Charles Alan Wright, Arthur R. Miller, Mary
Kay Kane, & Richard L. Marcus, Federal Practice and Procedure § 2112 (3d ed. 2012). District
courts have great discretion in designating the location of taking a deposition. Thompson v. Sun
Oil Co., 523 F.2d 647, 648 (8th Cir. 1975) (per curiam); Tomingas v. Douglas Aircraft Co., 45
F.R.D. 94, 97 (S.D.N.Y. 1968).
Therefore, mindful of these default rules, Plaintiffs’ burden, and the fact that district
courts have great discretion to determine the location of a deposition, this Court will now
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consider the three relevant factors: cost, convenience, and litigation efficiency. See The Scooter
Store, 2011 WL 2118765, at *2.
A. Cost
Balakrishnan argues that the cost factor should weigh in his favor because he is an
individual being forced to defend this litigation with his own funds against MEMC, whereas
MEMC is a global leader in its field with significant capital and assets. Plaintiffs rebut that
Balakrishnan has not alleged that he will be unable to bear the costs should the deposition occur
outside of Columbus. MEMC also points out that it would be more expensive to send its counsel
and two witness to Columbus for a deposition than it would be for Defendant’s counsel to travel
to St. Louis.1
Neither party has alleged that it will be unable to bear the costs associated with these two
depositions. This Court is persuaded that the cost factor weighs in favor of MEMC, as it will be
less expensive to send one or two attorneys to St. Louis to take depositions, than it will be to
send one or two attorneys, and two witnesses, to Columbus to be deposed.
B. Convenience
Balakrishnan argues that asking the corporate officers and representatives of MEMC to
come to Columbus creates no undue inconvenience because the depositions will be limited to
one day of seven hours, and Columbus is not a remote location from either Missouri or Texas.
Moreover, as corporate officers or representatives, these witnesses are most likely familiar with
business travel and have sufficient means to maintain contact with their workplace while away.

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In his Motion to Compel, Balakrishnan noted that MEMC’s local Ohio counsel, Roetzel & Andress
LPA, was trial counsel and would, therefore, be taking the depositions of the witnesses. MEMC’s Memo
in Opposition clarifies that its trial counsel is Bryan Cave LLP, located in St. Louis, who will be taking all
of the deposition.
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MEMC argues that while it would not be cumbersome for counsel for Balakrishnan to travel to
St. Louis to take the depositions, it would be inconvenient if Defendant were allowed to summon
any number of MEMC’s employees to Columbus simply through notice of deposition. MEMC
also points out that Kulkarni, the witness MEMC anticipates identifying as its FRCP 30(b)(6)
witness, is scheduled to move to India on May 19, 2012, and, as a result, traveling to Columbus
for a deposition shortly prior to his international move would be incredibly inconvenient.
Factors relevant for this Court to consider when conducting the convenience analysis
include: “any hardship to counsel, the residence of deponents, and the extent to which the
witness’ affair might be disrupted.” The Scooter Store, 2011 WL 2118765, at *2 (citing Devlin
v. Transp. Commc’n Int’l Union, No. 95-cv-0752, 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14,
2000)). Again, it is more convenient to send one or two attorneys to St. Louis to take
depositions, than it is to send one or two attorneys, and two witnesses, to Columbus to be
deposed. Furthermore, both witnesses reside and work in the St. Louis area, and MEMC has
indicated that Kulkarni’s move to India would be disrupted if he were required to travel to
Columbus shortly prior. This Court also notes that, to the extent the parties need to access any
corporate documents during the depositions, it may be easier to access such documents in
Missouri, where MEMC Electronic Materials, Inc.’s headquarters is located. The convenience
factor, thus, weighs in favor of having the depositions in St. Louis.
C. Litigation Efficiency
Finally, Balakrishnan argues that litigation efficiency weighs in his favor because
Missouri and Texas are in different time zones than Ohio, which could affect the ability of the
parties to involve the Court in deposition disputes as they happen. Plaintiffs rebut that a one
hour time difference is insignificant, and the parties can certainly contact the Court via telephone
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if necessary. The Court agrees that the one-hour time difference is insignificant, and will be
available by phone if necessary.
All of the factors weigh in favor of having the depositions in St. Louis. The presumption
that depositions of a corporation by its agents and officers should ordinarily be taken at its
principal place of business reinforces this Court’s conclusion. See The Scooter Store, 2011 WL
2118765, at *2 (citations omitted); Thomas, 48 F.3d at 483.
III. CONCLUSION
For the reasons stated above, Balakrishnan’s Motion to Compel is DENIED.

IT IS SO ORDERED.
s/ Algenon L. Marbley
Algenon L. Marbley
United States District Judge
Dated: May 8, 2012

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