Cassidy v. The Teaching Company, LLC d/b/a The Great Courses
Filing
26
OPINION AND ORDER granting 21 Motion for Protective Order. Signed by Magistrate Judge Norah McCann King on 9/4/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SUSAN CASSIDY,
Plaintiff,
Civil Action 2:13-CV-884
Judge Graham
Magistrate Judge King
vs.
THE TEACHING COMPANY, LLC,
d/b/a THE GREAT COURSES,
Defendant.
OPINION AND ORDER
I.
Background
Plaintiff Susan Cassidy alleges that defendant engaged in
unlawful marketing practices based on its allegedly false advertised
regular price for its DVD courses.
residing in Columbus, Ohio.
Plaintiff is an individual
Amended Complaint, ECF 2, ¶ 6.
Defendant
The Teaching Company, LLC, d/b/a The Great Courses, is a limited
liability company with its principal place of business in Chantilly,
Virginia.
Id. at ¶ 8.
On July 2, 2014, plaintiff noticed a Rule
30(b)(6) deposition for a corporate representative of defendant to
take place in Dublin, Ohio, on July 30, 2014.
ECF 22-1.
This matter is now before the Court on Defendant’s Motion for
Protective Order (“Defendant’s Motion”), ECF 21, seeking an order
requiring the 30(b)(6) deposition of its corporate representative to
take place near Chantilly, Virginia.
Defendant argues that its
principal place of business is in Chantilly, Virginia, that all the
potential corporate representatives to be deposed reside in the
vicinity of Chantilly, Virginia, and that the corporate documents and
databases that may need to be accessed during the deposition are
located in Chantilly, Virginia.
Plaintiff opposes Defendant’s Motion,
Plaintiffs’ Memorandum Contra to Defendant’s Motion for Protective
Order (“Plaintiff’s Response”), ECF 22, on the basis that defendant
failed to make a good faith effort to resolve this dispute prior to
filing Defendant’s Motion.
Plaintiff also argues that defendant has
failed to demonstrate good cause for a protective order because
deposing defendant’s corporate representative in Columbus, Ohio, will
not cause defendant undue burden or expense.
II.
Discussion
“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.”
Fed. R. Civ. P. 30(b)(1).
“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 differen[t] place.’”
MEMC Elec. Materials
v. Balakrishnan, 2:12-CV-344, 2012 WL 1606053, at *2 (S.D. Ohio May 8,
2012) (quoting Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, &
Richard L. Marcus, Federal Practice and Procedure § 2112 (3d ed.
2012)).
Rule 26(c) 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).
“̔[A] motion for a protective order not to have a deposition at a
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particular site, or to compel deposition in a particular location, is
considered by reviewing three factors of the cost, convenience, and
litigation efficiency of the designated locations.’”
MEMC, 2012 WL
1606053 at *2 (quoting Scooter Store, Inc. v. Spinlife.com, LLC, 2:10CV-18, 2011 WL 2118765, at *2 (S.D. Ohio May 25, 2011)).
Where, as
here, an organization is being deposed pursuant to Rule 30(b)(6), the
“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.”
Id. at *2 (citing Scooter Store,
2011 WL 2118765 at *2; Thomas v. Int'l Bus. Machs., 48 F.3d 478, 482
(10th Cir. 1995)).
“̔This customary treatment is subject to
modification, however, when justice requires.’”
Practice and Procedure § 2112).
Id. (quoting Federal
District courts are vested with great
discretion in designating the location of a deposition.
See Lomax v.
Sears, Roebuck & Co., 238 F.3d 422 (6th Cir. 2000).
The party seeking a protective order must also certify that it
“has in good faith conferred or attempted to confer with the other
affected parties in an effort to resolve the dispute without court
action.”
Fed. R. Civ. P. 26(c)(1).
Plaintiff’s arguments to the
contrary notwithstanding, the Court is satisfied that this
prerequisite has been met.
Having determined that this matter is
properly before the Court, the Court will now consider the factors of
cost, convenience, and litigation efficiency.
Defendant represents that its corporate representatives reside in
Virginia and, although it has not designated a specific representative
or determined how many representatives will be needed, counsel from
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Chicago, Illinois, will be defending the corporate representatives
during their deposition.
Defendant’s Motion, pp. 5-6.
Defendant
argues that it will be more expensive to fly one or more corporate
representatives and counsel to Ohio for a deposition than it will be
for plaintiff to fly a single attorney to Virginia.
The Court agrees.
The cost factor weighs in favor of defendant, as it will likely be
less expensive for plaintiff’s counsel to travel to Virginia than for
one or more of defendant’s corporate representatives and their counsel
to travel to Ohio.
See MEMC, 2012 WL 1606053 at *3 (“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.”).
However, this factor weighs
only slightly in favor of defendant, since defendant will have to bear
its counsel’s travel expenses regardless of the location of the
deposition.
In considering the convenience factor, the Court should consider
“̔any hardship to counsel, the residence of deponents, and the extent
to which the witness' affairs might be disrupted.’”
MEMC, 2012 WL
1606053 at *3 (quoting Scooter Store, 2011 WL 2118765 at *2).
Here,
the parties have not identified any hardship to counsel regardless of
whether the deposition takes place in Ohio or Virginia.
As noted
supra, defendant’s corporate representatives all reside near
Chantilly, Virginia.
Deposing the representatives near their place of
residence and employment will undoubtedly be less disruptive to each
witness’ own affairs and to the defendant’s business.
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Moreover, to
the extent that the parties need to access corporate documents and
databases during the deposition, it may be easier to access such
information in Virginia, where defendant’s principal place of business
and those documents are located.
The convenience factor therefore
weighs in favor of conducting the deposition in Virginia.
Plaintiff seems to acknowledge that it would be less expensive
and more convenient to hold the deposition in Virginia. Plaintiff
argues, however, that the inconvenience and increased cost of holding
the deposition in Ohio is only marginal and does not constitute an
undue burden on defendant.
Citing to Scooter Store, plaintiff argues
that the parties to an action should expect to bear such reasonable
burdens and inconvenience as the action might pose.
Response, p. 9.
Plaintiff’s
Scooter Store does not support plaintiff’s argument.
In requiring that the plaintiff’s corporate representative be deposed
in the forum state, the court in Scooter Store actually noted,
“Generally, a plaintiff must bear any reasonable burdens of
inconvenience that the action represents.”
Scooter Store, 2011 WL
2118765 at *3 (emphasis added). To require a plaintiff to bear the
inconvenience of litigating in the forum chosen by plaintiff is not
determinative of a defendant’s request to relieve it of the burdens
posed by litigation in a forum selected by another party.
The fact that defendant’s corporate documents and electronically
stored information are located in Virginia also suggests that it would
be more efficient to hold the deposition in Virginia.
See id. at *4
(“With respect to the third factor of litigation efficiency, the Court
is advised to examine . . . the ease or difficulty of the parties and
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witnesses in bringing relevant documents to the site.”) (internal
quotations omitted).
Plaintiff argues, however, that litigation
efficiency favors Ohio because the Court has personal jurisdiction
over defendant.
Id.
Plaintiff cites to Shannon v. Taesa Airlines,
No. 2:93-cv-689, 1994 WL 921216 (S.D. Ohio Nov. 10, 1994), and argues
that “[t]his Court has held that having personal jurisdiction over a
party may be a determinative factor whether that party should be
deposed in the venue where the lawsuit was originally filed.”
Plaintiff’s Response, p. 11.
Plaintiff’s argument misconstrues the
holding in Shannon.
The court in Shannon recognized “the general rule that a
corporate defendant should be deposed at that defendant's place of
business” and found that the facts of that case did not warrant
departure from the general rule.
See Shannon, 1994 WL 931216 at *1-2.
In granting the defendant’s motion for a protective order and ordering
that a deposition proceed near the defendant’s principal place of
business outside the forum state, the court noted that the case
presented an unresolved issue of personal jurisdiction over the
defendant corporation.
See id.
Although uncertainty as to whether a
court has personal jurisdiction over a defendant may provide support
for requiring a defendant’s corporate representative to be deposed
outside the forum and near the defendant’s principal place of
business, the fact that personal jurisdiction is not disputed does not
require that a deposition be conducted in the forum state.
Litigation
efficiency deals with the court’s “own ability to intervene to resolve
disputes during depositions” and “the ease or difficulty of the
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parties and witnesses in bringing relevant documents to the site.”
See Scooter Store, 2011 WL 2118765 at *4.
Here, should the need arise
during a deposition, the parties can just as easily contact the Court
by telephone from Ohio as they can from Virginia, and, as noted supra,
it would be more efficient for the deposition to take place near
defendant’s principal place of business where its documents and
electronic databases are stored.
In sum, then, all of the relevant factors weigh in favor of
conducting the deposition(s) of defendant’s corporate representatives
in Virginia.
This conclusion is bolstered by the presumption that
depositions of a corporation through its agents and officers should
ordinarily be taken at the corporation’s principal place of business.
See MEMC, 2012 WL 1606053 at *4.
therefore GRANTED.
Defendant’s Motion, ECF 21, is
The deposition of defendant’s corporate
representatives may proceed on the condition that the depositions take
place within a reasonable distance of Chantilly, Virginia.
September 4, 2014
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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