Stemrich et al v. Zabiyaka et al
MEMORANDUM re MOTION for Protective Order 19 for depositions of (Defendants) Oleh Zabiyaka and TL Transport, LLC filed by T.L. Transport, LLC., Oleh Zabiyaka Signed by Honorable Sylvia H. Rambo on 03/18/13. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES STEMRICH, and
DANIELLE STEMRICH, his wife,
OLEH ZABIYAKA and
T.L. TRANSPORT, LLC
CIVIL NO. 1:12-CV-1409
JUDGE SYLVIA H. RAMBO
In this civil case, Plaintiffs have sued Defendants for injuries allegedly
sustained as a result of a motor vehicle accident. Presently before the court is
Defendants’ motion for a protective order, filed in relation to two Notices of
Depositions. For the reasons stated here, Defendants’ motion (Doc. 19) will be
On July 20, 2012, Plaintiffs James and Danielle Stemrich (collectively,
“Plaintiffs”) filed a complaint against Defendants, Oleh Zabiyaka (“Zabiyaka”) and
T.L. Transport, LLC (“T.L. Transport”), pursuant to the court’s diversity jurisdiction.
(Doc. 1.) Notably, Plaintiffs are residents of the Commonwealth of Pennsylvania
(Id. at ¶ 3), Zabiyaka is a resident of the State of Michigan (Id. at ¶ 6; Doc. 10 at ¶ 6),
and T.L. Transport is a Michigan limited liability corporation with a registered office
in Michigan (Doc. 1 at ¶ 8; Doc. 10 at ¶ 8).
In their complaint, Plaintiffs allege a cause of action against Zabiyaka
based on negligence (Count I), against T.L. Transport based on negligent hiring/
retention/supervision (Count II) and negligent entrustment (Count III), and jointly
against Zabiyaka and T.L. Transport based on Loss of Consortium (Count IV). The
complaint stems from an alleged motor vehicle accident involving vehicles driven by
James Stemrich and Zabiyaka, which occurred on September 28, 2011, within the
Middle District of Pennsylvania. As a result of the incident, Plaintiff James Stemrich
allegedly sustained serious and permanent injuries. It is further alleged, inter alia,
that T.L. Transport failed to properly train and/or supervise Zabiyaka. Defendants
filed their answer with affirmative defenses on September 18, 2012.
The parties are currently engaged in discovery. On March 11, 2013,
Defendants filed a motion for protective order. (Doc. 19.) The motion seeks relief
related to the location of the depositions of Zabiyaka and Anna Humenick,1 the
subject matter of the depositions,2 and the facial invalidity of the notices. Plaintiffs
filed a response in opposition on March 14, 2013. (Doc. 22.) Because the court will
grant the motion on the basis of location, it need not reach the remaining arguments.3
Anna Humenuck is a corporate designee of T.L. Transport. For purposes of clarity, Anna
Humenuck and Zabiyaka will be jointly referenced as “Defendants.”
Defendants object to the propriety of their being deposed on certain subject areas as
outlined in the Notice. Specifically, Defendants object to Plaintiffs eliciting testimony from Anna
Humenuck regarding: (a) T.L. Transport’s investigation of the subject collision; (b) The relationship
between Defendant Zabiyaka and Defendant T.L. Transport; (c) Defendant Zabiyaka’s driving history;
(d) The corporate structure and governance of T.L. Transport; (e) The safety and collision history of
T.L. Transport and its tractor trailer unit drivers; (f) T.L. Transport’s policies, procedures and programs
regarding driver safety; (g) T.L. Transport’s policies, procedures and programs regarding accident
prevention; (h) T.L. Transport’s policies, procedures and programs regarding driver training; (i) T.L.
Transport’s policies, procedures and programs regarding log book completion, maintenance and
retention; (j) T.L. Transport’s policies, procedures and programs regarding investigations and reviews of
motor vehicle accidents involving its drivers; (k) Any/All safety programs used, offered, or made
available by T.L. Transport to their drivers, customers, lessees, and independent contractors; and (l) T.L.
Transport’s safety committees and accident prevention training, courses, and literature. (Doc. 19.)
Although the court does not reach Defendants’ subject matter-based objections to the
It is axiomatic that a trial court has broad discretion to fashion discovery
orders. See Hayes v. Am. Int’l Grp., Civ. No. 09-CV-2874, 2013 WL 718656, *2
(E.D. Pa. Feb. 26, 2013) (citing Florsheim Shoe Co., Div. of Interco, Inc. v. United
States, 744 F.2d 787, 797 (Fed. Cir. 1984) (“Questions of the scope and conduct of
discovery are, of course, committed to the discretion of the trial court.”). In the
Third Circuit, it is well recognized that the federal rules establish a “fairly liberal
discovery policy.” Moyer v. Berdanier, Civ. No. 11-CV-1811, 2013 WL 704483, *2
(M.D. Pa. Feb. 26, 2013). The Federal Rules of Civil Procedure allow discovery on
any relevant, non-privileged material that is admissible or reasonably calculated to
lead to admissible evidence. See Fed. R. Civ. P. 26(b)(1). However, “discovery, like
all matters of procedure, has ultimate and necessary boundaries.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351-52 (1978); see also Bayer AG v. Betachem,
Inc., 173 F.3d 188, 191 (3d Cir. 1999). Motions for protective orders are governed
by Rule 26(c) of the Federal Rules of Civil Procedure, which provides, in pertinent
part, that “[a] party or person from whom discovery is sought may move for a
protective order” and 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, including . . . specifying terms, including time and place, for the disclosure
or discovery.” Fed. R. Civ. P. 26(c)(1)(B).
depositions, it does note that the liberal discovery rules do not appear, on their face, to preclude
examination regarding many of the noticed subject areas. Defendants are, of course, permitted to object
to areas they think are inappropriate, pursuant to the Federal Rules of Civil Procedure. See Fed. R. Civ.
If the person to be deposed is a party to the action, a subpoena is not
required and the notice is sufficient to require his or her attendance. See 7 Wright, et
al.. Federal Practice & Procedure, § 2107 (3d ed. 2009); see also LangsamBorenstein P’Ship v. NOC Enters., Inc., 137 F.R.D. 217, 218 n. 4 (E.D. Pa. 1990).
Thus, the examining party may generally set the place for the deposition of another
party where he or she wishes, subject to the power of the court to grant a protective
order under Rule 26(c)(1)(B) designating a different place. 7 Wright et al. Federal
practice & Procedure, § 2122. A corporation may be examined through the
deposition testimony of its officers, directors, or managing agents. Fed. R. Civ. P.
30(b)(6); Phila Indem. Ins. Co. v. Fed. Ins. Co., 215 F.R.D. 492, 493 (E.D. Pa.
2003). Pennsylvania courts follow the general rule that depositions of corporate
agents and officers should ordinarily be taken at the corporation’s principal place of
business. See, e.g., Bro-Tech Corp. v. Thermax, Inc., Civ. No. 02-CV-2330, 2006
WL 3337496, *2 (E.D. Pa. Nov. 16, 2006); Triple Crown Am., Inc. v. Biosynth AG,
Civ. No. 96-CV-7476, 1998 WL 227886, *3 (E.D. Pa. Apr. 30, 1998). If a location
other than the corporate place of business is proposed by the party seeking the
deposition, and the corporation files a timely objection, a protective order should be
granted unless there are unusual circumstances which would justify allowing the
deposition to proceed at the place suggested by the deposing party. Luther v. Kia
Motors Am., Inc., Civ. No. 08-CV-0386, 2009 WL 1727909, *3 (W.D. Pa. June 18,
In their motion, Defendants contend that they each have been served
with a notice of deposition to take place in Harrisburg, Dauphin County,
Pennsylvania. Furthermore, they contend that they do not routinely travel to or
conduct business in Harrisburg, and that they would incur great inconvenience and
cost of travel and lodging if required to attend the depositions in Harrisburg. (Doc.
19.) Essentially, the issue is whether it is unduly burdensome for Defendants to be
required to be deposed nearly 500 miles away from their residences or where they
work. Plaintiffs contend that they are entitled to depose Defendants within the
Middle District of Pennsylvania, as the collision giving rise to the instant legal
dispute occurred within the boundaries of the Middle District of Pennsylvania, and
that, “while there is a general presumption that depositions of a corporate defendants
[sic] should be taken at its principal place of business, there remains a competing
presumption that a party may unilaterally select the time, place and location of their
opponents’ deposition.” (Doc. 22 at p. 5 of 14.)
The court concludes that requiring Defendants to travel to the Middle
District of Pennsylvania for a deposition would create an undue burden. Based on
the filing of this motion, it appears clear that the incident giving rise to the dispute
occurred in the Middle District of Pennsylvania and that the case was properly filed
here. However, there exists different considerations as to the propriety of filing suit4
The general venue provision of the U.S. Code provides:
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship
may . . . be brought only in (1) a judicial district where any defendant resides, if
all defendants reside in the same State, (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred . . . ,
or a judicial district in which any defendant is subject to personal jurisdiction at
the time the action is commenced, if there is no district in which the action may
in the Middle District of Pennsylvania and requiring Defendants to travel to the
Middle District of Pennsylvania to be deposed. Plaintiffs have voluntarily brought
this action, and seek to depose Defendants. Defendants, on the other hand, have
been forced into this action and are not the parties seeking to conduct the deposition.
Furthermore, the court notes that the travel distance militates in favor of not
requiring Defendants to travel to Harrisburg.
Significantly, the court must note that Plaintiffs are free to depose
Defendants by video-teleconference, a course of action Defendants apparently
suggested to Plaintiffs prior to their filing the instant motion. (See Doc. 19 at ¶ 7.) A
video-teleconference deposition would not require either party to travel. Although
Plaintiffs argue that this course of action would not permit Plaintiffs’ counsel to
observe Defendants’ demeanor when answering questions, and would inhibit
Plaintiffs’ counsel’s ability to evaluate “those non-verbal responses that can only be
appreciated by close quarter, face to face, in person examination”5 (Doc. 22 at p. 7 of
14), this hardly constitutes sufficient justification to force Defendants to travel to
Harrisburg. See Loughin v. Occidental Chem. Corp., 234 F.R.D. 75, 77 (E.D. Pa.
2005) (noting that a desire to depose an individual in person simply to observe his or
otherwise be brought.
28 U.S.C. § 1391. The complaint alleges the events giving rise to the claims occurred within the Middle
District of Pennsylvania.
Although the court agrees with Plaintiff that the “2-dimensional view of the deponent”
may limit the examining attorney’s ability to, inter alia, “referee cues/suggestions being made from off
camera” (Doc. 22 at p. 7 of 14), the court is hard-pressed to conclude that Defendants’ counsel would
act in any way other than professional during a video-teleconference deposition. Moreover, there is no
reason why the video cannot be set up in such a manner that both Defendants and their counsel appear
on the screen.
her demeanor, without more, does not amount to good cause for denying a request to
conduct a telephonic deposition); Mikola v. Penn Lyon Homes, Inc., Civ. No. 07-CV0612, 2008 WL 2050807, *1 (M.D. Pa. May 13, 2008) (noting that the counsel’s
desire to observe deponent’s demeanor when answering questions did not justify
requiring the deponent to travel more than 230 miles for deposition). If observing
Defendants’ non-verbal responses and the environment is so pivotal, Plaintiffs’
counsel may travel to Michigan to conduct the deposition, or arrange for the
deposition to be conducted by video conference. See Laughin, 234 F.R.D. at 77 n.3
(noting that a party can cure any prejudice they claim from failing to observe the
deponent’s demeanor by traveling to the deponent).
Moreover, the court sees no reason to depart from the general
acceptance that a corporation, through its designee, be deposed at a location within
its principal place of business. See Fed. R. Civ. P. 30(b)(6); see also supra Part II.
Therefore, because it finds that requiring Defendants to travel from Michigan to
Harrisburg, Pennsylvania, for the purpose of attending a deposition imposes an
undue burden upon Defendants, the court will grant Defendants’ motion for
protective order. If Plaintiffs wish depose Defendants, Plaintiffs are ordered to either
notice the deposition for a location in the Eastern District of Michigan or within 25
miles of its border, or to agree to conduct the deposition by video-teleconference.6
Plaintiffs’ counsel indicates that they are “aware of no law or directive providing for
depositions by video conference without mutual agreement” and accordingly “respectfully request that
this option be discarded.” The court directs Plaintiffs’ attention to Rule 30(b)(4) (“The parties may
stipulate–or the court may on motion order–that a deposition be taken by telephone or other remote
means.”). To be clear, the court’s decision on Defendants’ motion should not be interpreted as requiring
Plaintiffs’ counsel to engage in a video-teleconference deposition. However, rather than discarding the
option, Plaintiffs’ counsel may want to reconsider the benefits of such technology rather than traveling
nearly 500 miles to depose Defendants in person.
Based on the foregoing, the court concludes that requiring Defendants
to travel from Michigan to Harrisburg, Pennsylvania, to be deposed imposes an
undue burden, and because such a burden can easily be cured, Defendants’ motion
will be granted.
s/Sylvia H. Rambo
United States District Judge
Dated: March 18, 2013.
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