Buergofol GmbH v. Omega Liner Company, Inc.

Filing 499

ORDER denying 293 Motion for Order Under Rule 30(b)(4) to Have the Deposition of Dr. Boutrid Taken by Remote Means. Signed by U.S. District Judge Karen E. Schreier on 9/25/24. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BUERGOFOL GMBH,

4:22-CV-04112-KES

Plaintiff,
ORDER DENYING MOTION FOR
REMOTE DEPOSITION

vs.
OMEGA LINER COMPANY, INC.,
Defendant.

BACKGROUND
Defendant, Omega, served a notice of deposition of Dr. Abdel-Kader
Boutrid, Head of Research and Development at Buergofol GmbH, to take place
in Sioux Falls, South Dakota. Docket 297-1. After receiving the notice, plaintiff,
Buergofol, reached out to Omega and requested that the deposition occur
through remote means. Docket 297-2 at 39, 48. Omega denied the request,
raising a number of concerns about the quality of remote depositions and the
legality of remote depositions in Germany. Id. at 27, 37-38. In response,
Buergofol proposed that Dr. Boutrid be deposed via video conference while
physically present in the Czech Republic. 1 Id. at 36-37. When Omega would
not agree, id. at 2-7, Buergofol filed the instant motion, see Docket 294 at 5-6.
Dr. Boutrid resides in Germany. See Docket 294 at 5; Docket 67 ¶ 1; Docket
297-2 at 46. A deposition via video, however, is not possible under German
law. See Docket 290-1; Docket 290-2; Docket 294 at 17. Thus, Buergofol
proposes Dr. Boutrid travel two hours to the Czech Republic for a remote
deposition. Docket 294 at 15-16. Buergofol asserts this solution would comply
with both United States and German law. Id. at 16-18.
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Buergofol moves pursuant to Rule 30(b)(4) to have the deposition of Dr.
Boutrid taken by remote means. Docket 293. Omega opposes the motion and
requests the deposition take place as noticed—in person in Sioux Falls, South
Dakota. See Docket 311; Docket 431.
LEGAL STANDARD
Under Rule 30(b)(1) of the Federal Rules of Civil Procedure, “[a] party who
wants to depose a person by oral questions . . . must state the time and place
of the deposition.” Fed. R. Civ. P. 30(b)(1). Typically, this means that the
examining party may unilaterally choose a deposition’s location. Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure:
Civil § 2112, at 523 (3d ed. 2024).
Under 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.”
Fed. R. Civ. P. 30(b)(4). “Rule 30(b)(4) was created for legitimate situations
where being in-person [for a deposition] is not viable.” H & T Fair Hills, Ltd. v.
All. Pipeline L.P., 2020 WL 5512517, at *3 (D. Minn. Sept. 14, 2020). “Although
Rule 30 does not set forth standards for courts to consider when determining
whether to permit the taking of a deposition remotely, ‘[i]t is well-established
that the scope and conduct of discovery are within the sound discretion of the
trial court.’ ” Edwards v. Thomas, 2021 WL 8316970, at *2 (W.D. Ark. Nov. 18,
2021) (quoting Zeller v. Wal-Mart Stores, Inc., 2008 WL 11337855, at *1 (W.D.
Ark. Nov. 12, 2008)); see also Thompson v. Sun Oil Co., 523 F.2d 647, 648 (8th
Cir. 1975) (stating the court enjoys “great discretion in designating the location
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of taking a deposition”); Patterson Dental Supply, Inc. v. Pace, 2020 WL
10223626, at *3 (D. Minn. Nov. 5, 2020) (“Courts possess wide discretion in
determining the manner for taking depositions, including whether they should
take place by remote means.” (quotation omitted)). Importantly, Rule 30(b)(4) is
permissive, not mandatory. Kirlkand v. City of Maryville, 2020 WL 12863656, at
*1 (E.D. Tenn. Aug. 17, 2020).
“[A]lthough some courts speak colloquially about whether there is ‘good
cause’ to take remote depositions allowed by Rule 30(b)(4), the [r]ule does not
literally require the existence of good cause.” Doe v. Bd. of Regents of Univ. of
Nebraska, 2022 WL 17343852, at *2 (D. Neb. Nov. 30, 2022) (quoting In re
Boiler Chicken Antitrust Litig., 2020 WL 3469166, at *7 (N.D. Ill. June 25,
2020)). Instead, the party seeking a remote deposition need only “advance a
legitimate reason for seeking a remote deposition. [And], if that foundational
showing is made, then the burden shifts to the opposing party to make a
particularized showing that conducting the deposition by remote means would
be prejudicial.” Patterson, 2020 WL 10223626, at *4 (quoting List v. Carwell,
2020 WL 5988514, at *8 (D. Minn. Oct. 9, 2020)). This is a balancing test that
“requires careful consideration of the facts and circumstances, including” the
weighing of the purported “legitimate reason” against the “hardships asserted.”
List, 2020 WL 5988514, at *8. 2

Omega argues that Buergofol must show “good cause” because Buergofol is
actually seeking a protective order—not a remote deposition—in attempting to
re-locate the deposition to the Czech Republic. Docket 311 at 5-7; see also
Pace, 2020 WL 10223626, at *2 (stating that a party seeking a protective order
2

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DISCUSSION
I.

Legitimate Reasons
Buergofol puts forth three “legitimate reasons” for Dr. Boutrid’s

deposition to be taken by remote means. Docket 294 at 9-13. First, Buergofol
claims that Dr. Boutrid will miss about a week of work (including travel time
and time being deposed) which will negatively affect the functioning of
Buergofol’s factories and film production. Id. at 10-11. Second, Buergofol
asserts that holding the deposition in Sioux Falls would result in unnecessary
costs and inconvenient travel. Id. at 12. And third, Buergofol argues that an inperson deposition and associated travel pose an unnecessary health risk due to
COVID-19. Id. at 12-13. The court will address each of these concerns in turn.

bears the burden to show “good cause”). Buergofol maintans that it may
properly seek for Dr. Boutrid to be deposed remotely in the Czech Republic
under Rule 30(b)(4), without moving for a protective order. Docket 321 at 4, 8,
11-12. There is some authority to support Omega’s contention. See, e.g., Trove
Brands, LLC v. Trrs Magnate LLC, 2024 WL 557789, at *1 (E.D. Cal. Feb. 12,
2024) (stating a deposing party may unilaterally choose the location of the
deposition, subject to a protective order); S.E.C. v. Banc de Binary, 2014 WL
1030862, at *3 (D. Nev. Mar. 14, 2014) (same). But see Tsien v. Bd. of Regents
of Univ. Sys. of Georgia, 2021 WL 6617307, at *2 (S.D. Ga. Nov. 12, 2021),
aff'd, 2021 WL 6617308 (S.D. Ga. Dec. 20, 2021) (analyzing a motion for a
remote deposition in China under the legitimate reason standard). But the
court need not reach this issue because the court finds that Buergofol has
failed to meet the lesser “legitimate reason” standard. See In re Boiler Chicken
Antitrust Litig., 2020 WL 3469166, at *7 (noting that “good cause” is a higher
standard than “legitimate reason”).
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A. Dr. Boutrid’s absence from work and impact on Buergofol’s
factories
Buergofol argues that Dr. Boutrid should not have to travel over 5,000
miles to be deposed in South Dakota because doing so would disrupt Dr.
Boutrid’s work schedule and, ultimately, the productivity of Buergofol’s
factories. Id. at 10-11. But importantly, it was Buergofol that chose to bring
this action in South Dakota. See generally Docket 1.
“Ordinarily, plaintiff [] [is] required to make [itself] available for
examination in the district in which suit was brought. Since plaintiff has
selected the forum, [it] will not be heard to complain about having to appear
there for a deposition.” 8A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2112 (3d ed. 2024); see, e.g. Loeser v. Noble Supply &
Logistics, LLC, 2024 WL 2155219, at *2 (D. Md. May 14, 2024); Trove Brands,
LLC v. Trrs Magnate LLC, 2024 WL 557789, at *1 (E.D. Cal. Feb. 12, 2024)
(courts presume plaintiffs will be deposed in the district they brought the
action because “in selecting the forum, [plaintiff] has effectively consented to
participation in legal proceedings there.”) (citation omitted); Am. Gen. Life Ins.
Co. v. Baker, 2010 WL 1610456 at *6 (D. Neb. Apr. 19, 2010). “This rule is also
applicable to plaintiff’s agents and employees.” Perdana Cap. Inc. v. Chowdry,
2010 WL 11475933, at *3 (N.D. Cal. Sept. 2, 2010) (emphasis removed).
Moreover, “[e]ven with respect to foreign corporate defendants . . . [there is a]
presumption that depositions should be taken in the litigation forum.” Id.

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Thus, while the court recognizes that Dr. Boutrid will have to miss work
and be inconvenienced by a trip to attend an in-person deposition in South
Dakota, this is an expected reality of engaging in litigation. See Troxel v. Gunite
Pros, LLC, 2022 WL 2762905, at *2 (S.D. Ala. Mar. 17, 2022) (finding that
because the plaintiffs brought suit in the forum, the “[p]laintiffs’ expected
inconveniences in missing work and arranging for family care . . . fall short of
showing ‘a sound basis or legitimate need’ for an order mandating remote
depositions”). While “travelling for depositions is inconvenient, a reasonable
burden or inconvenience is expected” when the plaintiff chose to bring suit in
the location where the depositions are to take place. Id. (quotation omitted).
Buergofol also argues that Dr. Boutrid plays a substantial role in
Buergofol’s factories and the production of film, and as a result, his absence
could negatively affect Buergofol’s bottom line. See Docket 294 at 11-12.
Specifically, Buergofol alleges that “[w]hile many questions from production
personnel can wait a day or two to be answered, some production decisions
cannot wait and would have to be made without the input of Dr. Boutrid’s
expertise, which could potentially cause lower quality film to be produced.” Id.
at 11. Buergofol estimates the financial risk of Dr. Boutrid’s absence to be
approximately 50,000 Euros. Id. at 11-12. The court does not find this
argument persuasive because Dr. Boutrid was recently able to come to the
United States for a deposition in Washington D.C. See Docket 431; Docket 4311; Docket 431-2. The deposition occurred without any objection by Buergofol.
See Docket 431 at 2. Thus, the court finds that although it may not be ideal,
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Buergofol’s factories are obviously able to function without Dr. Boutrid’s
physical presence on site.
Based on the foregoing, the court finds that the hassle of Dr. Boutrid
taking off work and traveling to South Dakota is not a legitimate reason to
conduct his deposition remotely.
B. Unnecessary costs and inconvenient travel
Buergofol maintains that the costs associated with deposing Dr. Boutrid
in Sioux Falls, namely airfare and travel, constitute a legitimate reason to
conduct the deposition remotely. Docket 294 at 12. Courts have recognized
that costs can serve as a legitimate reason for holding remote depositions. See
In re Broiler Chicken Antitrust Litig., 2020 WL 3469166, at *7 (“A desire to save
money taking out of state depositions can suffice to show good cause to take a
deposition by remote means.”).
But courts have been wary of allowing a plaintiff to use costs as an
excuse to avoid in-person depositions because “[t]he plaintiff . . . [took] the
volitional step of initiating the lawsuit or claim . . . [and] stands to gain a
substantial monetary sum and/or other beneficial relief as a result of suing a
defendant.” In re Deepwater Horizon Belo, 2021 WL 6882434, at *4 (N.D. Fla.
July 12, 2021) (quoting United States v. Rock Springs Vista Dev., 185 F.R.D.
603, 604 (D. Nev. 1999)). As a result, some courts have held that plaintiffs
“cannot invoke the mere [] inconvenience or expense as a legitimate reason to
refuse to appear and submit himself or herself to questioning by the defendant

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regarding the basis for the claim.” Id. (quoting Rock Springs, 185 F.R.D. at
604).
Here, as noted above, Buergofol chose to bring suit in South Dakota and
seeks roughly $4 million in damages and injunctive relief from Omega. Docket
304 at 5; Docket 163 at 21-22 (prayer for relief). “[I]t is only appropriate that in
making th[e] decision [to bring suit in the forum] plaintiffs must consider the
costs of prosecuting that suit, rather than rely on shifting the cost onto
defendants before adjudication on the merits.” Trove Brands, LLC, 2024 WL
557789, at *2 (citation omitted) (evaluating a motion for a protective order
under a good cause standard). This is particularly true, where, as here, the
cost of the deposition will literally be shifted to Omega. Omega has made clear
that because Dr. Boutrid is such a key witness, it plans to take Dr. Boutrid’s
deposition in person—whether that be in South Dakota, or, if the court grants
Buergofol’s motion, in the Czech Republic. Docket 311 at 23. Thus, either way,
one party will incur travel expenses. As such, the court finds that the potential
costs Buergofol may be subject to as a result of bringing Dr. Boutrid to South
Dakota do not constitute a legitimate reason for a remote deposition.
C. COVID-19
Finally, Buergofol contends that the potential danger of contracting
COVID-19 is a legitimate reason to hold Dr. Boutrid’s deposition remotely.
Docket 294 at 12-13. Buergofol argues that just because the state of
emergency that was issued in the height of the pandemic has been lifted does
not mean that the risk of COVID-19 is no longer a valid concern. Id.
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The court recognizes that the health risks associated with COVID-19 can
be a legitimate reason for a deposition to be conducted remotely. See H & T Fair
Hills, Ltd., 2020 WL 5512517, at *1. But this court has recognized—as early as
June 2021—that a vaccine for COVID-19 is widely available and that guidelines
published by the Centers for Disease Control permit a safe manner in which to
conduct in-person depositions. See Nasuti v. Walmart, Inc., 2021 WL 2336935,
at *3 (D.S.D. June 8, 2021). Additionally, Buergofol has provided no argument
that Dr. Boutrid has specific health issues or conditions that would heighten
the risks associated with contracting COVID-19. Instead, Buergofol offers only
general concerns about the virus. Courts have found such showings
insufficient. See, e.g., In re Deepwater, 2021 WL 6882434, at *3 (denying
motion for video deposition, noting that pandemic concerns “[do] not, standing
alone, give the [c]ourt a basis to compel a litigant to take a remote
deposition when that litigant has reasonably elected otherwise”); United States
v. Balega, 2022 WL 20100634, at *3 (D. Minn. Mar. 10, 2022) (requiring the
movant to articulate specific facts as to the effect of COVID-19 on the
deposition and deponent in question); G.K. v. D.M., 2024 WL 1801907, at *3
(E.D. La. Apr. 25, 2024) (“[A]bsent a specific showing of hardship tied to an
individual’s circumstances, a general order requiring that the deposition of an
out-of-town plaintiff be taken telephonically is not warranted.” (citation
omitted)).
It also bears repeating that Dr. Boutrid traveled to the United States for a
deposition in August. Docket 431 at 2; Docket 431-1; Docket 431-2. So, clearly
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Dr. Boutrid’s concerns about COVID-19 are not so severe as to completely stop
him from traveling. Tijerina-Salazar v. Venegas, 2021 WL 6011137, at *4 (W.D.
Tex. Dec. 20, 2021) (noting that the deponent’s appearance “elsewhere inperson for other depositions . . . during and throughout the pandemic. . .
indicate[s] that [the deponent] does not truly believe COVID-19 is a pertinent
barrier from attending in-person depositions” and holding COVID-19 is not a
legitimate reason for remote deposition). In conclusion, the court finds that
Buergofol’s general concerns with COVID-19 do not rise to the level of a
“legitimate reason” for the court to order a remote deposition.
II.

Discovery disputes and witness testimony
The specific circumstances of this case and the sought-after testimony

further dampen the “legitimate reasons” that Buergofol asserts. Courts are
“unwilling to permit remote depositions, despite the COVID-19 pandemic, in
instances where the testimony is key to the issues presented and the case has
been subject to multiple discovery disputes.” Edwards, 2021 WL 8316970, at
*2 (collecting cases); see also Tsien, 2021 WL 6617307, at *3 (denying motion
for a remote deposition of key witnesses).
Here, there is no question that this action is fraught with discovery
disputes. See, e.g., Docket 444 (motion to compel); Docket 254 (motion for
protective order); Docket 175 (motion to compel); Docket 168 (motion to
compel); Docket 100 (motion to compel). The parties have each filed a number
of motions requesting the court intercede in the discovery process—both
alleging a lack of cooperation and hostility from the other party. See generally
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Docket 255; Docket 344. These “discovery disputes . . . instill little confidence
that a remote deposition will proceed” in a harmonious manner. See Edwards,
2021 WL 8316970, at *2 n.2. In fact, Omega has already noted that it expects
disagreements to arise. Docket 311 at 21-22 (noting its concerns that Buergofol
will attempt to claim testimonial privileges premised on foreign laws).
Additionally, Dr. Boutrid—by virtue of his status as one of the inventors
listed in the ‘882 patent, his long-time employment by Buergofol, and his
position as Head of Research and Development—is a key witness. Docket 311
at 24-27. Omega claims that Dr. Boutrid has substantial knowledge not only
about the ‘882 patent, but also about its prosecution and potential prior art
sales. See id. This information is crucial to both Buergofol and Omega’s claims
and defenses. See id.
Where testimony is critical, “the value of accurately assessing credibility
is heightened” and “[r]emote depositions preclude . . . the assessment of the
deponent’s demeanor, affect, non-verbal responses, and facial expressions.”
Tsien, 2021 WL 6617307, at *3 (citation omitted). This is particularly true
where, as here, Dr. Boutrid will be testifying about highly complex material and
that testimony will have to be translated through an interpreter. See Docket
311 at 24-28 (Omega discussing Dr. Boutrid’s expected testimony on the ‘882
patent, record retention, and film composition and testing); Docket 297-2 at 36
(Buergofol stating an interpreter would be needed for the deposition).

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“Courts [have] historically recognize[d] that live testimony is far superior
to video or telephone testimony, and counsel’s ability to observe a party as he
or she answers questions is an important aspect of discovery.” G.K., 2024 WL
1801907, at *3; In re Deepwater, 2021 WL 6882434, at *3 (stating that inperson depositions are superior).
Thus, the court finds that the multitude of discovery disputes and the
importance of Dr. Boutrid’s testimony also weigh in favor of denying Buergofol’s
motion for remote deposition.
III.

Prejudice
Even if Buergofol had presented the court with a legitimate reason that

warranted a remote deposition, the court finds that such reasons would be
outweighed by the prejudice to Omega. 3 Namely, granting Buergofol’s motion
would simply impose all of Buergofol’s claimed hardships—absence from work,
travel costs, and COVID-19 related health risks—onto Omega, which has
stated it will depose Dr. Boutrid in person, whether in the Czech Republic or
Sioux Falls, South Dakota. See Docket 311 at 23, 29. The court finds that
Buergofol has not presented sufficient reasons to warrant such a burden shift.
Omega claims it will be prejudiced by a remote deposition because (1) this is a
complex lawsuit with high stakes; (2) deposition disputes require judicial
oversight, which will be difficult to ensure given the time difference in the
Czech Republic; (3) the court’s authority may be called into question given the
foreign destination; (4) Omega will bear travel costs, because it intends to
depose Dr. Boutrid in person; and (5) Dr. Boutrid is a key witness and Omega
will not be able to meaningfully depose him though remote means. Docket 311
at 19-25. The court need not address each of these potential prejudices here,
as many of them were discussed above. The court will also assume Buergofol’s
declarations that a remote deposition in the Czech Republic would not inhibit
the court’s authority or ability to oversee the deposition. See Docket 321 at 7-8.
3

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IV.

Attorney’s fees
In its response to Buergofol’s motion, Omega requests attorney’s fees.

Docket 311 at 29-30. Omega claims that because Buergofol “lack[ed] justifiable
foundation for initiating” its motion and “failed to provide any meaningful
evidence of any valid reason” for a remote deposition, it should be awarded
attorneys fees. Id. at 29. Although the court found that Buergofol failed to show
a “legitimate reason” for remote deposition, Buergofol’s purported reasons were
not hollow, and thus its motion was not without merit. As such, the court
denies the request for attorney’s fees.
CONCLUSION
Because Buergofol failed to provide the court with a legitimate reason to
remotely depose Dr. Boutrid while he is physically present in the Czech
Republic, and any hardship Buergofol may face is outweighed by the potential
prejudice to Omega, it is
ORDERED that Buergofol’s motion for remote deposition (Docket 293) is
denied.
Dated September 25, 2024.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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