Consolidated Pipe & Supply, Co., Inc. v. Rowe Transfer, Inc.

Filing 28

MEMORANDUM AND ORDER granting in part and denying in part 25 Motion for Protective Order; granting in part and denying in part 26 Motion to Take Deposition from Tom Kulwicki. Signed by Magistrate Judge C Clifford Shirley on 9/26/2012. (KMK)

UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CONSOLIDATED PIPE & SUPPLY, CO., INC.,
Plaintiff,

V.
ROWE TRANSFER, INC.,
Defendant.

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No. 3:11-CV-622
(SHIRLEY)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the
Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 12]. On the afternoon of September 25, 2012, the parties filed
competing motions regarding the deposition of Tom Kulwicki, an employee of AK Tube, LLC, a
non-party to this lawsuit. The Court conducted a motion hearing, via telephone on September
25, 2012. Attorney Evan Moltz participated for the Plaintiff, and Attorney Michael McGovern
participated for the Defendant.
A subpoena endorsed and served on August 27, 2012, directed that Mr. Kulwicki’s
deposition would take place on September 21, 2012, in Walbridge, Ohio. [Doc. 25-1]. Counsel
for the Defendant had a conflict at this date and time, and the deposition was, therefore, reset. A
subpoena endorsed and served on September 24, 2012, directed that the deposition would be
taken September 28, 2012, via video conference from Birmingham with the deponent in
Walbridge, Ohio. [Doc. 25-2].

On September 25, 2012, the Defendant moved for a protective order directing that Mr.
Kulwicki’s deposition be taken in Walbridge, Ohio, rather than being taken by video conference.
[Doc. 25]. Counsel for the Defendant submitted that he “had not stipulated to the remote taking
of Kulwicki’s deposition by plaintiff’s counsel and no arrangements had been made, or
requested, for the remote participation of defendant’s counsel.”

[Doc. 25 at 2].

Counsel

submitted that the parties agreed only to change the date of the deposition, and he had already
made travel arrangements to appear in Walbridge, Ohio, on September 28. [Doc. 25 at 1-2]. In
the alternative to ordering Plaintiff’s counsel to appear in Walbridge, Defendant proposed that
Plaintiff or its counsel pay $150.00, representing the airline cancellation fee to be incurred by
counsel for the Defendant if the deposition was taken by video conference. [Doc. 25 at 4].
The Plaintiff moved the Court to permit its counsel to participate in Mr. Kulwicki’s
deposition via video conference. [Doc. 26]. Counsel for the Plaintiff represented that during his
conversation with counsel on September 27, 2012, he “stated his intention to take the deposition
by video conference in an effort to minimize costs.” [Doc. 26 at 2]. Counsel for the Plaintiff
submitted that his participation by phone would not prejudice the Defendant. [Doc. 26 at 3].
Thus, when the parties came before the Court, the issue was when, where, and by what
means Mr. Kulwicki’s deposition would be accomplished. The Court was also faced with
resolving the apparent conflict in counsel’s respective memories of their conversations about the
deposition. The Court heard from the parties, reconciled their recollections, and reviewed the
costs involved in traveling and the costs involved in video conferencing– approximately $200275 per hour from vendor in the Eastern District of Tennessee.

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Having heard from the parties, the Court ORDERED that: (1) the deposition will take
remain as set on September 28, 2012; (2) counsel for the Plaintiff will pay $150.00 to counsel for
the Defendant, representing the change fee for the travel arrangements that have been made; and
(3) Plaintiff and Defendant will each pay for their respective video-conferencing time 1 used in
examining Mr. Kulwicki. The parties motions [Docs. 25 and 26] are GRANTED IN PART and
DENIED IN PART consistent with this ruling.
IT IS SO ORDERED.
ENTER:
s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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Each party estimated that their respective examinations would each take one hour.

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