Stanissis et al v. DynCorp International LLC et al

Filing 88

MEMORANDUM OPINION AND ORDER affirming 81 ORDER on Defendants' Motion 61 to Compel Plaintiffs' Depositions in this District, and overruling 82 OBJECTION filed by DynCorp International LLC, Midlands Claim Administrators, Inc. re: 81 Order on Motion to Compel (Ordered by Judge Sidney A Fitzwater on 9/23/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ZANI STANISSIS, INDIVIDUALLY
and AS REPRESENTATIVE OF THE
ESTATE OF HER HUSBAND, CAVIN
STANISSIS, et al.,
Plaintiffs,
VS.

DYNCORP INTERNATIONAL LLC,
et al.,
Defendants.

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Civil Action No. 3:14-CV-2736-D
(Consolidated with Civil Action
No. 3:15- CV-2026-D)

MEMORANDUM OPINION
AND ORDER
Defendants object to the magistrate judge’s September 8, 2015 order denying
defendants’ July 24, 2015 motion to compel plaintiffs’ depositions in this district and
ordering that the depositions of plaintiffs—each of whom is a citizen of the Republic of
South Africa—be taken during defendants’ upcoming, scheduled trip to South Africa to
conduct discovery from third party witnesses. Concluding that the magistrate judge did not
abuse her discretion in denying the motion and ordering that the depositions be conducted
in South Africa at plaintiffs’ expense, the court affirms the magistrate judge’s order.
I
Because the magistrate judge’s order involves a nondispositive matter (a discovery
ruling), defendants’ objections are governed by Fed. R. Civ. P. 72(a), which provides, in
pertinent part, that “[t]he district judge . . . must . . . modify or set aside any part of the

[magistrate judge’s] order that is clearly erroneous or is contrary to law.” Rule 72(a).
“When a party appeals a magistrate judge’s order, [it] must demonstrate how the order is
reversible under the applicable standard of review—de novo for error of law, clear error for
fact findings, or abuse of discretion for discretionary matters.” Jefferson-Pilot Life Ins. Co.
v. Bellows, 2003 WL 21501904, at *1 (N.D. Tex. June 24, 2003) (Fitzwater, J.). “The clearly
erroneous standard applies to the factual components of the magistrate judge’s decision.”
Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996) (Fitzwater, J.)
(quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994) (Fitzwater, J.)) (internal
quotation marks omitted). “The district court may not disturb a factual finding of the
magistrate judge unless, although there is evidence to support it, the reviewing court is left
with the definite and firm conviction that a mistake has been committed.” Id. (quoting Smith,
154 F.R.D. at 665) (internal quotation marks and brackets omitted). “If a magistrate judge’s
account of the evidence is plausible in light of the record viewed in its entirety, a district
judge may not reverse it.” Id. (quoting Smith, 154 F.R.D. at 665) (internal quotation marks
omitted). The legal conclusions of the magistrate judge are reviewed de novo, and the district
judge “reverses if the magistrate judge erred in some respect in her legal conclusions.” Id.
(citing Smith, 154 F.R.D. at 665). “[T]he abuse of discretion standard governs review of that
vast area of . . . choice that remains to the [magistrate judge] who has properly applied the
law to fact findings that are not clearly erroneous.” Id. (quoting Smith, 154 F.R.D. at 665)
(alteration and ellipsis in original) (internal quotation marks omitted).
The court reviews the magistrate judge’s discovery decision under the abuse of
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discretion standard, and it does not substitute its own judgment for that of the magistrate
judge. See Nunn v. State Farm Mut. Auto. Ins. Co., 2010 WL 2044477, at *4 (N.D. Tex.
May 24, 2010) ( Fitzwater, C.J.) (“And in matters of discretion—and discovery decisions are
usually quintessential examples of the exercise of discretion—district judges do not substitute
their own judgment for that of the magistrate judge.”); see also Hoffman v. L&M Arts, 2013
WL 655014, at *2 (N.D. Tex. Feb. 21, 2013) (Fitzwater, C.J.) (reviewing discovery decision
for abuse of discretion).
II
Defendants filed a motion to compel plaintiffs’ depositions to be taken in this district.
The court referred the motion to the magistrate judge. The magistrate judge denied the
motion and ordered that plaintiffs’ depositions be taken, at plaintiffs’ expense, during
defendants’ upcoming, scheduled trip to South Africa. Defendants object to the order on
several grounds, contending that the magistrate judge committed legal error, based her
decision on clearly erroneous fact findings, and abused her discretion.
“It is well settled that the district court has great discretion in designating the location
of taking a deposition[.]” Thompson v. Sun Oil Co., 523 F.2d 647, 648 (8th Cir. 1975) (citing
Terry v. Modern Woodmen of Am., 57 F.R.D. 141 (W.D. Mo. 1972)); see also In re Petition
of Boehringer Ingelheim Pharm., Inc., & Boehringer Ingelheim Int’l GmbH, in Pradaxa
(Dabigatran Etexilate) Products Liab. Litig., 745 F.3d 216, 221 (7th Cir. 2014) (“[D]istrict
courts managing civil cases have extensive discretion over the locations of depositions.”).
Although courts have required that plaintiffs appear for depositions in the forum in which
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they filed suit, there is not an invariable requirement that a plaintiff’s deposition be
conducted in the forum in which suit is filed. Instead, the court can order that the deposition
be taken outside the forum district when the plaintiff demonstrates good cause.
Ordinarily, plaintiff will be required to make himself or herself
available for examination in the district in which suit was
brought. Since plaintiff has selected the forum, he or she will
not be heard to complain about having to appear there for a
deposition. But this is at best a general rule, and is not adhered
to if plaintiff can show good cause for not being required to
come to the district where the action is pending. For example,
the examination has been ordered held elsewhere when plaintiff
was physically and financially unable to come to the forum,
when to do so would cause hardship to the plaintiff, and when
it would be simpler and fairer to take his or her deposition at his
or her place of residence.
8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2112, at
527-30 (3d ed. 2010) (emphasis added) (footnotes omitted).
The magistrate judge did not use the words “good cause” in her order, but it is
apparent that she applied a good cause standard in making her decision. To understand why,
it is necessary to begin with plaintiffs’ response to defendants’ motion to compel. In their
response, plaintiffs recognized that, although a plaintiff is required to appear in the forum of
the lawsuit, the court maintains considerable discretion in determining the place of a
deposition, and the party seeking protection must establish good cause for such relief.
Plaintiffs then offered several reasons for contending that there was good cause to take their
depositions in South Africa in person or via video conference. Among the grounds on which
they relied were these:

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(1) [a] substantial number of depositions (including treating
physicians and other third parties) is already to be completed in
South Africa, and Plaintiffs’ depositions could be readily
completed in person in conjunction with, before, or after this
discovery to be completed in the near future (or by oft-utilized
videoconference technology, if necessary)[,]
Ps. Resp. 3 (number added); (2) deposing plaintiffs in South Africa would allow for more
“timely” discovery than would defendants’ demand of “a separate trip by each Plaintiff (at
substantial expense) to appear in person in Dallas separately for deposition,” id. at 2; (3)
holding the depositions in Dallas would impose “unduly burdensome travel expense” on
plaintiffs who all “reside in the Republic of South Africa and have suffered significant
disabilities that still remain uncompensated due to [defendants’] misconduct,” id. at 3-4; (4)
“Defendants’ counsel at each deposition to date do not routinely practice in the Northern
District of Texas, and so discovery in Dallas has necessitated travel by Defendants’ counsel
as a matter of course,” id. at 2 n.1; (5) “Defendant[s’] burden to travel to South Africa is
minimal because [their] attorneys will already be in South Africa,” id. at 4; (6) because
defendants recruit overseas employees such as plaintiffs, defendants should have “reasonably
anticipated” that discovery (including overseas depositions) might take place overseas, id.
at 5; and (7) “permitting each Plaintiff to appear via video conference would substantially
reduce the physical toll of travel[ing] for the twenty-one Plaintiffs from South Africa to
Dallas, Texas,” id. at 6.
In denying defendants’ motion to compel and accepting at least some of plaintiffs’
grounds, the magistrate judge reasoned:

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[u]pon analysis, the Court concludes that the depositions of
Plaintiffs should take place during Defendants’ scheduled trip to
the Republic of South Africa in October. Plaintiffs’ depositions
could be readily completed in conjunction with, before, or after
the scheduled discovery is to be completed. However, Plaintiffs
shall be responsible for any reasonable expenses incurred by
Defendants in deposing Plaintiffs during their already scheduled
trip to South Africa, rather than in Dallas.
Stanissis v. DynCorp Int’l LLC, No. 3:14-CV-2736-D, at *3 (N.D. Tex. Sept. 8, 2015)
(Toliver, J.). The magistrate judge’s analysis demonstrates that she must have considered
and relied on grounds that plaintiffs presented in their response to establish good cause to
conduct their depositions in South Africa during defendants’ upcoming, scheduled trip. She
essentially weighed the burdens that plaintiffs had presented against the fact that defendants
were already planning to travel to South Africa to conduct third party discovery. The
magistrate judge did not abuse her “great discretion in designating the location of taking a
deposition[.]” Thompson, 523 F.2d at 648.
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For the reasons explained, the magistrate judge’s September 8, 2015 order is
AFFIRMED.
September 23, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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