Affiliated FM Insurance Company et al v. Expeditors International NZ Ltd et al
Filing
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PROTECTIVE ORDER re Defendant Hawaiian Airlines, Inc's 28 MOTION for Protective Order. Signed by Hon. Brian A Tsuchida. (MW)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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AFFILIATED FM INSURANCE
COMPANY, a Rhode Island corporation,
and AXCELIS TECHNOLOGIES INC., a
Massachusetts corporation,
Plaintiffs,
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v.
EXPEDITORS INTERNATIONAL NZ
LTD, a New Zealand corporation;
EXPEDITORS INTERNATIONAL OF
WASHINGTON INC., a Washington
corporation, and HAWAIIAN AIRLINES
INC., a Delaware corporation,
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Defendants.
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____________________________
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EXPEDITORS INTERNATIONAL NZ
LTD and EXPEDITORS
INTERNATIONAL OF WASHINGTON
INC.,
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Cross-Claim Plaintiffs,
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v.
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HAWAIIAN AIRLINES INC.,
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Cross-Claim Defendant.
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ORDER GRANTING MOTION FOR
PROTECTIVE ORDER - 1
CASE NO. 2:19-cv-01966-RAJ-BAT
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER
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Defendant Hawaiian Airlines Inc. moves for a protective order pursuant to Federal Rules
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of Civil Procedure 26(c)(1)(C) and 30(b)(4), requiring Plaintiffs to take the deposition of
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Hawaiian Airlines either at its principal place of business in Hawaii or via video conference. Dkt.
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28. For the reasons stated herein, the motion is granted.
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BACKGROUND
This case involves the shipment of magnets from Auckland, New Zealand to Beverly,
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Massachusetts via Boston, Massachusetts and JFK Airport. Dkt. 1, ¶¶ 7–8. Plaintiffs allege that
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when the magnets arrived at their destination in Massachusetts, they were damaged. Plaintiffs
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seek damages of $57,897. Id. at ¶¶ 8, 13. Hawaiian Airlines denies the allegations. Dkt. 10, ¶ 7.
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Plaintiffs noted the in-person Rule 30(b)(6) deposition of Defendant Hawaiian Airlines,
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at a time to be agreed upon by the parties, in Seattle, Washington. Dkt. 29, Declaration of
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Bartholomew Banino, ¶¶ 5, 7, 10, 11. Defendant Hawaiian Airlines asked to hold the depositions
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via video teleconference and Plaintiffs refused. Id., Banino Decl. ¶¶ 6, 8, 10, 11. The parties
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conferred but have been unable to resolve this issue. Id., ¶ 11.
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Hawaiian Airlines’ principal place of business is Honolulu, Hawaii, and its Rule 30(b)(6)
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corporate representative resides in Hawaii. Dkt. 29, Banino Decl., ¶¶ 12, 13. The state of Hawaii
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continues to require mandatory self-quarantine for travelers entering or re-entering the State,
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unless they have a negative COVID-19 test within 72 hours prior to travel or can satisfy State
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requirements for proof of vaccination. See “Twenty-First Proclamation Related to the COVID-19
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Emergency,” available at https://governor.hawaii.gov /wp-content/uploads/2021/06/2106080-
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ATG_21st-Emergency-Proclamation-for-COVID-19-distribution-signed.pdf.’ Dkt. 28 at 5.
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ORDER GRANTING MOTION FOR
PROTECTIVE ORDER - 2
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Plaintiffs’ counsel has provided guidance on how her office is taking precautionary
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measures to prevent the spread of Covid‐19 during the proposed in-person deposition. Dkt. 32,
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Declaration of Vi Jean Reno, p. 3 ¶ 10.
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DISCUSSION
A.
Video Deposition
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Pursuant to Federal Rule of Civil Procedure 30(b)(4), the Court may order that “a
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deposition be taken by telephone or other remote means.” Due to the pandemic, “[a]ttorneys and
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litigants are adapting to new ways to practice law, including preparing for and conducting
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depositions remotely” and therefore remote depositions have become more commonplace in the
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last year. Lundquist v. First Natʹl Ins. Co. of Am., No. 18‐5301 RJB, 2020 WL 3266225, at *2
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(W.D. Wash. June 17, 2020).
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Plaintiffs argue that Hawaiian Airlines “has set forth no basis for ‘extreme hardship’
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resulting if their corporate witness appears in Seattle for deposition.” Dkt. 31, p. 5 ¶¶ 15‐23.
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Although Hawaiian Airlines has not identified its corporate representative or provided a
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declaration regarding specific concerns regarding COVID-19, “concerns over exposure to Covid‐
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19 are sufficient ground to have [a] deposition[] taken by ‘telephone or other remote means.’”
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Lundquist, 2020 WL 3266225, at *1; see General Order No. 10‐21, U.S. District Court for the
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Western District of Washington, June 30, 2021 (Local Civil Rule 32 continues to include among
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the definitions of “Unavailable Witness” in FRCP 32(4)(C): “concern about personal health risks
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from exposure to the COVID‐19 virus.”).
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Plaintiffs’ counsel has provided guidance on how her office is taking precautionary
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measures to prevent the spread of COVID‐19 (see Reno Decl., p. 3 ¶ 10), but there is also
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physical risk associated with being in crowded spaces, such as in an office or during travel. In
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER - 3
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addition to this undue burden, Hawaiian Airlines’ 30(b)(6) corporate representative may incur
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additional expenses, such as the costs of lodging and local transportation and potentially being
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“responsible for 100% of the cost of mandatory self‐quarantining for the required 10‐days” if a
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negative COVID‐19 test result is not received upon returning to Hawaii. See State of Hawai’i
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Portal: “Covid‐19 FAQs,” available at https://hawaiicovid19.com/travel/faqs/.
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Additionally, the Court notes that the areas of inquiry listed in the deposition notice are
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not complicated nor appear to require an in-person deposition. Notably, Plaintiffs offer no
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rationale for insisting that the deposition take place in-person. Alternatively, the Court finds that
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an in-person deposition should take place in Hawaii.
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B.
Physical Place of Deposition
The deposition of a corporate party ordinarily should take place at its place of business.
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See Louis Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2008 WL 1766758 (N.D. Cal. 2008)
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(citing Thomas v. International Business Machines, 48 F. 3d 478. 483 (10th Cir. 1995)).
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However, “[a] district court has wide discretion to establish the time and place of depositions.”
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Hyde & Drath v. Baker, 24 F. 3d 1162, 1166 (9th Cir. 1994); see also Clairmont v. Genuity, Inc.,
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2004 U.S. Dist. LEXIS 20784 (W.D. Wash. 2004) (“In the absence of special circumstances, a
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party seeking discovery must go where the desired witnesses are normally located .... This rule
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applies even when the deponent is a defendant in the action”); Cadent Ltd. v. 3M Unitek, 232
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F.R.D. 625, 628 (C.D. Cal. 2005) (emphasis added). Thus, the presumption is that the deposition
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will take place in Honolulu, Hawaii, absent special circumstances.
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Factors to consider when determining whether another location for the deposition is
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appropriate include “(1) location of counsel in the forum district; (2) number of corporate
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representatives to be deposed; (3) likelihood of significant discovery disputes arising which
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER - 4
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would necessitate resolution by the forum court; (4) whether the persons sought to be deposed
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often engage in travel for business purposes; and (5) the equities with regard to the nature of the
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claim and the parties’ relationship.” Stonebreaker v. Guardian Life Ins. Co., 820 F. Supp. 2d
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1096, 1098 (S.D. Cal. 2011) (citing Cadent Ltd., 232 F.R.D. at 629). The expense to the parties
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and judicial economy are also important considerations. Cadent Ltd., 232 F.R.D. at 628-29.
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Plaintiffs chose this forum because the terms and conditions of Expeditors’ air waybill
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dictate that all disputes must be brought in state or federal courts in Seattle. Dkt. 31 at 2. Other
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than this choice of forum and the fact that all parties have local Seattle counsel, there does not
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appear to be any other connection to Seattle. Plaintiffs provide no justification for imposing the
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burden and costs of cross-Pacific travel on Hawaiian Airlines’ 30(b)(6) designee, rather than
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bearing that cost themselves or, alternatively, eliminating the burden for all parties by conducting
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the depositions via video teleconference. Hawaiian Airlines concedes that because it is an airline,
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airfare could be minimized (but not eliminated). However, there are other costs related to travel,
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including time, lodging, and local transportation which must be incurred. And as previously
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noted, forcing travel during this time is also problematic as it exposes the traveler to significant
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health risks and the cost and inconvenience of COVID-19 testing and potential quarantine.
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As no special circumstances exist here, the Court finds that if Plaintiffs insist on an inperson deposition, the deposition shall take place in Honolulu, Hawaii.
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Accordingly, it is ORDERED:
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1.
Defendant Hawaiian Airlines’ motion for protective order (Dkt. 28) is
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GRANTED; the deposition of its Rule 30(b)(6) designee(s) shall either take place in Hawaii at
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Defendant’s principal place of business or alternatively, shall be taken via video teleconference.
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Each party shall bear its own expenses.
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER - 5
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The Clerk is directed to send a copy of this Order to all counsel of record.
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DATED this 16th day of July, 2021.
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A
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BRIAN A. TSUCHIDA
United States Magistrate Judge
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ORDER GRANTING MOTION FOR
PROTECTIVE ORDER - 6
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