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Lifetouch National School Studios Inc v. Kimberly


October 17, 2011


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed October 17, 2011 **



United States District Court For the Northern District of California

On August 22, 2011, the parties in the above-captioned action filed Discovery Dispute Joint Report #1 (Docket No. 44, "Joint Report") to settle a dispute over where to depose Mark Lanterman. 20 Defendant Moss-Williams named Lifetouch in her notice of deposition, and Lifetouch designated 21 Lanterman, who is not an employee of Lifetouch, to testify as its representative for 7 of the 53 22 categories in the notice.*fn1 See Docket No. 44, p. 3. Lifetouch argues that Lanterman should be 23 deposed in Hennepin County, Minnesota, where his business is located, while Moss-Williams 24 argues that he should be deposed in this district, the forum for the action. 25

"The deposition of a corporation by its agents and officers should ordinarily be taken at its 26 principal place of business." 8A Charles Alan Wright et al., Federal Practice and Procedure § 2112 at 533 (3d ed. 2010). But, "as a general rule, 'plaintiff will be required to make himself or herself 2 available for examination in the district in which suit was brought.'" HTC Corp. v. Tech Props., 3 Commonwealth Ins. Co., 1999 U.S. Dist. LEXIS 23428, at *9 (N.D. Cal. Sept. 17, 1999)). Several 5 factors may weigh against the presumption that a corporation or its agent should be deposed at its 6 principal place of business. These include (1) location of counsel for parties in the forum district, (2) 7 the number of corporate representatives sought to be deposed, (3) the likelihood of significant 8 discovery disputes that would necessitate resolution by the court, (4) whether the person to be 9 deposed often travels for business purposes, and (5) the equities with respect to the claim and the 10 parties' relationship. Cadent Ltd. V. 3M Unitek Corp., 232 F.R.D. 625, 628-29 (N.D. Cal. 2005).

Additionally, "the matter of expense" to the parties is an important inquiry. Id. at 628 (quoting Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2112 at 84-85 (1994 rev.)). To 13 overcome its duty to appear in the forum district, "a foreign plaintiff must persuasively demonstrate 14 that requiring him to travel to the forum district . . . would, for physical or financial reasons, be 15 practically impossible, or that it would be otherwise fundamentally unfair." In re Outsidewall Tire 16

Most of the above factors weigh in favor of holding the deposition in California, while only 18 two of them weigh slightly in favor of deposing Mr. Lanterman in Minnesota. First, counsel for all 19 parties are located in this district. Second, there are two corporate representatives to be deposed: Mr. 20 Lanterman and Mark Burket, Lifetouch's Territory Manager. Docket No. 44, p. 3. Mr. Burket "has 21 been and will be deposed in Oakland." Id. Third, equity does not favor one party over the other and 22 so does not override the plaintiff's duty to be available for examination in the forum district. Finally, 23 the overall cost of sending two attorneys to Minnesota is greater than the cost of bringing Mr. 24 Lanterman to California. While Lifetouch argues that Mr. Lanterman's travel costs, including fees 25 for time spent traveling, would constitute a burden, it would have to pay its own attorneys similarly 26 if they had to travel to Minnesota. In short, Lifetouch has not "persuasively demonstrated" that the 27 burden on it to produce Mr. Lanterman in this district is "fundamentally unfair." While the parties 28 do not anticipate a likelihood of disputes that would require resolution by the forum court, and 2008 U.S. Dist. Lexis 103948, *3-4 (N.D. Cal. Dec. 16, 2008) (quoting Lexington Ins. Co v. Litig., 267 F.R.D. 466, 471 (E.D. VA 2010).

Lifetouch states that Mr. Lanterman has not traveled to California for business in over ten years, 2 these considerations are not sufficient to override Lifetouch's responsibility to be available for 3 examination in this district. Finally, Lifetouch attempts to argue that since it had no choice but to 4 bring suit in this district, the presumption favoring deposition in the district should not be given its 5 usual weight. Docket No. 44, pp. 6-7. However, this court has heard this argument before, and finds 6 it unconvincing. See HTC Corp. v. Tech. Props., 2008 U.S. Dist. LEXIS 103948, *4 (N.D. Cal. Dec. 16, 2008) ("'[The presumption] not only permits predictability . . . it also pragmatically permits the 8 trial court to resolve disputes which may take place during the course of depositions without undue 9 expenditure of time.'" (quoting Minnesota Mining & Manufacturing Co. v. Dacar Chemical Products, Co., 707 F. Supp. 793, 795 (W.D. Pa.1989))). The factors in favor requiring the deposition to take place in the forum district prevail.

Based on the record presented, the court finds that it will be least costly to have Mr. Lanterman's deposition occur in this district. The issue of who will pay the necessary costs remains.

Lifetouch argues that the defendant should pay Mr. Lanterman's costs, but it offers no authority to 15 support its argument. This court has previously required plaintiffs to pay costs for any witnesses it 16 designates under Fed. R. Civ. P. 30(b)(6). See HTC Corp., 2008 U.S. Dist. LEXIS 103948 at *6.

Therefore, Mr. Lanterman shall be deposed in this district and Lifetouch shall bear all costs 18 of Mr. Lanterman's travel, lodging, etc. for the purposes of the deposition.


Notice will be electronically mailed to:

Mark Slater Askanas Dylan B. Carp 3 Burton F. Boltuch Michael G. Zatkin 4 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

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