United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Presently before the court is defendants Hynes Aviation Industries, Inc.'s and Dr. Michael K. Hynes's (collectively "defendants") motion for a protective order directing plaintiffs Sacramento E.D.M., Inc. and Dan Folk (collectively "plaintiffs") to take the depositions of defendants in Missouri, either in person or by means of telephone or video conference. (ECF No. 63.) The parties filed a joint statement regarding this discovery dispute, which sets forth the parties' respective positions on the issue presented by defendants' motion and states that the parties engaged in efforts to confer with one another regarding this matter prior to the filing of defendants' motion. (ECF No. 70.)
The court heard this matter on its September 4, 2014 law and motion calendar. Attorney Sean Gavin appeared on behalf of plaintiffs. Attorney Thomas Barth appeared on behalf of defendants. The court has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record. For the reasons that follow, the court grants defendants' motion for a protective order.
"Generally, the noticing party has discretion as to the place where a party deposition will be taken, subject to the court's power to grant a protective order." Douglas v. Shasta Cnty., 2010 WL 760643, at *2 (E.D. Cal. Mar. 4, 2010) (citing Philadelphia Indemnity Ins. v. Federal Ins. Co. , 215 F.R.D. 492, 495 (E.D. Pa. 2003)). If the parties cannot resolve a dispute as to the location where the deposition will take place, a protective order may be obtained. See Willis v. Mullins , 2006 WL 302343, at *5 (E.D. Cal. Feb. 8, 2006) (citing Fed.R.Civ.P. 26(c)).
Pursuant to Federal Rule of Civil Procedure 26(c)(1)(B) "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including... specifying terms, including time and place, for the disclosure or discovery." "Subsection (c) [of Rule 26] underscores the extensive control that district courts have over the discovery process, " thus "a court may be as inventive as the necessities of a particular case require in order to achieve the benign purposes of the rule." United States v. Columbia Broad. Sys., Inc. , 666 F.2d 364, 369 (9th Cir. 1982). "The Court is permitted to exercise a broad discretion in determining the appropriate place for examination and may attach conditions such as payment of expenses." Willis , 2006 WL 302343, at *5 (quoting Turner v. Prudential Ins. Co. of Am. , 119 F.R.D. 381, 383 (M.D. N.C. 1988)); Hyde & Drath v. Baker , 24 F.3d 1162, 1166 (9th Cir. 1994) ("A district court has wide discretion to establish the time and place of depositions."). Furthermore, pursuant to Federal Rule of Civil Procedure 30(b)(4), a court may on motion order "that a deposition be taken by telephone or other remote means."
Generally, if the parties cannot agree upon the place where a defendant's deposition will take place, "[c]ourts presume that [it] will proceed at his place of residence, business or employment." Willis , 2006 WL 302343, at *5; see also Grey v. Cont'l Mktg. Associates, Inc. , 315 F.Supp. 826, 832 (N.D.Ga. 1970) ("Although the federal rules do not prevent plaintiff's designating any place he chooses for the taking of a defendant's deposition, the cases indicate that it is presumed that a defendant will be examined at his residence or at his place of business or employment; if another place is named and defendant files a timely objection the objection should be sustained absent some unusual circumstance to justify putting the defendant to such inconvenience."). "Furthermore, the deposition of a corporate officer or employee should usually take place at the corporation's principal place of business or, as other courts have held, at his place of business or employment." Philadelphia Indem. Ins. Co. , 215 F.R.D. at 495. While courts will generally make these presumptions, "a number of factors serve to dissipate the presumption and may persuade the Court to require the deposition to be conducted in the forum district or some other place." Willis , 2006 WL 302343, at *5 (citing Turner , 119 F.R.D. at 383). Several courts have developed factors that the court may consider when addressing where a party's deposition is to take place, including:
1. The parties' convenience and relative hardships to attend the designated location;
2. Cost of transportation and lost work to defendant;
3. Expense and inconvenience to move voluminous documents;
4. Whether the parties' counsel are located in the forum district;
5. Whether the defendant is a large corporation whose employees often travel;
6. Whether significant discovery disputes may arise and judicial economy favors resolution by the forum court or other similar concerns; and
7. Whether the parties' claims and parties' relationship are such that appropriate adjustment of the equities favors a deposition site in the forum district.
Willis , 2006 WL 302343, at *5; see also Turner , 119 F.R.D. at 383 (citing several cases); Wisconsin Real Estate Inv. Trust v. Weinstein , 530 F.Supp. 1249, 1254 (E.D. Wis.1982). "Ultimately, the Court must consider each case on its own facts and the ...