United States District Court, E.D. California
ORDER GRANTING UNOPPOSED MOTION FOR PROTECTIVE ORDER
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
October 22, 2019, Defendants Prisoner Transportation Services
of America (“Prisoner Transportation”) and
Cleveland Wheeler (“Wheeler”) filed a motion for
protective order. (Doc. 96.) Pursuant to Local Rule 251, the
parties' Joint Statement re Discovery Disagreement was to
be filed no later than November 6, 2019. See E.D.
Cal. L.R. 251(c). The parties failed to file a Joint
Statement by the deadline, and Plaintiffs have not filed an
opposition to the motion. (See Docket.) The motion
is therefore deemed unopposed.
the parties failed to file a Joint Statement, and the Court
deems the matter suitable for decision without oral argument,
the hearing currently set for November 13, 2019, is VACATED.
See E.D. Cal. L.R. 251(a).
reasons that follow, the Court GRANTS Defendants' motion.
Terry McClure (“McClure”) noticed the deposition
of Defendant Cleveland Wheeler to take place on November 5,
2019 in Sacramento, California. (See Doc. 96 at 2.)
Defendants represent that Wheeler is employed and resides in
Florida and is no longer employed by Prisoner Transportation,
and is “precluded from traveling across the country to
have his deposition taken in Sacramento, California.”
(Id.) Defendants request a protective order that
requires Wheeler's deposition to be taken at a location
within the Middle District of Florida. (Id.) The
Court previously extended the non-expert discovery deadline
to December 16, 2019, for the limited purpose of two
depositions, including Wheeler's. (Doc. 99 at 2.)
noticing party generally has discretion where to set a
deposition, “subject to the power of the courts to
grant a protective order designating a different
location.” Willis v. Mullins, No. CV F 04 6542
AWILJO, 2006 WL 302343, at *5 (E.D. Cal. Feb. 8, 2006)
(quoting Philadelphia Indemnity Ins. v. Federal Ins.
Co., 215 F.R.D. 492, 495 (E.D. Pa. 2003)). However,
“[c]ourts presume that a defendant's deposition
will proceed at his place of residence, business or
employment.” Id.; see Grey v. Continental
Marketing Assocs., 315 F.Supp. 826, 832 (N.D.Ga. 1970)
(“[T]he 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.”).
parties cannot agree on a location for a deposition, a
protective order may be obtained. Fed.R.Civ.P. 26(c). The
Court has broad discretion to determine the appropriate
location for a deposition. Willis, 2006 WL 302343,
at *5. “Although a presumption exists to depose a
defendant at his residence or place of business, ‘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[.]”
Id. (quoting Turner v. Prudential Ins. Co. of
America, 119 F.R.D. 381, 383 (M.D. N.C. 1988)).
factors which a court may consider include: (1) the
parties' convenience and relative hardships to attend the
designated location; (2) cost of transportation and lost work
to the defendant; (3) expense and inconvenience of moving
voluminous documents; (4) the location of the parties'
counsel; (5) whether the defendant is a corporation whose
employees often travel; (6) whether significant discovery
disputes may arise and judicial economy favors resolution by
the forum court; and (7) whether the “appropriate
adjustment of the equities favors a deposition site in the
forum district.” Id. at *6 (citing
Turner, 119 F.R.D. at 383).
Defendants have shown that Wheeler's deposition should
take place in the Middle District of Florida. Wheeler resides
in Florida and is employed there. (See Doc. 96 at
2.) The parties' counsel are all located in
California-thus no party's counsel will be unfairly
inconvenienced by traveling to Florida; the cost of
transportation and lost work to Wheeler would likely be
significant; the defendant being deposed is an individual and
not a corporation, and Wheeler is no longer employed by
Prisoner Transportation; and no other significant
considerations weigh in favor of Wheeler's deposition
occurring in California. See Willis, 2006 WL 302343,
Plaintiffs failed to file an opposition to Defendants'
motion and have not shown any reason why the deposition
should take place in California as opposed to Wheeler's
place of residence in Florida, and have not shown any
“unusual circumstance to justify putting [Wheeler] to
such inconvenience.” See Grey, 315 F.Supp. at
832. Accordingly, Plaintiffs have not overcome the
presumption in favor of Wheeler's deposition taking place
in the Middle District of Florida. See Willis, 2006
WL 302343, at *5.