MEMORANDUM OPINION AND ORDER
INTRODUCTION
The plaintiffs salient objection to the depositions taking place in Japan was that the only place they could be conducted was at the American Consulate, which entailed significant and obvious scheduling difficulties, with so many litigants vying for the necessarily limited spaces on the calendar. The plaintiffs also contend that there were significant logistical difficulties in transporting what were described as the very large number of documents that had to be taken to Japan in order to be available for what were described as highly technical and abstruse depositions. Toshiba had a miscellany of objections to Chicago, arguing variously that there was a “presumption” that the depositions should occur in Japan, that the prospective witnesses were too highly placed in the company to be spared for so long a trip and that there was the problem of “serious jet lag.” Indeed, if one were to accept Toshiba’s description, the jet lag bordered on debilitating. Toshiba proposed that the depositions occur in Osaka and/or Hong Kong.
Perhaps mindful of Emerson’s dictum about foolish consistency, the parties (after some judicial prodding) reached a partial and tentative compromise. Six witnesses would be deposed in Irvine — where a Toshiba subsidiary is located — with plaintiff to pay travel costs, with three “technical” witnesses to be deposed in Chicago at the plaintiffs expense. The plaintiffs willingness to travel to Irvine was contingent upon the technical witnesses being deposed in Chicago. Unfortunately, the negotiations broke down on April 27, 2007: Toshiba was irretrievably committed to having the three technical witnesses deposed in Irvine, and the plaintiffs were equally insistent that the depositions had to be in Chicago.
And so we are back to square one. The decision of where a deposition should occur is ultimately an exercise in the vast discretion a district court has in supervising discovery. Cf. Crawford—El v. Britton,
This is not to say that discretionary choices are left to a court’s inclination or whim. Those choices must be guided by sound legal principles. Discretion without a criterion for its exercise is, as Justice Frankfurter observed, authorization of arbitrariness. Brown v. Allen,
It is only when no reasonable person could agree with the district court’s conclusion that it can be said that a discretionary choice is abusive. See Rivera v. City of Chicago,
FACTUAL BACKGROUND
This issue regarding the location of the 30(b)(6) depositions arose as long ago as January 6, 2006, when Judge St. Eve granted the plaintiffs’ motion to file an amended complaint, which added Toshiba-Japan as a defendant. It is inconceivable that the plaintiffs’ highly sophisticated and experienced lawyers, see www.niroscavone.com, did not appreciate the scheduling difficulties then; certainly by February 27, 2007, they were cognizant of the situation. On that day, they told Judge St. Eve that they were planning on traveling for depositions in Tokyo, Belgium and Montreal. (Plaintiffs’ Reply, Ex. 9, at 4)
The plaintiffs noticed the 30(b)(6) depositions on March 5, 2007, and inquired about scheduling the Japanese depositions two weeks later, on March 19, 2007. (Plaintiffs’ Motion to Compel, Decl. of Paul Gibbons). No depositions were taken anywhere until mid-April, and that was in Belgium. By the time the plaintiffs cheeked on the availability of consulate facilities, the discovery deadline was barely four months away — a brief period in a context of a case like this. At present, there are no rooms available at the United States Consulate in Tokyo before the close of
When the parties appeared before me on this motion on March 22, 2007, Toshiba’s Seattle counsel requested an additional week to resolve the matter. By March 28th, however, the defendants had not even taken the initial step of designating their 30(b)(6) witnesses by title or name; indeed, Toshiba was still undecided even as to how many would be involved. I expressed some dismay at the delay and asked Toshiba to promptly make the necessary designations.
A few days later, at a hearing on April 2nd, the defendants offered Hong Kong or Osaka as a compromise location. They argued that this would be ideal because Hong Kong was about a four-hour flight from Tokyo and the witnesses would not suffer the serious jet lag it was insisted they would incur in traveling to the United States. The plaintiffs declined the offer, and in response to my question, said that they would pay the witnesses’ travel costs to Chicago. Plaintiffs’ counsel argued that Hong Kong was an even longer flight for them than to Japan, and expressed grave concern about the volume of documents that he would have to transport. When I expressed some dubiety, counsel explained that the real problem was access to needed documents to be able to effectively depose the “technical” witnesses.
At my instruction, Toshiba revealed on March 30th (in a letter to me and Chicago counsel for plaintiffs) the history of the prospective 30(b)(6) witnesses’ travel to the United States during the preceding 18 months. Two of the prospective witnesses, Hiroshi Hashizume and Mamoru Wariishi, had been in the United States a total of thirteen times in the past 18 months: of the latter’s ten visits to the United States, four had been to New York with the remainder to Irvine. Mr. Hashizume had been to California twice. Both men, it was disclosed, were scheduled tentatively to be in the United States in the immediate future. Another of the witnesses, Mr. Yujiuchigasaki has been in the United States seven times over the past 18 months with four of those trips being to the District of Columbia. (See letter of March 30th from Amy O’Toole to the court and counsel).
However, at the hearing on April 2, 2007, Toshiba’s Seattle counsel informed me and counsel for the plaintiffs that the trip was “tentative,” and it was anything but certain that they would actually be in the United States in April. (Plaintiffs Reply, Ex. 1, at 23). It now appears that these two gentlemen in fact came to the United States on Toshiba business during the second week of April. (Plaintiffs Reply, at 8). Neither the court nor the plaintiffs’ counsel were made aware of the trip, and no attempt was made by Toshiba to schedule depositions during their stay in the United States. Indeed, when plaintiffs’ counsel inquired about them, he was told to await the outcome of the motion to compel. (Plaintiffs Reply, at 1, 8; Plaintiffs Opposition, at 2).
This sort of behavior calls to mind the Supreme Court’s observation in Crosby v. Buchanan,
The motion was finally fully briefed on April 24, 2007. What should have been three briefs turned into five. Each party’s final submission provides something of a snapshot of where they are now, but even now, they do not agree as to their respective final positions, let alone what their prior positions were. Plaintiffs contend that defendants offered to bring all nine witnesses to Chicago if the plaintiffs paid business class airfare. The plaintiffs explain that because the difference between coach and business class was over $7000 per ticket, they balked at that idea. (Plaintiffs’ Reply, at 2). Defendants deny that they insisted on business class tickets and contend that throughout they have maintained the same order of preference for deposition locations: Tokyo, Hong Kong, and Irvine, California.
According to defendants, plaintiffs’ position was to depose three in Irvine and six in Chicago. Defendants claim their counteroffer was to bring all nine witnesses to Irvine; they call this their “business class/Irvine” compromise offer. (Toshiba Corporation’s Reply, at 2). Plaintiffs claimed that at one point the defendant offered to bring three to Chicago — a claim emphatically denied by Toshiba. Presumably this “offer” was for plaintiffs to pay business class airfare, which the plaintiffs rejected. According to defendants, they then offered to bring all nine witnesses to Irvine with plaintiffs paying economy fair. But this offer, too, was rejected. (Id.). Not so, according to the plaintiffs: no such offer was ever made. But, so divergent and clashing are the parties’ versions of their exchanges, it is impossible to know with certainty what offers and counter-offers passed between them and which portions were actually rejected or accepted.
At the hearing on April 25, 2007, the parties appeared to be on the brink of compromise, with the plaintiffs agreeing to pay coach airfare for six of the witnesses to come to Irvine, while the three “technical” witnesses to come to Chicago at the plaintiffs’ expense. After consultation with their counsel over a two day period, Toshiba rejected the compromise.
After a review of the parties’ submissions and the relevant factors at play in this dispute, 1 order that Toshiba:
1) produce the three “technical witnesses” — apparently Messrs. Hashizume, Wariishi and Uehigasaki — for deposition in Chicago, with the costs of coach airfare and reasonable accommodations for Mr. Uehiga-saki to be paid by the plaintiffs. Toshiba shall bear all the costs of airfare and accommodations for Messrs. Hashizume and Warii-shi;
2) the remaining six depositions shall take place in Irvine, California where Toshiba maintains a large subsidiary and to which its witnesses have traveled extensively over the past 18 months. The costs of coach airfare will be borne by the plaintiffs, and all other costs will be paid by Toshiba.
ANALYSIS
A.
As a general rule, a party may unilaterally choose the place for deposing an opposing party, subject to the granting of a protective order designating a different place.
This provisional preference is not totally inapplicable because Toshiba has counterclaims for declaratory judgment. Counterclaims of non-infringement, patent invalidity, and unenforceability are compulsory in this context, see Fed.R.Civ.P. 13(a), Competitive Technologies, Inc. v. Fujitsu Ltd.,
Toshiba has accorded the “presumption” an almost mandatory quality. But there are varying kinds of presumptions: there is the bursting bubble presumption, the permissive presumption, the mandatory rebuttable presumption. See United States v. Wurzinger,
The breadth of that discretion has led a number of courts to characterize the presumption as merely a kind of general rule that “facilitates determination when other relevant factors do not favor one side over the other.” Bank of New York v. Meridien BIAO Bank Tanzania Ltd.,
Among the more significant factors to which courts often look are whether the time, expense, and inconvenience of travel presents a special hardship for the deponent, Afram Export,
Obviously, conducting depositions in Japan, over a dozen time zones away and on the other side of the International Dateline, would severely compromise — to put it mildly — the court’s ability to intervene should problems arise. This is such a case. Japan is 14 hours ahead of Chicago. Thus, while depositions are going on in Tokyo, Chicago judges — at least most of them — are not conducting judicial business, and the courts are closed. Indeed, it was this time difference that prompted Toshiba’s Chicago’s counsel to request additional time to consult with Toshiba to see if the dispute could finally be resolved when all that remained was the question of the venue for the three technical witnesses. After all, I was told, “it was the middle of the night in Japan” and thus the client was unavailable for personal consultation. The logistical problems that made consultation with her clients difficult if not impossible are no different for judges who may be required to involve themselves in disputes, the immediate resolution of which would be essential.
Toshiba disputes none of this. Instead, it argues that there have been no discovery disputes thus far, so there can only be speculation as to whether disputes might arise at the depositions. (Toshiba Corporation’s Opposition, at 4-6). There are three basic flaws in the argument. First, the present dispute belies Toshiba’s conclusion that there have been no disputes. Second, while it is impossible to forecast “events still in the womb of time,” Dennis v. United States,
“Judges are entitled to approach many empirical issues with a set of prior beliefs based on experience and when the record is silent, they may make decisions based on those priors.” United States v. Babul,
B.
Toshiba’s claim of undue burden resulting from jet lag is unpersuasive. Many
Of the nine witnesses designated by Toshiba, at the very least, three are no strangers to frequent business travel to the United States, including the District of Columbia and New York. Mamoru Wariishi is senior manager in international sales — a title from which the inference may be drawn that he is likely no stranger to travel to the United States. The inference is supported by the facts: he has been to the United States ten times on business over the last 18 months. (Decl. of Mamori Wariishi). Two trips were to New York, seven were to Irvine, California, and one was to both New York and Irvine.
Somewhat less well-traveled, yet not infrequent visitors to the United States are Hiro-shi Hashizume, Masanori Inoue, Akira Takei, and Hirotoshi Abe. Mr. Hashizume in the senior manager of the imaging process design department and has made three trips to the United States — two to the West Coast and one to the East Coast — in the previous year-and-a-half. He foresees at least one more trip to the United States in the coming weeks. (Decl. of Hiroshi Hashizume). Masa-nori Inoue is a senior manager in the intellectual property department. He has traveled to the United States three times in the last 18 months, with two trips to Los Ange-les, and one trip to Cleveland and Washington D.C., during which he passed through Chicago. (Decl. of Masanori Inoue). Akira Takei has also made three trips — two to Palo Alto, California and one to Washington D.C. (Decl. of Akira Takei). Hirotoshi Abe, a group manager in the television and visual media department, has made recent trips to San Jose, California and Las Vegas, Nevada. (Decl. of Hirotoshi Abe).
Less well-traveled are Hirofumi Nishikawa and Takeshi Iwata, who are group managers in PC development. Neither has been to the United States in the last 18 months. (Decís, of Hirofumi Nishikawa and Takeshi Iwata).
In the end, given the recent travel experiences of the nine witnesses, the minimal difference between the duration of a flight from Japan to Irvine, California, and a flight to Chicago, and the international nature of Toshiba’s business, Toshiba has failed to show that the time and inconvenience of travel presents a special hardship for the witnesses. See Afram Export,
That leaves the question of how the expenses should be allocated. Courts have wide discretion in attaching conditions concerning the payment of expenses. 8A C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure, § 2112 at 75 (1994); Spears v. City of Indianapolis,
In light of Toshiba’s willingness to have witnesses deposed in Irvine and in light of its substantial facilities there, Toshiba shall pay the costs of lodging and meals for the six witnesses. Plaintiffs shall be responsible for paying for coach airfare for these witnesses See P.H. Intern. Trading,
C.
Finally, there is the argument of undue burden that is said to result from requiring indispensable senior level employees to leave Japan and travel to the United States to be deposed. Even if one were to ignore the fact that the regularity of their travel to the United States dilutes the claim of indispensability, it does not come with particularly good grace for Toshiba to complain about a situation that it has created. Not surprisingly, claims of burden and prejudice are inevitably rejected when the complaining party is the author of its own dilemma. Cf. Anderson v. Mt. Clemens Pottery Co.,
Highly placed executives are not immune from discovery, and the fact that an executive has a busy schedule cannot shield him or her from being deposed. General Star Indemnity Co. v. Platinum Indemnity Ltd.,
CONCLUSION
For the foregoing reasons, plaintiffs’ motion to compel [# 257] is GRACED in part, and DENIED in part.
Notes
. Despite the fact that plaintiffs decided after filing their initial lawsuit to add a Japanese corporation as a defendant and represented to Judge St. Eve that they would need additional time because of travel to Tokyo for depositions, they now have said that they should not be put to what they describe as the undue burden of deposing nine 30(b)(6) witnesses in Japan.
. Despite the fact that Toshiba-Japan is a global giant and the nine, designated 30(b)(6) witnesses have traveled to the United States a total of thirty times in the last 18 months — a fact initially made known after I ordered the defendants to provide the information — Toshiba insists that there is a meaningful distinction between taking a deposition in Irvine and taking one in Chicago, and that a court, if it is to act in a principled fashion, must prefer Irvine as the correct locus of the depositions.
. Both cases involved motions for a new trial based on the government’s suppression of the same evidence against different defendants, who were members of the El Rukn street gang. In Boyd, the district court found that the suppression mandated a new trial. In Williams, the court on the same record came to the opposite conclusion. Chief Judge Posner authored both opinions for a unanimous panel, which affirmed the seemingly irreconcilable decisions as within that spectrum of decision-making inherent in the very concept of discretion, saying, "Chief Judge Aspen and Judge Mills might reach opposite results on the same record yet both be operating within the outer limits of their lawful discretion.” Williams,
. Japan is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Japanese law authorizes a deposition in Japan for use in United States courts only if (1) the witness or party is willing to be deposed, (2) the deposition takes place on United States consular premises, (3) a consular officer presides over that deposition, pursuant either to a letter rogatory issued by a United States court or to a court order that specifically authorizes a U.S. consular officer to take the deposition on notice, and each participant traveling from the United States to Japan to participate in the deposition obtains a "deposition visa.” See Consular Convention and Protocol, Mar. 22, 1963, U.S.-Japan, art. 17(1)(e)(ii), 15 U.S.T. 768; Fed.R.Civ.P. 28(b); 22 C.F.R. §§ 92.49-92.71; In re Application for Order Quashing Deposition Subpoenas, dated July 16, 2002,
. Hence, it is not entirely clear — especially from excised transcripts — which witnesses are meant by references to "three witnesses who are going to be here in April ..“witnesses already in the United States ..or “witnesses being produced in California and New Jersey....” (Plaintiffs' Reply, Ex. 1, at 43, Ex. 2, Ex. 3).
. Toshiba has not properly moved for a protective order. It dropped a footnote to the final sentence of its opposition brief to plaintiffs motion to compel which says, "Toshiba cross-moves for a protective order.” (Toshiba Corporation's Opposition, at 15 n. 16). That is not a motion. Local Rule 5.3. What is more, Toshiba com
. Ms. O'Toole’s March 30th letter in response to my request for information about travel over the last 18 months reflected that Mr. Wariishi had been to New York 4 times (not 3) for a total stay of 10 days in that city. This number may not quite be exact since one of the trips was apparently split between New York and Irvine.
. It is not entirely clear that these 2 witnesses are "technical” witnesses. If they are not, and thus are being deposed in Irvine, Toshiba is nonetheless responsible for their travel costs, lodging and meals.