Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON JOSE GUADALUPE PEREZ-FARIAS, ) et al., NO. CV-05-3061-MWL
) ) ORDER GRANTING DEFENDANTS' Plaintiffs, ) MOTION FOR A PROTECTIVE ORDER ) vs. ) )
GLOBAL HORIZONS, INC., et al., ) ) )
Defendants. ______________________________) )
Before the Court is Defendant Global Horizons Inc.'s ("Global's") motion for a protective order to quash Plaintiffs' notice of deposition for Defendant Mordechai Orian ("Orian") in Yakima, Washington. (Ct. Rec. 122).
I. BACKGROUND
On June 12, 2006, Plaintiffs issued a notice of deposition for Orian to take place in Yakima, Washington, on July 13, 2006. (Ct. Rec. 123-1, Exh. A). Global thereafter contacted counsel for Plaintiffs in an attempt to reschedule the deposition for California, where Orian lives and works. [1] (Ct. Rec. 123-1, p. 2). Counsel for Plaintiffs refused. (Ct. Rec. 123-1, pp. 2-3). Plaintiffs' counsel offered to pay half of Orian's expenses for Orian to travel to Washington for his deposition. (Ct. Rec. 129, p. 2). Global rejected the offer. (Ct. Rec. 123-1, Exh. C). Counsel for Defendants Green Acre Farms, Inc., and Valley Fruit Orchards, LLC, agreed to pay half the expense of Orian's coach airfare from Los Angeles to Yakima, Washington, and Plaintiffs are willing to pay the remaining half of this expense. (Ct. Rec. 129, pp. 2-3). Global refused these requests and now seeks a protective order quashing the deposition. (Ct. Rec. 123). II. GLOBAL'S MOVING ARGUMENTS
Global contends that this Court should issue a protective order to quash Plaintiffs' notice of deposition of Orian. (Ct. Rec. 123-1, p. 3). Global indicates that, in 2005, they had their Washington State Farm Labor Contractor's License revoked and, therefore, they no longer operate in the state of Washington. (Ct. Rec. 123-1, Exh. B, p. 2). Accordingly, Orian, a full time resident of California and the President of Global, no longer conducts any business in the state of Washington. (Ct. Rec. 123- 1, Exh. B, p. 2). As a result, Global asserts that it is an unnecessary burden of time and money for Orian's deposition to take place in Washington rather than in California. (Ct. Rec. 123-1, p. 3).
Global argues that the general rule is that a corporation and its principals should be deposed at the corporation's place of business, absent special conditions. Clairmont v. Genuity, Inc. , 2004 U.S. Dist. LEXIS 20784 (W.D. Wash. 2004) ("In the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located . . . . This rule applies even when the deponent is a defendant in the action"); Cadent Ltd. v. 3M Unitek , 232 F.R.D. 625, 628 (C.D. Cal. 2005) ("The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business"). Global's principal place of business is in California, and Global contends that Plaintiffs have made no showing of special conditions that would require the deposition of Orian to take place in Washington as opposed to California. (Ct. Rec. 123-1, pp. 3-4).
III. PLAINTIFFS' RESPONSE
Plaintiffs argue that it would be more convenient and less expensive for all parties if the deposition was held in Yakima, Washington. (Ct. Rec. 129, pp. 3-4). Specifically, Plaintiffs indicate that all of the attorneys in this matter have offices in Washington state, with the exception of counsel for Global, whose office is in Chicago, Illinois; all Plaintiffs reside in Yakima County; and the businesses of Defendants Green Acre Farms and Valley Fruit Orchards are similarly located in Yakima County. (Ct. Rec. 129, p. 3; Ct. Rec. 130). Plaintiffs additionally note that Orian traveled to Washington state regularly in the course of doing business with Green Acre Farms and Valley Fruit Orchards; Global's website documents that Orian has been present in the Yakima Valley during the pruning season, the thinning season and to present at a local conference; Orian traveled to Washington in April to appear at a press conference and enter into a contract with the United Farm Workers; and Global continues to maintain a registered agent in Yakima, Washington. (Ct. Rec. 129, p. 3; Ct. Rec. 130). Accordingly, Plaintiffs contend that it will be more convenient, less time consuming, and less expensive for the parties to hold Orian's deposition in Washington. (Ct. Rec. 129, pp. 5-7).
Plaintiffs assert that Global has failed to allege any undue burden or expense associated with having his deposition taken in Washington. (Ct. Rec. 129, p. 4). Plaintiffs further assert that they are of limited financial means and are less able to bear the expense of travel than a large corporate defendant like Global. (Ct. Rec. 129, p. 6). Finally, Plaintiffs indicate that they remain willing to pay half of the coach airfare for Orian to travel from Los Angeles to Yakima and that Defendants Green Acre Farms and Valley Fruit Orchards are willing to share this cost to avoid the expense and inconvenience of traveling to California. (Ct. Rec. 129, p. 8).
IV. GLOBAL'S REPLY
Global responds that the general rule is that a corporate defendant must be deposed at its principal place of business. (Ct. Rec. 131). Global asserts that neither Global nor Orian chose to be sued in Washington, they no longer have business there, and their counsel is not located there; accordingly, Orian is entitled to be deposed at Global's place of business in Los Angeles, California. ( Id .)
Global contends that "when the plaintiff seeks to depose the defendant at a location other than the defendant's place of business and the defendant objects, the plaintiff has the affirmative burden of demonstrating peculiar circumstances which compel the court to order the depositions to be held in an alternate location." Marin v. Nationwide Fed. Credit Union , 229 F.R.D. 362, 363 (D. Conn. 2005). Global argues that the deposition notice of Orian should be quashed, and Orian should be deposed in Los Angeles, California. (Ct. Rec. 131, p. 6).
V. DISCUSSION
A. Protective Orders
For "good cause shown," a court may issue a protective order that "discovery may be had only on specified terms and conditions." Fed. R. Civ. P. 26(c)(2). Fed. R. Civ. P. 26(c) is a safeguard to protect parties and witnesses in view of Fed. R. Civ. P. 26(b)'s broad discovery rights. United States v. Columbia Broadcasting System, Inc. , 666 F.2d 364, 368-369 (9 th Cir. 1982). Under Fed. R. Civ. P. 26(c), this Court may issue protective orders for persons subject to a subpoena and "for good cause shown . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place."
To obtain a protective order, the party resisting discovery or seeking limitations must show "good cause" for its issuance. Fed. R. Civ. P. 26(c); Jepson, Inc. v. Makita Elec. Works, Ltd, 30 F.3d 854, 858 (7 th Cir. 1994). Generally, a party seeking a protective order has a "heavy burden" to show why discovery should be denied and a strong showing is required before a party will be denied the right to take a deposition. Blankenship v. Hearst Corp. , 519 F.2d 418, 429 (9 th Cir. 1975). "If the motion for protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery." Fed. R. Civ. P. 26(c).
B. Place of Deposition
The deposition of a party (or its officers, employees, etc.) may be noticed wherever the deposing party designates, subject to the Court's power to grant a protective order. Turner v. Prudential Ins. Co. of America , 119 F.R.D. 381, 383 (M.D. N.C. 1988). The general rule is that, while a court may order a defendant to appear at any convenient place, case law indicates that it will be presumed that the defendant will be examined at his residence or place of business or employment. Farquhar v. Shelden , 116 F.R.D. 70, 72 (E.D. Mich. 1987). In the absence of special circumstances, "a party seeking discovery must go where the desired witnesses are normally located." Id .
C. Analysis
Global's corporate offices are located in Los Angeles, California, and Orian currently resides in Malibu, California, thus, under the general rule, the proper place for the deposition of Orian is California. Plaintiffs, however, chose to notice the deposition for Washington, rather than California. Therefore, special circumstances must be presented in order to overcome the general rule and to warrant holding the deposition in the state of Washington.
A protective order may be obtained as to the location of the deposition. Fed. R. Civ. P. 26(c). Federal Rule of Civil Procedure 26(c) provides that a court in which the action is pending "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place."
In making its order, the Court considers the convenience of the parties and relative hardships in attending at the location designated. The burden is on the person seeking the protective order to demonstrate good cause. U.S. v. $160,066.98 from Bank of America , 202 F.R.D. 624, 626 (S.D. Cal. 2001).
Global argues that it is unduly expensive and inconvenient for Orian, Global's President, to travel to Washington to attend a full-day deposition. (Ct. Rec. 131, p. 5). Only " undue burden or expense" provides a potential basis for relief from legitimate discovery demands. U.S. v. $160,066.98 from Bank of America , 202 F.R.D. at 628. "Undue" burden requires parties to show more than expense or difficulty. Id . Here, the travel expenses are not an undue expense since Plaintiffs and Defendants Green Acre Farms and Valley Fruit Orchards agree to bear the costs associated with Orian's travel to attend the deposition in Washington. (Ct. Rec. 129, p. 8). Moreover, in light of the potential corporate resources, Global has not shown that the expense of this travel is unreasonable. U.S. v. $160,066.98 from Bank of America , 202 F.R.D. at 628-629 (Rejecting arguments that airfare of $3,031 to $4,712 per person from Pakistan is undue burden because "no showing of inability to afford that expenditure due to impecuniousness").
Nevertheless, Orian, a named defendant, is not before this Court by choice. As noted by Global, neither Global nor Orian chose to be sued in Washington, they no longer have business in Washington, and their counsel is not located in that state. (Ct. Rec. 131, p. 3). The evidence before the Court is that Orian does not currently have any contact with or do any business in the state of Washington, and he currently resides in California. Global's corporate offices are also located in California, and Counsel for Global and Orian do not maintain offices in Washington. In addition, requiring Orian to travel to the state of Washington to attend a full day deposition will necessitate an overnight stay and more than a full day away from his office. (Ct. Rec. 131, p. 5). Furthermore, courts have held that plaintiffs normally cannot complain if they are required to take discovery at great distances from the forum. U.S. v. $160,066.98 from Bank of America , 202 F.R.D. at 627.
The Court finds that Plaintiffs' inconvenience and expense associated with deposing witnesses outside of Washington were foreseeable, are not "undue," and do not necessarily outweigh Orian's potential burden and inconvenience if required to travel to Washington. The Court finds that no special circumstances have been shown to exist in this case in order to depart from the general rule that a plaintiff may expect to depose the defendant at the latter's "residence or place of business." Farquhar , 116 F.R.D. at 72.
VI. CONCLUSION
For the foregoing reasons, the Court GRANTS Global's motion for a protective order regarding the place of Orian's deposition. ( Ct. Rec. 122 ). The noticed deposition of Orian, scheduled to take place in Yakima, Washington, on July 13, 2006, is QUASHED . The deposition of Orian shall be noticed and proceed at a date and time convenient to all parties at Global's principal place of business in Los Angeles, California, or at another location in California as may be agreed upon by the parties.
The District Court Executive is directed to enter this order and forward copies to counsel for Plaintiffs and Defendants.
IT IS SO ORDERED.
DATED this 27 th day of July, 2006.
S/ Michael W. Leavitt MICHAEL W. LEAVITT UNITED STATES MAGISTRATE JUDGE
[1] Orian does not object to being deposed in California. (Ct. Rec. 123-1, p. 3).