Summary
granting plaintiff's motion for initial telephonic deposition, provided that second deposition would be in person
Summary of this case from Johnson v. SagerOpinion
Civ. No. 93-934 (HLS)
October 7, 1993, Filed
For COLETTE ANGUILE, plaintiff: LYNDA DIANE BAYDIN, MORRISTOWN, NJ.
For ALAIN GERHART, defendant: WALTER KENNETH ABRAMS, DALTO & ABRAMS, SOUTH PLAINFIELD, NJ.
AMENDED OPINION
INTRODUCTION
This matter comes before the court upon the application of plaintiff Colette Anguile to be deposed telephonically, pursuant to Fed. R. Civ. P. 30(b)(7). The court will treat plaintiff's initial application for a telephonic deposition, set forth in her proposed discovery plan of August 12, 1993, as a motion. Defendant Alain Gerhart has submitted opposition to plaintiff's motion. Pursuant to Fed. R. Civ. P. 78, oral argument was not heard.
BACKGROUND
This is an unusual case involving exotic locales and novel claims. The suit alleges intentional and negligent infliction of emotional distress, intentional interference in custodial relations, intentional interference with parental rights, and defamation. The plaintiff is a citizen of Gabon, a small nation located on the west coast of Africa. The defendant is a French citizen who currently resides in Middlesex County, New Jersey. The parties met in the summer of 1974, while the defendant was working in Gabon. Early in 1975, the plaintiff became pregnant with the defendant's child. In the autumn of 1975 the plaintiff traveled to France where she gave birth to Samantha Gerhart on November 20.
In January 1976, while the plaintiff was pursuing a baccalaureate degree in Tours, France, the defendant took Samantha to Gabon to stay with the plaintiff's family. The plaintiff alleges that by the time she returned to Gabon in the summer of 1976, the defendant had sought custody of Samantha. The plaintiff further alleges, and the defendant disputes, that plaintiff was awarded legal custody of Samantha and defendant was granted visitation rights.
The plaintiff claims that on and July 14, 1977, the defendant abducted Samantha. The plaintiff indicates that she could not locate the whereabouts of the defendant and Samantha. Plaintiff claims she had no contact with defendant until 1987. From 1977 to 1991, plaintiff did have contact with a couple known as Mr. and Mrs. Walker who were friends of the defendant. Plaintiff claims that defendant withheld all contact between Samantha and herself until July 28, 1991, when Samantha and the plaintiff met at the home of defendant's mother in Switzerland. The plaintiff asserts that after this meeting she tried to resume contact with Samantha, yet the defendant had alienated Samantha from her. Specifically, the plaintiff maintains that the defendant, a Caucasian, told Samantha that the plaintiff was an "ignorant, Black woman whose country engaged in such savage acts as eating monkey's brains and decapitation." (Compl., Count 5, P 2).
The plaintiff filed her complaint on February 3, 1993 in the Superior Court of New Jersey, Law Division, Middlesex County. On March 9, 1993, the defendant filed a petition for removal to federal court, in accordance with 28 U.S.C. § 1446(b). In a proposed discovery plan dated August 12, 1993, plaintiff's counsel requested, pursuant to Rules 28(b)(1); 30(b)(7); and 32(a)(3) , that plaintiff, as well as two witnesses residing in Gabon and one witness residing in Canada, be deposed by telephone. Counsel for the defendant had submitted a letter and informal brief on August 11, 1993 in which he agreed to the telephone deposition of the Gabonese and Canadian witnesses, but opposed the telephone deposition of plaintiff. The plaintiff replied in a letter brief dated August 31, 1993. In her reply, the plaintiff certified that coming to the forum for a deposition would impose an undue burden on her because of financial hardship and because she is unable to take vacation leave until 1994.
Rule 28(b) provides:
In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States ….
Rule 30(b)(7) provides:
The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken in the district and at the place where the deponent is to answer questions propounded to the deponent.
Rule 32(a)(3) provides in pertinent part:
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds … (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition ….
The matter is further complicated by the fact that the procedures proposed for taking plaintiff's telephone deposition in Gabon entail significant practical difficulties. For example, the parties must undergo a lengthy process to schedule the deposition with the American Consulate in Gabon. (Plaintiff's Proposed Discovery Plan of 8/12/93, at 3-4).
For the following reasons, plaintiff's deposition may be taken by telephone subject to the following conditions: (1) the plaintiff must pay the cost of the telephone deposition and (2) the plaintiff must be deposed in the forum forty-eight hours prior to trial.
DISCUSSION
Fed. R. Civ. P. 30(b)(7) provides in pertinent part, "the court upon motion may order that a deposition be taken by telephone." The defendant maintains that the plaintiff may not be deposed by telephone because: (1) the plaintiff has not demonstrated that appearing for deposition in her chosen forum would cause her extreme hardship and (2) the defendant would be prejudiced if not permitted to observe the plaintiff's demeanor.
The defendant chiefly relies on Clem v. Allied Lines International Corp., 102 F.R.D. 938 (S.D.N.Y. 1984), in which the court denied a Hong Kong plaintiff permission to have his deposition taken by telephone. The Clem court held that a plaintiff who seeks to have his deposition taken by telephone while abroad must demonstrate that deposition in the forum would impose an extreme hardship on him. Id. at 940. The plaintiff in the instant case attempts distinguish her situation from that of the plaintiff in Clem and to show that she would suffer extreme financial hardship if required to be deposed in the forum.
Clem is an anomaly in the line of modern cases dealing with Fed. R. Civ. P. 30(b)(7). It has been disregarded by several courts in favor of the well-reasoned approach set forth in Jahr v. IU Intern. Corp., 109 F.R.D. 429, 430-431 (M.D.N.C. 1986):
Nothing in the language of Rule 30(b)(7) requires that a telephonic deposition may only be taken upon a showing of necessity, financial inability, or other hardship ….
The Court finds that Rule 30(b)(7) should be construed in para materia with subsection (b)(4). Both have a joint purpose of reducing the cost of federal litigation by providing alternatives to traditional stenographic depositions. The courts have not required a showing of extraordinary circumstances before granting Rule 30(b)(4) motions. (citations omitted)…. Thus, upon giving a legitimate reason for taking a deposition telephonically, the movant need not further show an extraordinary need for the deposition. Rather, the burden is on the opposing party to establish why the deposition should not be conducted telephonically.
(emphasis supplied). The court also explained that in civil cases, "the better rule is that a request for a telephonic deposition should not be denied on the mere conclusory statement that it denies the opportunity for face-to-face confrontation." Id. at 432. Jahr was followed in Bywaters v. Bywaters, 123 F.R.D. 175 (E.D. Pa. 1988); Mercado v. Transoceanic Cable Ship Co., Inc., 1989 U.S. Dist. LEXIS 8484, No. 88-5335, 1989 WL 83596 (E.D. Pa. July 25, 1989); Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444 (W.D. Mich. 1993); and Bachman Company v. Anthony Pinho, Inc., 1993 U.S. Dist. LEXIS 12361, No. 91-5679, 1993 WL 346063 (E.D. Pa. Sept. 9, 1993).
This court finds the Jahr analysis to be correct. Moreover, the court is aware that it "must employ discretion and caution to ensure that no one is prejudiced by this relatively untested method of discovery." Mercado v. Transoceanic Cable Ship Co., Inc., 1989 U.S. Dist. LEXIS 8484, 1989 WL 83596 at *1. Therefore, the court will permit plaintiff's deposition to be taken by telephone subject to the following conditions: (1) the plaintiff must pay the cost of the telephone deposition and (2) the plaintiff must be deposed in the forum forty-eight hours prior to trial. The plaintiff may also opt to waive her request for a telephone deposition and come to the forum to be deposed.
The court permits the telephone deposition of plaintiff in order to facilitate discovery and because the defendant would not be prejudiced by a lack of face-to-face questioning at this juncture. However, the court is faced with the practical problem that the cost of the plaintiff's deposition taken in either manner will be high. Both parties seek to have the other bear the cost of the deposition. Having commenced this action, plaintiff cannot dispute that she has an obligation to provide discovery in the form of a deposition. Nor can plaintiff visit the expense of the deposition upon defendant, for she is the one who asserts the claims. Thus, the cost of the telephonic deposition shall be the responsibility of plaintiff. The plaintiff may choose to be deposed in the forum if she determines it to be more cost-effective. In consideration of plaintiff's vacation schedule, the court would permit the plaintiff to be deposed in the forum in January 1994 and would amend the scheduling order accordingly.
In addition, the court agrees with the defendant that counsel's ability to see the plaintiff and judge her demeanor is important in this case where the plaintiff is the key witness to most of the relevant facts and where the plaintiff's emotional suffering is squarely at issue. The court is also mindful of plaintiff's difficulties in traveling to the United States at this time. Thus, if the plaintiff is deposed by telephone, the court finds that the needs of both parties would be met by requiring the plaintiff to also be deposed in the forum forty-eight hours before commencement of trial.
CONCLUSION
The plaintiff's deposition may be taken by telephone subject to the following conditions: (1) the plaintiff must pay the cost of the telephone deposition and (2) the plaintiff must be deposed in the forum forty-eight hours prior to trial.
JOEL A. PISANO
U.S. MAGISTRATE JUDGE