Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Braden Kirk Ball, Jr., Pensacola, FL, for Plaintiffs.
Mary Allie Elizabeth Boller, Thomas Richard Boller, Thomas R. Boller PC, Mobile, AL, for Defendant.
ORDER
Michael J. Frank, United States Magistrate Judge
This cause is before this Court on Plaintiffs’ motion to compel the Defendant to: (1) appear in the Northern District of Florida for a deposition; and (2) appear in the Northern District of Florida for mediation. (Doc. 31). For the reasons set forth below, this motion will be denied without prejudice.
Initially the Plaintiffs also sought to compel the Defendant to produce initial disclosures, but the parties resolved that issue without court intervention. (Doc. 38). Accordingly, that portion of the motion to compel is now moot.
I. Background
On April 3, 2018, Plaintiffs initiated this action in the Circuit Court of Escambia County, Florida. (Doc. 1). On June 4, 2018, Defendant filed a "Notice of Removal," pursuant to 28 U.S.C. § 1441(b). (Id. ). Plaintiff DeepGulf, Inc. ("DeepGulf"), is organized under the laws of Florida and has its principal place of business in Florida. (Id. at 2, ¶ 5). Defendant, Marc M. Moszkowski, is a citizen of the French Republic and apparently remains the President of DeepGulf in some fashion. (Doc. 9 at 2; Doc. 1 at 22, ¶ 7). He is one of three directors of DeepGulf and claims to be its largest shareholder. (Doc. 9 at 2). Plaintiffs alleged that Toke Oil and Gas, S.A. is a wholly-owned subsidiary of DeepGulf that is domiciled in East Timor. (Doc. 1 at 22). The Defendant, however, contends that it is a fraudulent corporation. (Doc. 1 at 2).
In their complaint, the Plaintiffs allege breach of a non-competition agreement, civil theft, conversion, and fraudulent misrepresentation. Plaintiffs seek, among other relief, an accounting, damages, injunctive and declaratory relief, court costs, and attorney’s fees. On August 22, 2018, Defendant, proceeding pro se, filed his answer asserting counterclaims against the Plaintiffs. (Doc. 9). The counterclaims appear to be for fraud, breach of contract, and defamation. (Doc. 9). As relief, the Defendant seeks damages, injunctive relief, costs, and attorney’s fees.
I. Discussion
A. Motion to Compel the Defendant’s Deposition
"[T]he purpose of discovery is to provide a mechanism for making relevant information available to the litigants." Lozano v. Maryland Cas. Co., 850 F.2d 1470, 1473 (11th Cir. 1988) (citing Fed.R.Civ.P. 26 advisory committee notes). "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). Liberal discovery rules allow litigants to see the full breadth of the evidence that exists in a case. This helps litigants avoid surprises, leads to the speedier settlement of cases, and helps prevent miscarriages of justice in cases where evidence would otherwise be available to only one party. See Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 902 (6th Cir. 1988). Rules favoring broad discovery help "make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-87, 2 L.Ed.2d 1077 (1958).
Consistent with these policies, Rule 30(a) of the Federal Rules of Civil Procedure authorizes parties to depose witnesses, including an opposing party. See Fed.R.Civ.P. 30(a). Depositions can be extremely important to the discovery of relevant facts and the acquisition of key admissions from parties or witnesses. In some cases, depositions are "indispensable." Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989).
"A party has a general right to compel any person to appear at a deposition, through issuance of a subpoena if necessary." CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002) (citing Fed.R.Civ.P. 30(a) ). More specifically, "each party to a civil law suit has the right to take depositions of the other party, absent a protective order entered by the trial judge." Colonial Times, Inc. v. Gasch, 509 F.2d 517, 521 (D.C. Cir. 1975); see Jules Jordan Video, Inc. v. 144942 Can. Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (observing that "under Rule 30 any person’s testimony may be taken by deposition"); Nat’l Life Ins. Co. v. Hartford Acc. & Indem. Co., 615 F.2d 595, 599 (3d Cir. 1980) ("The Federal Rules of Civil Procedure specifically give a party the right to question a witness by oral deposition."). The right to take depositions is a "broad" one because depositions are such an important tool of discovery. See Credit Lyonnais, S.A. v. SGC Intern., Inc., 160 F.3d 428, 429 (8th Cir. 1998).
Rule 30(b)(1) states: "A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition ...." Fed.R.Civ.P. 30(b)(1). Thus, to initiate a deposition of an opposing party, the deposing party must first notice the deposition by serving the notice on the opposing party. See Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018) ("The only requirement is that the party be ‘served with proper notice’ of the deposition beforehand."). "If a person is a party, a simple notice of deposition is sufficient to compel attendance ...." Jules Jordan Video, Inc., 617 F.3d at 1158; Peitzman v. City of Illmo, 141 F.2d 956, 960 (8th Cir. 1944) ("Service of the notice upon the attorney for defendants was all that was required to make it incumbent upon the parties to appear."); Collins v. Wayland, 139 F.2d 677, 678 (9th Cir. 1944) ("The notice for taking appellant’s deposition was a proper notice and was properly served. It is immaterial, if true, that no subpoena was served on appellant, for he was a party, and therefore no subpoena was necessary."). To be efficacious, however, the notice must be "reasonable" and must inform the opposing party of the date, time, and location of the deposition with sufficient time for compliance. See Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 173 (2014) (holding that a deposition notice was unreasonable when it was provided only five days before the deposition); Mims v. Cent. Mfrs. Mut. Ins. Co., 178 F.2d 56, 59 (5th Cir. 1949) (holding that deposition notices were unreasonable when they called "the taking of depositions of numerous witnesses on the same date, in scattered localities across the continent").
Before a party can move to compel a deposition, it first must show that it served notice of the deposition on the opposing party and that the opposing party failed to attend. Nuskey v. Lambright, 251 F.R.D. 3, 12 (D.D.C. 2008) (denying a motion to compel when the witness did not receive written notice stating the time and the place of the deposition); Wolk v. Seminole County, No. 6:05-cv-1722-Orl18KRS, 2007 WL 328685, at *1 n.1 (M.D. Fla. Jan. 31, 2007) ("Because no deposition had been noticed as of the date of filing of the motion, a motion to compel such a deposition is not ripe for consideration."). "Absent evidence that the witnesses at issue were given reasonable written notices stating the time and place of their depositions, as required by Rule 30(b)(1), or that they failed to comply with subpoenas compelling their attendance, pursuant to Rule 45, the Court has no authority to compel witnesses, including the parties, to attend any depositions." Pegoraro v. Marrero, 281 F.R.D. 122, 128 (S.D.N.Y. 2012); Siegel v. Truett-McConnell Coll., Inc., 13 F.Supp.2d 1335, 1337 (N.D.Ga. 1994) ("The court has no evidence before it that proper notice was given for any of defendants’ witnesses to appear at a deposition. The notice required for depositions is well-defined in the Federal Rules of Civil Procedure, Rule 30(b)(1) and (2). Without proper notice there can be no failure to appear."), aff’d on other grounds, 73 F.3d 1108 (11th Cir. 1995).
In their motion to compel, the Plaintiffs do not allege that they provided written notice to the Defendant and that he failed to attend. Therefore, their motion to compel the Defendant’s deposition is premature. With that said, in light of the parties’ filings with this court and the Defendant’s pro se status, some additional guidance regarding the location and timing of the Defendant’s deposition is warranted. Nothing stated below, however, should be taken as an indication of how this court might decide a subsequent motion to compel or a motion for a protective order.
The Defendant contends that he lives in France and lacks the funds to travel to the United States for a deposition. (Doc. 33 at 2, 8-11). He also makes conflicting claims about his ability to travel to the United States. Initially, he stated that he "has no visa to enter the United States ...." (Doc. 33 at 2). But Defendant alleged that he is a citizen of the French Republic. (Doc. 1 at 2, ¶ 5). French citizens generally are eligible to participate in the U.S. Visa Waiver Program, which means that the Defendant likely can "apply for admission to the United States for 90 days or less as nonimmigrant visitors for business or pleasure without first obtaining a nonimmigrant visa." Lacey v. Gonzales, 499 F.3d 514, 516 (6th Cir. 2007); see 8 U.S.C. § 1187(a)(1). Later, the Defendant asserted that he "is not allowed by U.S. authorities to enter the United States for purposes other than tourism or limited business ...." (Doc. 33 at 11). These vague remarks are insufficient to persuade this court that U.S. immigration law poses insurmountable impediments to the Defendant travelling to the United States to be deposed. This would not be the first time that a foreign national travelled to the United States to be deposed.
First and foremost, parties should confer in good faith to reach an agreement as to the date and location of a deposition. See Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 5-6 (D.D.C. 2007) (stating that, "[a]s a general policy, the Court encourages parties to set depositions in mutually agreeable locations."). A willingness to cooperate goes a long way toward resolving discovery issues. If the parties fail to reach an agreement, however, the proper situs for a deposition becomes more complicated and there are a number of presumptions, general rules, and factors that a court must consider in selecting a proper site for a deposition.
The Federal Rules of Civil Procedure do not mandate a particular situs for a deposition. Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1365 (7th Cir. 1985) ("The civil rules do not specify the place for deposing a party ...."). "As a general rule, ‘the party noticing the deposition usually has the right to choose the location ....’ " Buzzeo v. Bd. of Educ., Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y. 1998) (quoting 7 Moore’s Federal Practice— Civil § 30.20). The party initiating the deposition "may unilaterally choose the place for deposing an opposing party, subject to the granting of a protective order by the Court ...." Turner v. Prudential Ins. Co. of Am., 119 F.R.D. 381, 383 (M.D. N.C. 1988); see Fed.R.Civ.P. 30(b)(1) (notice for deposition stating time and place of the deposition). But this general rule falls by the wayside when dealing with a defendant who is not a resident of the locale designated by the plaintiff for a deposition.
The deposition of a non-resident defendant "is generally conducted at the defendant’s place of residence ...." Buzzeo, 178 F.R.D. at 392. "Because the Plaintiff has greater influence over the choice of forum, courts are more willing to protect defendants from having to come to the forum for the taking of his or her deposition than they are in the case of plaintiffs.’ " O’Sullivan v. Rivera, 229 F.R.D. 187, 189 (D. N.M. 2004) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2112 (1994) ); United States v. $ 160,066.98 from Bank of Am., 202 F.R.D. 624, 627 (S.D. Cal. 2001) (noting that because plaintiffs choose the forum, they "normally cannot complain if they are required to take discovery at great distances from the forum"); Payton v. Sears, Roebuck & Co., 148 F.R.D. 667, 669 (N.D.Ga. 1993) (noting that "it is the plaintiffs who bring the lawsuit and who exercise the first choice as to the forum" and thus "courts have held that plaintiffs normally cannot complain if they must take discovery at great distances from the forum"). "A defendant, on the other hand, does not choose the forum and, therefore, the Court is more likely to protect it from a deposition set in the forum district." Turner, 119 F.R.D. at 383.
In the words of one court:
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.
Grey v. Cont’l Mktg. Assoc., Inc., 315 F.Supp. 826, 832 (N.D.Ga. 1970). Thus, there "is a general presumption that a non-resident defendant’s deposition will be held where he or she resides or works." Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y. 1997); Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989); Turner, 119 F.R.D. at 383 (noting that "there is an initial presumption that a defendant should be examined at his residence or the principal place of business"); Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987); Pinkham v. Paul, 91 F.R.D. 613, 614-15 (D. Me. 1981); Gen. Leasing Co. v. Lawrence Photo-Graphic Supply, 84 F.R.D. 130, 131 (W.D. Mo. 1979).
As another court has stated, "because a non-resident defendant ordinarily has no say in selecting a forum, an individual defendant’s preference for a situs for his or her deposition near his or her place of residence— as opposed to the judicial district in which the action is being litigated— is typically respected." In re Outsidewall Tire Litig., 267 F.R.D. 466, 471 (E.D. Va. 2010); Metrex Research Corp. v. United States, 151 F.R.D. 122, 125 (D. Colo. 1993). "And this presumption applies with no less force when the defendant is domiciled in another country." In re Outsidewall Tire Litig., 267 F.R.D. at 471. Because a "foreign defendant may be more inconvenienced by having to travel to the United States than a defendant who merely resides in another state or in another judicial district, the presumption that the deposition should occur at a foreign defendant’s place of residence may be even stronger." Id.
But remember that the rationale for this rule is that the plaintiff initially chose the forum while the defendant is "not before the court by choice." Farquhar, 116 F.R.D. at 72; Buzzeo, 178 F.R.D. at 392. Accordingly, the plaintiff is generally required to bear any reasonable burdens of inconvenience that the action presents. Buzzeo, 178 F.R.D. at 392. This becomes more complicated in this case because the Defendant elected to file counter-claims against the Plaintiffs. The Defendant, therefore, is also a plaintiff for purpose of his counter claims. Thus, the Defendant himself voluntarily chose to proceed in the Northern District of Florida, or at least acquiesced in the Plaintiffs’ decision to proceed in this District.
As stated above, there is a presumption that a plaintiff may be deposed in the district in which he has initiated his action. The "Plaintiff in an action should expect to be deposed in the forum where the action is pending." Culhane v. MSC Cruises (USA), Inc., 290 F.R.D. 565, 566 (S.D. Fla. 2013); Levick v. Steiner Transocean, Ltd., 228 F.R.D. 671, 672 (S.D. Fla. 2005) (The general rule is that a plaintiff who brings suit in a particular forum may not avoid appearing for examination in that forum."); Instituto Per Lo Sviluppo Economico Dell’ Italia Meridionale v. Sperti Prods. Inc., 47 F.R.D. 530, 533 (S.D.N.Y. 1969) ("Ordinarily, a defendant is entitled to examine a plaintiff in the forum where plaintiff has chosen to sue. Where special circumstances are shown that outweigh any prejudice to the defendant, a court will exercise its discretion to designate a different place for the deposition."); Ellis Air Lines v. Bellanca Aircraft Corp., 17 F.R.D. 395, 396 (D. Del. 1955) ("There is a principle that a plaintiff having selected a particular forum for the adjudication of his case should be prepared to answer a notice of deposition in that locality."). Therefore, as long as the Defendant chooses to pursue affirmative claims for relief, this presumption applies.
There is also a presumption that deposition of an officer of a corporation take place at the corporation’s principal place of business. Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979). Defendant conceded that DeepGulf’s principal place of business is Florida. (Doc. 1 at 2, ¶ 5). More specifically, the Plaintiffs alleged that it was the Northern District of Florida. (Doc. 1 at 22). Plaintiffs also alleged that the Defendant is an officer, director, and one of the founders of DeepGulf. (Id. ). Nevertheless, this presumption carries less weight in a case such as this, where the corporation is pursuing claims against one of its officers.
Furthermore, the Local Rules for the Northern District of Florida generally require any party that seeks affirmative relief in this District to submit to a deposition in this District. Local Rule 26.1(B)(1) of the Local Rules for the U.S. District Court for the Northern District of Florida provides:
(B) Place of Depositions.
Unless the Court orders otherwise for cause,
(1) a party who asserts a claim for affirmative relief— other than costs and attorney’s fees— can be required to appear once in this District for a deposition ....
N.D. Fla. Loc. R. 26.1(b)(1). This Rule admits of exceptions, however, insofar as the general rule is prefaced by the notation that this court may order otherwise "for cause." Id.
"A district court has discretion to adopt local rules." Hollingsworth v. Perry, 558 U.S. 183, 191, 130 S.Ct. 705, 710, 175 L.Ed.2d 657 (2010); Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557 (1987); see 28 U.S.C. § 2071; Fed.R.Civ.P. 83. Rule 83 of the Federal Rules of Civil Procedure authorizes federal courts to promulgate local rules. See Fed.R.Civ.P. 83(a). Local rules have the force of law. See Hollingsworth, 558 U.S. at 191, 130 S.Ct. at 710; Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 148, 73 L.Ed. 243 (1929) ("a rule of court thus authorized and made has the force of law"); Cheshire v. Bank of Am., NA, 351 Fed.Appx. 386, 388 (11th Cir. 2009) (stating that a "valid local rule has the force of law."). Courts may dismiss an action for failure to comply with a local rule. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).
Certainly a court may consider a litigant’s financial means when considering whether there is "good cause"— if evidence on this point is submitted to the court. But indigence normally has not absolved a party seeking affirmative relief from his duty to submit to a deposition in the forum district. See Newman v. Metro. Pier & Exposition Auth., 962 F.2d 589, 591-92 (7th Cir. 1992) (holding that serious financial hardship was insufficient to overcome the presumption that a plaintiff’s deposition may be taken within the forum district); Gen. Leasing Co. v. Lawrence Photo-Graphic Supply, 84 F.R.D. 130, 131 (W.D. Mo. 1979). Furthermore, any litigant who seeks a protective order to preclude a deposition in a particular place, must establish with evidence an inability to attend a deposition at that place. A mere claim of indigence will not suffice. Furthermore, any motion for a protective order should include an offer to appear for a deposition at an alternative location. Merely throwing up one’s hands and saying "I can’t afford to be deposed" will not allow a party to escape a deposition.
Ultimately "the district court has great discretion in designating the location of taking a deposition ...." Thompson v. Sun Oil, Co., 523 F.2d 647, 648 (8th Cir. 1975) (per curiam); see Afram Export Corp., 772 F.2d at 1365 (noting a district court’s broad discretion to set the location of a deposition); Asea, Inc. v. S. P. Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981) (holding that a "district judge has discretion to direct the place of a deposition" and it is "not an abuse of discretion for the district judge to protect" a "witness from the burden of traveling overseas for examination"); Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569, 571 (W.D. Va. 1998) (noting that a district court enjoys "broad discretion to determine the appropriate location for a deposition and may attach conditions, such as the payment of expenses, as it finds appropriate"); Farquhar, 116 F.R.D. at 72 ("It is within the discretion of the court to designate the location for a taking of depositions, and each application must be considered on its own facts and equities."); Financial Gen. Bankshares, Inc. v. Lance, 80 F.R.D. 22, 23 (D.D.C. 1978) ("The matter of the location of depositions of defendants ultimately is within the discretion of the Court ....").
In exercising its discretion concerning where a deposition should be held, courts can consider all relevant factors. In a particular case, these might include:
(1) the citizenship, location, and convenience of the deponent;
(2) the citizenship, location, and convenience of the parties;
(3) the location and convenience of the attorneys for the parties and for the deponent;
But see Mill-Run Tours, Inc., 124 F.R.D. at 551 (noting that the convenience of the attorneys is "less important than any hardship on the parties").
(4) the plaintiff’s preferred site for the deposition;
(5) the defendant’s preferred location of the deposition;
(6) whether it would be impossible or fundamentally unfair to make the deponent travel to the location chosen by either party;
(7) whether the plaintiff and/or defendant chose the forum for the civil action or whether the law compelled the venue;
See, e.g, Continental Federal Sav. & Loan Ass’n v. Delta Corp. of Am., 71 F.R.D. 697, 700 (W.D. Okla. 1976). If a counterclaim was compulsory under the Federal Rules, a defendant who files such a claim cannot be said to have "chosen" the venue in any real sense. Id.
(8) whether a defendant has also filed a counter claim against the plaintiff in the relevant forum and, if so, whether the counterclaim was permissive or compulsory under Rule 13(a);
(9) if one of the parties is a business, its size, principal place of business, and geographic scope— including whether it does business in multiple locations and the location selected for the deposition;
(10) the relative economic strength of the parties and whether payment of travel expenses would pose an undue burden for a particular party, and whether granting a party additional time to raise funds would permit the party to fund travel for a deposition;
(11) the costs associated with holding the deposition in a particular place;
(12) the inconvenience posed by a particular site (for example, if a large number of documents would need to be transported to the location);
(13) the nature of the claims at issue in the action and their weight relative to the cost of conducting a deposition at a particular location; (14) whether a particular location would prove more efficient or would result in more expeditious resolution of the case;
(15) whether multiple deponents can be deposed at a particular site on a single day such that holding a deposition for a single witness elsewhere would be highly inefficient;
(16) whether the deponent is an officer or employee of a company that is a party to the suit and his relative rank in the company;
(17) whether conducting a deposition at a particular location would disrupt important business or governmental functions because the deponent is a corporate or government official with significant official duties;
(18) the breadth and weight of the information the deponent likely possesses;
(19) whether a party or the deponent’s employer has offered to cover the costs associated with travel to the proposed deposition site;
(20) whether the deponent frequently or periodically travels to or near the proposed deposition site;
(21) whether the court has the ability to compel the deponent to appear in the forum or the proposed deposition site;
(22) the inconvenience to either party;
(23) the relationship of the parties to the deponent;
(24) whether the welfare of a deponent would be compromised by the rigors of travel (due to poor health or advanced age);
(25) the difficulty of traveling to a particular location due to a lack of transportation infrastructure and means of transportation available to the parties and deponents;
(26) whether natural disasters, weather, economic or political strife makes a particular location dangerous or unsuitable for conducting a deposition;
(27) whether it appears that a deposition site was chosen to harass or inconvenience the deponent or an opposing party, and the good faith or bad faith of the party selecting a site;
(28) whether either party made an effort to select a compromise site;
(29) whether significant discovery disputes are likely to arise that will require court supervision or intervention— thus suggesting that for the sake of judicial economy the deposition should take place near the forum;
Mill-Run Tours, Inc., 124 F.R.D. at 551 ("Although a judge or magistrate could conceivably resolve discovery disputes at an overseas deposition by telephone, such a procedure is costly and unwieldy.").
(30) whether sufficient alternatives to an "in person" deposition exist, such as a telephonic deposition, submission of written questions; or a video conference;
At least one court has noted some of the shortcomings of the submission of written questions:
(31) whether the services of a linguist, interpreter, or stenographer are required and the feasibility of obtaining one at a particular site; and
(32) whether the witness, parties, or attorneys can secure the requisite travel documents and permission from relevant governments. Newman, 962 F.2d at 591; Afram Export Corp., 772 F.2d at 1365; Thompson, 523 F.2d at 648; Winston & Strawn LLP v. Law Firm of John Arthur Eaves, 307 F.R.D. 259, 262 (D.D.C. 2014); In re Outsidewall Tire Litig., 267 F.R.D. at 471-73; Mill-Run Tours, Inc., 124 F.R.D. at 550-52; Turner, 119 F.R.D. at 383; Gen. Leasing Co. v. Lawrence Photo-Graphic Supply, 84 F.R.D. 130, 131 (W.D. Mo. 1979); Leist v. Union Oil Co. of Calif., 82 F.R.D. 203, 204 (E.D. Wis. 1979); Financial Gen. Bankshares, Inc., 80 F.R.D. at 23; Baker v. Standard Indus., Inc., 55 F.R.D. 178, 179-80 (D. P.R. 1972).
Of course, this is not an exhaustive list and many of these factors may prove to be irrelevant in a "typical" case. In other cases, factors not listed here will be highly relevant. This list simply illustrates that the court’s decision regarding the location of a deposition is a fact-intensive one and "each application must be considered on its own facts and equities." Terry v. Modern Woodmen of Am., 57 F.R.D. 141, 143 (W.D. Mo. 1972); see Turner, 119 F.R.D. at 383 (noting that a number of factors "may persuade the Court to require the deposition to be conducted in the forum district or some other place"); Connell v. Biltmore Sec. Life Ins. Co., 41 F.R.D. 136, 137 (D. S.C. 1966) (noting that the "factual situations and considerations vary by the number of cases").
The parties’ submissions did not fully address— indeed, barely discussed— the relevant presumptions, the balancing of the equities, and the relevant factors this court must consider. Furthermore, simply reciting the factors does not suffice. There are competing equities in this case such that this court’s broad discretion properly could result in this court ordering that the deposition be held in such locations as Pensacola, Atlanta, New York, London, or Paris, to name but a few. As mentioned above, therefore, the parties would be well advised to work toward a mutually-beneficial agreement on this issue.
The parties should also discuss— in their conference and in any subsequent submission on this issue— the feasibility of alternatives to an "in person" deposition. See Fed.R.Civ.P. 30(b)(4). Courts have noted that, in some cases, a "telephone interview or, better, a video-recorded conference call, would be an acceptable substitute ...." See Newman v. Metro. Pier & Exposition Auth., 962 F.2d 589, 591-92 (7th Cir. 1992); Abdel-Ghaffar v. Illinois Tool Works, Inc., 706 Fed.Appx. 871, 876 (7th Cir. 2017) ("Federal Rule of Civil Procedure 30(b)(4) allows depositions by ‘remote means’ either on the stipulation of the parties, or on motion."). Another alternative is to conduct the deposition by submitting written questions to a witness. See Nat’l Life Ins. Co. v. Hartford Acc. & Indem. Co., 615 F.2d 595, 599 (3d Cir. 1980) (citing Fed.R.Civ.P. 31). Although an "in person" deposition is generally superior to these alternatives, in certain cases these alternatives may be necessary. Indeed, several rounds of written questions might prove superior to one "in person" deposition. If the parties are interested in several rounds of written questions, they should make that clear.
The parties may also wish to discuss one party paying the other party’s travel expenses to the desired deposition location, as this court will certainly consider that option. See, e.g., Huynh v. Werke, 90 F.R.D. 447, 449-50 (S.D. Ohio 1981) (ordering that the plaintiff travel to West Germany to depose corporate employees of the defendant, but also requiring the defendant to advance plaintiff one-half the total reasonable travel expenses required for the depositions, and deeming this amount to be taxed as costs of litigation in favor of the prevailing party); Haymes v. Smith, 73 F.R.D. 572, 575 (W.D.N.Y. 1976) (ordering the defendant to choose between: (1) traveling to the forum district to be deposed; or (2) paying for the plaintiff’s attorney to travel to the defendant to depose him in Florida).
If this court is called upon to decide the location of the Defendant’s deposition and any mediation conference, the parties should keep in mind that a "plaintiff’s failure to comply with discovery orders is properly sanctioned by dismissal of the suit, a defendant’s by entry of a default judgment." Newman, 962 F.2d at 591.
In subsequent submissions to this court, the parties also should keep in mind Local Rule 7.1(B), which requires a meaningful conference with the adverse party in which the parties "attempt in good faith to resolve the issue ...." See N.D. Fla. Loc. R. 7.1(B). The Plaintiffs’ "Certificate of Compliance with Local Rule 7.1(B)" states only that counsel for Plaintiffs "personally attempted communicate with opposing party regarding the relief sought herein." (Doc. 31 at 8). This suggests that the parties did not conduct a meaningful conference, and perhaps no conference at all. If one party refuses to participate in a conference, the other party should inform this court.
It also appears that when the parties have conferred, they have done so only via email, and not by telephone or video-conferencing. (see, e.g., Doc. 31 at 2-3; Doc. 33 at 4-5; Doc. 36 at 3). A dialogue that allows for a nearly simultaneous "give and take" is much more likely to resolve an issue than a barrage of emails. A court may deny a motion when the movant has not shown that he made a good faith effort to confer and work with an opposing party. See Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir. 2006).
The Local Rule states in relevant part: "The conference may be conducted in person, by telephone, in writing, or electronically, but an oral conference is encouraged. " N.D. Fla. Loc. R. 7.1(B) (emphasis added). An email sent minutes before filing a motion is not a "meaningful conference." Parties are far more likely to resolve a dispute if they speak to each other directly.
Further, neither the Plaintiffs nor the Defendant suggested possible resolutions to the disputes. In the future, the parties should make a concerted effort to ensure that they confer and seek to resolve issues without necessitating court involvement, and they should propose possible solutions. Furthermore, factual assertions in support of their respective positions should be made in affidavits supported by evidence whenever possible. See Mill-Run Tours, Inc., 124 F.R.D. at 551 (noting that the defendants failed to submit affidavits in support of their claim that they would suffer harm); Dalmady v. Price Waterhouse & Co., 62 F.R.D. 157, 159 (D. P.R. 1973) ("It is not sufficient that plaintiff’s attorneys make naked assertions with respect to the financial and hardship conditions faced by him. Well prepared and complete affidavits are necessary to corroborate and give substance to his attorneys’ assertions.").
B. Motion to Compel Mediation
Plaintiffs also seek to compel the Defendant to participate in mediation.
The value of mediation has been widely recognized. Indeed, the "general policy of the law is to favor the settlement of litigation ...." Schering-Plough Corp. v. FTC, 402 F.3d 1056, 1072 (11th Cir. 2005); Kothe v. Smith, 771 F.2d 667, 669 (2d Cir. 1985) (noting that "the law favors the voluntary settlement of civil suits"); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir. 1980) ("The law generally favors and encourages settlements."). Accordingly, the federal courts "have practiced numerous and varied types of pretrial settlement techniques for many years." G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 651 (7th Cir. 1989) (en banc). One of these is mediation. "Mediation with the assistance of a skilled facilitator gives parties an opportunity to explore a much wider range of options, including those that go beyond conventional zero-sum resolutions." In Re Atlantic Pipe Corp., 304 F.3d 135, 145 (1st Cir. 2002).
Pursuant to the policy favoring settlement, federal courts possess the inherent power to compel the parties to participate in the non-binding mediation of their dispute. See Pieczenik v. Bayer Corp., 474 Fed.Appx. 766, 773 (Fed. Cir. 2012); In Re Atlantic Pipe Corp., 304 F.3d at 145. Furthermore, a "district court’s local rules may provide an appropriate source of authority for ordering parties to participate in mediation." In Re Atlantic Pipe Corp., 304 F.3d 135, 140 (1st Cir. 2002). For example, Rule 16.3 of the Local Rules for the U.S. District Court for the Northern District of Florida state: "The Court may order the parties to mediate a civil case." N.D. Fla. Loc. R. 16.3.
On October 23, 2018, this court ordered mediation, in part because the Defendant stated in the "Report of the Parties’ Planning Meeting" that he "strongly" disagreed with Plaintiff’s assessment that "mediation would be futile." (Doc. 29 at 7, ¶ 4(f) ). If Defendant now has changed his mind, his recourse is to file a motion accordingly. In any event, the parties have not informed this court of the progress, if any, they have made regarding the scheduling of a mediation conference. Without such information and a synopsis of the parties’ discussions on this point, an order to compel mediation would be premature.
III. Conclusion
For the reasons set forth above, it is ORDERED that:
1. Plaintiffs’ motion to compel the Defendant’s deposition and mediation of this case (Doc. 31) is DENIED without prejudice due to its prematurity.
2. The parties must confer and make a good faith effort to reach an agreement regarding the location of the Defendant’s deposition and the mediation of this case.
SO ORDERED.
But there are several reasons why oral depositions should not be routinely replaced by written questions.... First, the interrogatory format does not permit the probing follow-up questions necessary in all but the simplest litigation. Second, without oral deposition, counsel are unable to observe the demeanor of the witness and evaluate his credibility in anticipation of trial.... Finally, written questions provide an opportunity for counsel to assist the witness in providing answers so carefully tailored that they are likely to generate additional discovery disputes."
Mill-Run Tours, Inc., 124 F.R.D. at 549. Additionally, showing the deponent physical exhibits might be impossible, not to mention the difficulty of directing him to specific text in documents.