Opinion
No. C98-3477 CRB (JCS)
September 17, 1999
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL
I. INTRODUCTION
Defendants seek an order compelling Plaintiffs to: 1) produce documents and designate 30(b)(6) witnesses pertaining to policies issued by Plaintiffs before and after the 1995-1996 policy year; 2) answer two contention interrogatories; 3) produce witnesses, pursuant to Rule 30(b)(6), for depositions in San Francisco. The matter came on for hearing on September 10, 1999. The Court ruled from the bench, and stated that a written order would follow. For the reasons stated below, Defendants' motion is granted in part and denied in part.
II. BACKGROUND
This case involves a dispute between primary insurers (Plaintiffs) and excess insurers (Defendants).
The central issue is the allocation of payments for losses resulting from a series of fires covered under property insurance policies issued by Plaintiffs (primary coverage) and Defendants (excess coverage) to the County Supervisor's Association Committee ("CSAC") and its members, including Contra Costa County.
While the scope of the coverage provided by Plaintiffs' and Defendants' policies was identical, the policies issued by the primary insurers contained a policy limit of $5,000,000 per occurrence. Under the policies provided by the excess insurers, coverage was for losses which exceeded $5,000,000 per occurrence.
Plaintiffs and Defendants have jointly settled the claims at issue in this case with the insured. Both parties now seek declaratory judgment as to the proper allocation of the burden of these payments. The question raised by this case is whether the losses at issue arose out of one, or multiple, "occurrences." The policies issued by Plaintiffs and Defendants to CSAC for the period June 30, 1995 to June 30, 1996 (the period during which the fires occurred) contained the following provisions:
SECTION I
DECLARATIONS
Deductible Provisions:
All claims for loss arising out of a single occurrence, shall be adjusted as one claim, and from the amount of each such claim, a single deductible shall apply to the total of the adjusted claims resulting from the single occurrence. . . .
SECTION IV
GENERAL PROVISIONS
Perils insured:
Subject to the terms, conditions and exclusions stated elsewhere herein, this policy insures against all risk of direct physical loss or damage occurring during the period of this policy. . . .
Loss:
means the loss by any peril or combination of perils insured against arising out of a single occurrence. When the term applies to loss or losses from earthquake, flood, and/or windstorm, it shall be held to include those losses occurring or commencing during a period of 72 consecutive hours.
The policies did not define the term "occurrence."
The losses at issue here resulted from four fires at various Contra Costa County courthouses, one of which occurred on August 28, 1995 (in Walnut Creek) and three of which occurred on the night of September 14, 1995 (two in Concord and the third in Martinez). A single person, Richard Dudley Stevens, who was involved in several pending lawsuits in the Contra Costa courts, was convicted of setting all the fires. Although the four fires collectively caused more than $14,000,000 in property damage, the only individual fire to exceed $5,000,000 in damages was the Martinez fire. Plaintiffs seek a declaratory judgment that all four fires constitute a single "occurrence" under the policy, while Defendants argue that the fires were four separate "occurrences."
On May 14, 1999, Plaintiffs filed a summary judgment motion on the basis of EOTT Energy Corp. v. Storebrand International Ins. Co., 45 Cal.App.4th 565 (1996). Defendants moved on August 5, 1999 to have the summary judgment hearing, initially scheduled for June 18, 1999 and then reset for September 17, 1999, put off until this motion to compel was heard. They argued that they should be allowed to complete their discovery before the court considered summary judgment motions. Judge Breyer granted Defendants' motion and ordered as follows: "If the motion to compel is denied, defendants must file their cross motion for summary judgment within one week of receiving notice of the denial. If the motion to compel is granted, defendants must file their cross motion for summary judgment within two weeks of completion of the discovery ordered by the magistrate judge." Order by Judge Breyer, 8/16/99.
II. THE DISCOVERY AT ISSUE
In their Motion to Compel, Defendants assert that Plaintiffs have failed to meet their discovery obligations with respect to the following interrogatories, requests for production and deposition subpoenas:
1. Defendants' First Request For Production, Request No. 6: Defendants have requested that Plaintiffs produce "all underwriting documents related directly or indirectly to the CSAC policy." Plaintiffs have responded that they will provide "all nonprivileged responsive documents from [their] underwriting file[s] pertaining to the June 30, 1995, to March 31, 1996, CSAC policy at issue in this case." Defendants challenge Plaintiffs' time limitation. As clarified by oral argument, Defendants seek the underwriting files of the primary policies issued by Plaintiff Lexington to CSAC from 1990 forward.
2. Defendants' Second Request For Production: The Second Request seeks documents related to various losses sustained by CSAC between 1995 and 1997 that resulted from more than one incident and for which CSAC submitted claims to Plaintiffs. Although Plaintiffs objected to this request on various grounds in their responses, Plaintiffs agreed to produce all responsive non-privileged documents. Plaintiffs finally produced these documents after Defendants filed this Motion to Compel.
3. 30(b)(6) Deposition Notices: Defendants served 30(b)(6) Notices of Depositions on Plaintiffs Lexington Insurance Company and Houston Casualty on June 17, 1999 requesting that both Plaintiffs designate, and produce for deposition in San Francisco, persons most knowledgeable concerning:
a) "The claims adjustment of the four fires that were set to four Contra Costa courthouses on or about August 28, 1995;"
b) "The adjustment of all other property claims submitted by CSAC and its members under the 1995-1996 property policy issued by [Plaintiffs] to CSAC and its members";
c) "The underwriting of the 1995-1996 primary policy issued to CSAC and its members"; In addition, the 30(b)(6) notice served on Lexington Insurance Company requested that Lexington designate persons most knowledgeable concerning:
d) "The underwriting of the 1996-1997 excess policy issued by Lexington Insurance Company to CSAC and its members";
e) "The adjustment of property claims submitted by CSAC and its members under any first party property policy issued by Lexington Insurance Company since the 1993-1994 policy year."
Plaintiffs objected, and identified 30(b)(6) witnesses for both Lexington and Houston Casualty only on issues a) (the Contra Costa fires claims adjustment) and c) (the1995-96 CSAC property policy underwriting). In the same letter, Plaintiffs stated that these witnesses would only be made available for deposition at their corporate headquarters — London (Lexington Insurance Company) and Houston (Houston Casualty).
4. Contention Interrogatories: In their Motion, Defendants seek to compel Plaintiffs to respond to the following interrogatories:
Interrogatory No. 3: State all facts upon which you base your claim that the four fires identified in paragraphs 14 and 15 in the Complaint constitutes [sic] only one occurrence.
Interrogatory No. 5: Using your definition of "common scheme" and "common plan" as set forth in your answer to Interrogatory No. 4 above, identify each and every fact which you contend establishes a "common scheme" or "common plan" to set the four arson fires referenced in paragraphs 14 and 15 in the Complaint.
Plaintiffs have refused to answer these interrogatories on the basis that Defendants have the same access as they do to the voluminous trial records and other evidence leading to the conviction of the arsonist.
Plaintiffs point out that both Plaintiffs and Defendants used the same claims adjuster, Maxson Young Associates, and received the same information on this issue. Opposition at 4. Defendants seek an order compelling Plaintiffs to answer these interrogatories.
III. ANALYSIS A. Documents and 30(b)(6) Witnesses for Years Other Than 1995-1996
Defendants argue they are entitled to documents and 30(b)(6) witnesses regarding policies between CSAC and plaintiff Lexington for years other than 1995-96. They assert that these may be relevant to the intent of the parties to the contract in interpreting the meaning of the word "occurrence." Motion at 6.
Plaintiffs contend that such documents and 30(b)(6) witnesses are irrelevant. They assert that ambiguous policy provisions are interpreted so as to protect the "objectively reasonable expectations"of the insured.
Plaintiffs argue that, as to the definition of "occurrence," this issue has already been resolved in favor of Plaintiffs, citing EOTT Energy Corp. v. Store Brand International Insurance Company, 45 Cal.App.4th 565, 575-576 (1996). Opposition at 7. Indeed, Plaintiffs assert, the insured here (CSAC) has already made its intent clear by taking the position that the Contra Costa fires should be considered a single occurrence.
The Federal Rules of Civil Procedure provide for a broad scope of discovery: any matter which is relevant to the subject matter of the action may be discovered. Fed.R.Civ.P. 26(b)(1). Indeed, the information is "relevant to the subject matter," even though it is not admissible at trial, if it appears reasonably calculated to lead to admissible evidence. Id. Here, the question is whether or not discovery of the past history of the relationship between the parties, in particular, their past interpretations of the word "occurrence," may reasonably lead to evidence admissible in this case.
Plaintiffs do not contend that such evidence will not be found in the underwriting files at issue. Rather, they contend that, even if the underwriting files contain this type of evidence, it is not relevant under EOTT.
The interpretation of insurance contracts in California is governed by a series of well-established rules. First and foremost, the mutual intent of the parties at the time of contract formation governs the meaning of the contract. See EOTT Energy Corp., supra, 45 Cal.App.4th at 574 (holding that "the mutual intention of the parties at the time the contract is formed governs interpretation"); see also, AIU Insurance Co. v. Superior Court, 51 Cal.3d 807, 822 (1990) (holding that "[i]f there is ambiguity . . . it is resolved by interpreting the ambiguous provisions in the sense the promisor (i.e., the insurer) believed the promisee understood them at the time of formation"). Indeed, Plaintiffs conceded in oral argument that the intent of the parties at the time of contracting is relevant to the contract's interpretation. The intent of the parties should be ascertained from the contract itself, where possible. See Cal. Civ. Code § 1639.
However, extrinsic evidence may be admissible to establish the intent of the parties where a term is ambiguous, see Pacific Gas Electric Co. v. G.W. Thomas Drayage Rigging Co., 69 Cal.2d 33, 39-40 (1968), and to prove that a term is, in fact, ambiguous. See Morey v. Vannucci, 64 Cal.App.4th 904, 912 (1998) (holding that "[w]here the meaning of the words used in a contract is disputed, the trial court must provisionally receive any proffered extrinsic evidence which is relevant to show whether the contract is reasonably susceptible of a particular meaning") (citing Pacific Gas Electric Co. v. G.W. Thomas Drayage Rigging Co., 69 Cal.2d 33, 39-40 (1968)). The court in Pacific Gas Electric Co. v. G.W. Thomas Drayage Rigging Co. explained:
Such evidence includes testimony as to the circumstances surrounding the making of the agreement including the object, nature and subject matter of the writing so that the court can place itself in the same situation in which the parties found themselves at the time of contracting. If the court decides after considering this evidence, that the language of a contract, in the light of all the circumstances, is fairly susceptible of either one of the interpretations contended for, extrinsic evidence relevant to prove either of such meanings is admissible.
Pacific Gas Electric Co. v. G.W. Thomas Drayage Rigging Co., 69 Cal.2d 33, 40 (1968). In addition, courts have admitted extrinsic evidence of trade usage or custom to establish the intended meaning of a term in a contract. Id. at 39 n. 6; see also City Savings Loan Ass'n v. General Ins. Co. of America, 386 F. Supp. 1210, 1217-1218 (N.D.Cal. 1974) (discussing admissibility of extrinsic evidence relating to custom and usage under California law).
In insurance contracts, there are a number of additional presumptions which are often applied by the courts in deciding issues of interpretation. Ambiguous terms in insurance contracts, for example, are ordinarily interpreted to protect the objectively reasonable expectations of the insured. AIU Insurance Co., supra, 51 Cal.3d at 822. Ambiguity is often construed against the insurer that drafted the policy. Id.
However, these presumptions do not always apply: where the policy at issue is a manuscript policy negotiated by both parties, rather than a standard contract drafted by the insurer alone, the usual presumptions of contract construction in favor of the insured may not come into play in the interpretation. See Hayter Trucking, Inc. v. Shell Western E P, Inc., 18 Cal.App.4th 1, 19 (1993) (noting that the presumption usually applied in favor of the insured in the construction of insurance contracts is based on the fact that the insurer typically drafts the policy and the insured has little or no opportunity to bargain for modifications).
Plaintiffs conceded at oral argument that the 1995-1996 policy issued by Plaintiffs to CSAC was a manuscript policy that was the product of negotiations between the insurers and CSAC.
Evidence relating to the intent of the parties to the insurance contract at issue in this case regarding the meaning of the word "occurrence" may therefore be relevant at each step in the analysis described above. First, the evidence of the parties' prior use of the word "occurrence," and their understanding as to its meaning, may provide evidence of whether or not that term is ambiguous — and whether or not the proffered competing definitions are appropriate. Second, this evidence may be relevant to the question of what the actual intent of the parties was with respect to this term, including the expectations of the insured.
Finally, in the event that the Defendants are able to prove, as they have suggested, that this was a manuscript policy between entities of relatively equal bargaining power, the ordinary presumptions will not apply: in that instance, if the court decides that the term is ambiguous, the course of dealing with the parties may be relevant to a determination of the meaning of the insurance policy.
Plaintiffs' citation to EOTT Energy Corp. does not change this conclusion. In EOTT, plaintiff was a distributor of petroleum products which had suffered losses resulting from hundreds of separate thefts of fuel by tanker truck drivers who disabled the fuel meter while filling their trucks from plaintiff's pump.
When the distributor discovered the thefts, it submitted a claim with its insurer for a loss of approximately $1.5 million. The insurer refused to cover the loss, asserting that each theft was a separate occurrence and that no single theft exceeded the $100,000 per occurrence deductible. The trial court granted summary judgment in favor of the insurer, finding that the meaning of "occurrence" was plain and unambiguous and that each loss was a separate occurrence.
On appeal, the court reversed summary judgment, rejecting the trial court's holding that the meaning of the term "occurrence," as used in the policy, was explicit and unambiguous. The court noted first that the term "occurrence" was not defined in the property loss section of the policy. Id. at 574. The Court then reasoned that the term "occurrence" could reasonably be read to embrace more than one claim when taken in the context of the entire policy because the deductible clause contained in the policy provided that "all claims for loss, damage, or expense arising out of any one occurrence . . . shall be adjusted as one claim." Id. On this basis, the court concluded that the term was ambiguous. It then went on to hold that plaintiff's objectively reasonable expectations would "embrace the conclusion" that multiple claims due to the same or related causes would constitute a single loss. Id.
First, the fact that Plaintiffs have based their summary judgment on EOTT Energy Corp. supports Defendants' entitlement to discovery: Defendants are entitled to discovery in an effort to demonstrate whether or not the use of the term "occurrence" in this case, was the same as, or different from, its meaning in the policy at issue in EOTT Energy Corp. To the extent that the policy in EOTT is similar to the policy at issue here, EOTT may be helpful to Plaintiffs on the merits. However, the evidence sought may lead to the conclusion that the policy here — and the intent of the parties with respect to the word "occurrence" — differed from the situation in EOTT. Indeed, there is some language on the face of the policy here, not present in EOTT, that is relevant to that issue: the second sentence of the definition of "loss" in the General Provisions section provides that "[w]hen the term applies to loss or losses from earthquake, flood, and/or windstorm, it shall be held to include those losses occurring or commencing during a period of 72 consecutive hours." In addition, in oral argument Defendants argued that the policy in this case differs from the one in EOTT in other respects, including its inclusion of a term providing for an aggregate deductible and the fact that it carries different deductibles for different counties insured under the policy.
Not only may the evidence sought here prove relevant to the question of whether or not the policy was different from that considered in EOTT, but the court in EOTT did not purport to make a determination as to what evidence ought to be considered in determining the "objectively reasonable expectation" of the insured. The authorities governing the interpretation of the contracts of insurance, cited above, also do not purport to limit the kind of evidence that should be considered — or at least produced in discovery — with respect to policy interpretation. As described above, the evidence of the parties' prior course of dealings with respect to similar insurance policies, in particular with respect to the word "occurrence," may provide evidence that is relevant to each step in the well-established analysis of insurance policies.
Below, the specific requests for production and for designation of 30(b)(6) witnesses at issue here are addressed.
1. First Request For Production (Request No. 6)
In Request Number 6, Defendants request "all underwriting documents related directly or indirectly to the CSAC policy." The Request is identical for both Houston and Lexington. Defendants do not define "the CSAC policy." Because the only policy issued by Houston to CSAC was the 1995-1996 policy at issue in this case, Defendants' Motion does not concern Houston with respect to the First Request.
Further, at oral argument Defendant limited this request to underwriting documents related to the primary policies issued by Lexington to CSAC beginning in 1990.
As described above, the documents requested for the policy years prior to the 1995-1996 policy may provide information relevant to the intent of the parties in the year at issue. The underwriting files, for example, may provide information on how the insured and the insurer understood the term "occurrence" and how it would operate in a multiple claim setting.
The Court makes no determination whether such evidence — or any evidence at issue in this motion — is ultimately admissible. That decision is reserved for the trial judge.
Because the Court finds that the requested documents for policies issued prior to the 1995-1996 policy may be relevant to the intent of the parties, IT IS HEREBY ORDERED that Plaintiff Lexington Insurance Company produce all nonprivileged documents from its underwriting files for the years 1990 to 1995 for the primary policies under the CSAC program. Because the Court finds that documents related to the underwriting of policies issued after the 1995-1996 policy was issued are unlikely to produce any information relevant to the intent of the parties at the time of contracting for the 1995-1996 policy, Defendants' Motion to Compel is DENIED as to those documents.
2. Second Request For Production
The second request seeks claims files for various losses sustained by CSAC between 1995 and 1997. These documents have already been produced. The Court does not rule on this issue, which is moot.
3. Designation of 30(b)(6) Witnesses
Defendants have requested that 30(b)(6) witnesses be designated by Houston Casualty for: 1) claims adjustment for the Contra Costa fires; 2) the adjustment of all other property claims submitted by CSAC to Houston Casualty under the 1995-1996 policy; and 3) the underwriting of the 1995-1996 policy issued by Houston to CSAC. Plaintiffs agreed at oral argument to designate witnesses as to all three issues, but have so far designated witnesses only as to the first and third issues. Because, as Plaintiffs have conceded, the adjustment of claims submitted under the 1995-1996 policy may be relevant to the dispute in this case, IT IS HEREBY ORDERED that Plaintiff Houston Casualty designate a 30(b)(6) witness on the issue of the adjustment of all other property claims submitted by CSAC to Houston Casualty under the 1995-1996 policy.
Defendants have requested that 30(b)(6) witnesses be designated by Lexington for: 1) claims adjustment for the Contra Costa fires; 2) the adjustment of all other property claims submitted by CSAC to Lexington under the 1995-1996 policy; 3) the underwriting of the 1995-1996 policy issued by Lexington to CSAC; 4) the underwriting of the 1996-1997 excess policy issued by Lexington to CSAC; and 5) the adjustment of property claims submitted by CSAC under "any first party property policy issued by Lexington Insurance company since the 1993-1994 policy year." In oral argument, Defendants limited the fifth issue to the claims listed in the Second Request for Production that occurred after the 1995-1996 policy year. Claims under the 1995-1996 policy year are covered by issue number two. Plaintiffs have so far designated witnesses only as to the first and third issues, namely, the adjustment of the Contra Costa fires and the underwriting of the 1995-1996 policy. At oral argument, Plaintiffs agreed to designate a witness on the second issue: other claims under the 1995-1996 policy.
As agreed by Plaintiffs, IT IS HEREBY ORDERED that Lexington designate a 30(b)(6) witness on the second issue (adjustment of all other property claims submitted by CSAC to Lexington under the 1995-1996 policy). Because the Court finds that production of a witness concerning the underwriting of policies issued after the 1995-1996 policy is unlikely to lead to any information relevant to this case, Defendants' motion is DENIED as to the fourth issue (the underwriting of the 1996-1997 excess policy issued by Lexington to CSAC). Further, to the extent that Defendants' request for the designation of a 30(b)(6) witness on the fifth issue is limited to claims that were filed under policies issued after the 1995-1996 policy, Defendants' motion is DENIED.
B. Contention Interrogatories
In their Motion, Defendants seek to compel Plaintiffs to respond to two contention interrogatories.
Defendants conceded in oral argument that they do not need answers to these interrogatories for the purposes of summary judgment, but maintain that responses will be important to Defendants in preparing for trial. Plaintiffs object to answering these interrogatories at all on the basis that Defendants have access to the same information as Plaintiffs. Plaintiffs rely on Federal Rule of Civil Procedure 26(b)(2), allowing the court to limit discovery where "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." Plaintiffs also rely on M R Amusement Corp. v. Blair, 142 F.R.D. 304, 305-306 (N.D.Ill. 1992). Plaintiffs' argument has no merit.
The purpose of contention interrogatories such as the ones in this case is not to obtain facts, but rather to narrow the issues that will be addressed at trial and to enable the propounding party to determine the proof required to rebut the respondent's position. Baltimore Therapeutic Equipment Co. v. Loredan Biomedical, Inc., 1993 WL 129781 (E.D.Cal.). Courts are reluctant to allow contention interrogatories prematurely, that is, when the respondent has not yet obtained enough information through discovery to answer such interrogatories. See, e.g. Rusty Jones, Inc. v. Beatrice Co., 1990 WL 139145 (N.D.Ill.).
However, courts have also recognized that properly timed contention interrogatories "may in certain cases be the most reliable and cost-effective discovery device, which would be less burdensome than depositions at which contention questions are propounded." Cable Computer Technology, Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 652 (C.D.Cal. 1997) (citing McCormick-Morgan, Inc. v Teledyne Industries, Inc., 134 F.R.D. 275, 287 (N.D.Cal. 1991). Thus, the court in Cable Computer Technology, Inc. v. Lockheed Saunders, Inc. stated that "this Court prefers to consider contention interrogatories in the same manner it would consider any interrogatory, placing the burden on the party opposing discovery rather than shifting the burden to the proponent of the contention interrogatories to justify their propoundment." Id.
Here, Plaintiffs do not argue that the contention interrogatories are premature. Rather, they argue that they should not be required to answer because Defendants have the same access as do Plaintiffs to the information upon which Plaintiffs' responses would be based. This argument misses the point of contention interrogatories: to learn what the opposing party will argue at trial, rather than to obtain facts. Indeed, contentious interrogatories are often postponed so that a responding party can learn through discovery enough information from the propounding party to allow the responding party to formulate a useful response. See, e.g., Rusty Jones, Inc. v. Beatrice Co., 1990 WL 139145 at *2 (N.D.Ill.) (contention interrogatories propounded by defendant Beatrice Co. were not premature because Beatrice had already produced thousands of pages of documents in response to the earlier requests for production by Rusty Jones, Inc. The court required plaintiff to answer the contention interrogatories even though the answers obviously would be based upon Beatrice's own documents). Implicit in these cases is the assumption that contention interrogatories may be answered on the basis of documents produced by the propounding party.
The case cited by Plaintiffs, M R Amusement Corp. v. Blair,142 F.R.D. 304 (N.D.Ill. 1992), is not on point. That case considered whether an insurer was entitled to depose the insured's attorney. The court noted that "[d]eposing an opponent's attorney is a drastic measure," and should only be permitted in "very rare cases." It then held that the insurer was not entitled to depose the attorney because it had not demonstrated that there were no other means available to obtain the information it needed. Id. at 306.
Such a strict standard clearly does not apply with respect to general discovery, however, and certainly does not apply here, where there is no question of deposing an attorney.
On the basis of the above analysis, this Court finds that Defendants are entitled to answers to Interrogatories No. 3 and 5 if the case proceeds beyond the summary judgment stage to trial. Therefore, IT IS HEREBY ORDERED that Plaintiffs respond to Interrogatories 3 and 5 of Defendants' First Set of Interrogatories not later than 90 days prior to whatever date the district court shall set for the close of non-expert discovery.
C. Place of Depositions
Plaintiffs have designated a number of 30(b)(6) witnesses who are based in offices outside of California, namely, in Houston and London, and have refused to make these witnesses available in San Francisco. Plaintiffs assert that depositions should be held at the principal places of business of the two corporations. Defendants, on the other hand, assert that the law permits the deposing party to designate the location of a deposition and that it is preferable to depose 30(b)(6) witnesses in the forum where the plaintiff has chosen to bring the lawsuit.
A party may unilaterally choose the place for deposing the opposing party, subject to the granting of a protective order by the Court pursuant to Federal Rule of Civil Procedure 26(c)(2) designating a different place. Turner v. Prudential Ins. Co., 119 F.R.D. 381, 383 (M.D. NC 1988). In determining the appropriate place for depositions, the trial court has broad discretion. Id. However, as a general rule, "plaintiff will be required to make himself or herself available for examination in the district in which suit was brought." Wright Miller, Federal Practice Procedure, § 2112 at 75. This rule is also applicable to plaintiff's agents and employees. Detweiler Bros., Inc. v. John Graham and Co., 412 F. Supp. 416, 422 (E.D.Wa. 1976). This rule appears to be based not only upon the fact that Plaintiffs choose the forum but also upon pragmatic considerations. As stated in Minnesota Mining Manufacturing Co. v. Dacar Chemical Products, Co., 707 F. Supp. 793, 795 (W.D.Pa. 1989), "as a rule depositions should be taken in the district where the action is being litigated. This not only permits predictability in prospective litigation, it also pragmatically permits the trial court to resolve disputes which may take place during the course of depositions without undue expenditure of time."
Although Plaintiffs have cited a number of cases in support of their contention that their 30(b)(6) witnesses should be deposed at Plaintiffs' principal places of business, in these cases the corporate representatives sought to be deposed were representatives of a defendant rather than a plaintiff. The underlying rationale offered in these cases is that because the plaintiff rather than the defendant choses the forum, the defendant and its representatives should not be required to travel to the forum for deposition.
See, e.g. Farquhar v. Shelden, 116 F.R.D 70, 72 (allowing defendant to be deposed at his home in the Netherlands based upon the rationale that "it is the plaintiffs who bring the lawsuit and who exercise the first choice as to forum . . . [so] plaintiffs normally cannot complain if they are required to take discovery at great distances"); Zuckert v. Berkliff Corp., 96 F.R.D. 161, 162 (N.D.I. 1992) (holding that magistrate judge improperly ordered corporate defendant-counter-claimant to come to forum for deposition on basis that its assertion of counterclaim meant it should be treated like a plaintiff because counterclaim was compulsory. The court noted that had the counterclaim been permissive, it would have been proper to require defendant counterclaimant to come to forum to be deposed).
In Turner v. Prudential Insurance Co., 119 F.R.D 381 (MD NC 1988), the court made an exception to this rule because the defendant was a large insurance company while the plaintiff was a small employer. Because of the unequal relationship between the parties, the court required that the defendant's witnesses make themselves available for deposition in the forum rather than their principal place of business. Id. at 383. In the absence of evidence of such an unequal relationship, Turner does not, however, support Plaintiffs' argument that their representatives should be deposed at the Plaintiffs' principal places of business.
Here, Plaintiffs argue that they should not be required to come to San Francisco, even though the case is being litigated there, because they did not choose the forum. Rather, they assert, the "arsonist chose the forum," because Contra Costa Superior Court (where this action was originally filed) was the only proper venue. In Minnesota Mining, the court rejected this argument, reasoning that the advantages of holding depositions in the forum were significant enough to require Plaintiffs to make their deponents available for deposition in the forum even if they did not have any choice as to where they brought the action. 707 F. Supp. at 795. Further, while Plaintiffs may not have chosen the forum, Plaintiffs did choose to issue insurance policies to CSAC, a group made up entirely of governmental entities within California, and therefore should have envisioned that venue for any litigation they might initiate concerning the policy would likely be in California.
Therefore, IT IS HEREBY ORDERED that Plaintiffs shall make the 30(b)(6) witnesses previously designated by Plaintiffs, and those designated pursuant to this order, available for deposition in San Francisco on the following condition: Plaintiffs and Defendants shall divide equally the costs of transportation, meals and accommodations for the witnesses in connection with their attendance at the depositions. Each witness shall be allowed, for purpose of cost splitting, one night's accommodation for each day of deposition, plus one additional night after the completion of his/her deposition, if necessary, to accommodate airline flight availability.
IV. CONCLUSION
IT IS HEREBY ORDERED that all documents ordered to be produced herein shall be produced on or before September 24, 1999. All other discovery ordered herein, except the responses to the contention interrogatories, shall be completed on or before November 9, 1999. Pursuant to Judge Breyer's Order, Defendants shall file their cross-motion for summary judgment within two (2) weeks of completion of the discovery ordered herein, other than the contention interrogatories.
IT IS SO ORDERED.