Opinion
03 Civ. 257 (RWS)
September 19, 2003
MEMORANDUM OPINION
In a letter to the Court dated June 20, 2003, counsel for plaintiff Beverly Zakre requests an order directing that defendant Norddeutsche Landesbank Girozentrale ("Nord/LB"): (1) must produce documents and respond to Zakre's First Set of Interrogatories by June 27, 2003; (2) is precluded from objecting to Zakre's discovery requests; and (3) must make Nord/LB employee Jurgen Rosters available for a deposition in New York. The Court deemed the letter to be a motion returnable on July 9, 2003.
This litigation concerns allegations of sex discrimination against Nord/LB. In particular, Zakre alleges that Nord/LB discriminated against her by not promoting her to the Treasurer position in its New York office. Zakre also alleges that Nord/LB has retaliated against her in the terms and conditions of her employment because she complained about sex discrimination.
For the reasons set forth below, Nord/LB is directed to respond to Zakre's Discovery Requests and First Set of Interrogatories by October 8, 2003. The deposition of Kosters will take place by videoconference at Nord/LB's expense.Zakre's Discovery Requests
Zakre served her First Request for the Production of Documents and First Set of Interrogatories (the "Discovery Requests") on Nord/LB on April 18, 2003. Zakre twice extended the deadline for Nord/LB to respond, the last until June 18, 2003. Nord/LB did not respond on June 18, but instead sent a letter to Zakre's counsel stating that " [w] e . . . hope that we will be able to produce certain documents to you by the end of this week/early next week and provide additional documents and our responses soon thereafter." (June 18, 2003 letter from Dawn J. Groman, Esq. to Karen Cacace, Esq.).
Nord/LB's counsel responds that it has been working diligently to respond to Zakre's requests, but that it has had difficulty responding because of: (1) the large number and broad and ambiguous nature of the Discovery Requests; (2) the large number of individuals with whom defense counsel needs to speak in order to obtain information and documents; and (3) technical and cost issues relating to obtain discovery.
Zakre argues that Nord/LB has refused to comply with its discovery obligations and should therefore be precluded from making any objections to the Discovery Requests. See Fed.R.Civ.P. 33(b)(4) and 34(b) (objections to interrogatories and discovery requests must be made within 30 days).
There is no evidence that Nord/LB has refused to comply with the Discovery Requests. Accordingly, the request to order Nord/LB to waive its objections is denied. However, Nord/LB is ordered to respond to the Discovery Requests by October 8, 2003.Location of the Kosters Deposition
Nord/LB identified Kosters has one of three individuals that it may use to support its claims and/or defenses. Nord/LB has also stated in its position statement to the Equal Employment Opportunity Commission that Kosters made the decision who would be hired for the Treasurer position at issue. Kosters is a member of Nord/LB's Board of Management, and he resides in Germany. Zakre requests that the deposition be held in New York, while defendants would like it held in Germany, or alternately held by telephone, videoconference, or by written questions.
There is a general presumption "favoring deposition at a defendant's or third-party's residence or place of business." In re Liven Securities Litigation, 98 Civ. 5686, 2002 WL 31366416, at * 1 (S.D.N.Y. Oct. 21, 2002). However, "it is equally well-settled that `this presumption loses its force in cases where the plaintiff's choice of forum is effectively constrained.'" Id. (quoting Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 107 (S.D.N.Y. 2001));see also Mill-Run Tours. Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989). Zakre could not file her employment discrimination suit in Germany.
The presumption in favor of locating a deposition at the deponent's residence "`can be overcome by a showing that factors of cost, convenience, and litigation efficiency militate in favor of an alternate location.'" Id. (quoting Six West Retail, 203 F.R.D. at 107). Zakre argues that it would be both expensive and inconvenient for all counsel to travel to Germany for the deposition. Nord/LB argues that for Kosters to travel to New York would create significant hardship on both Kosters and Nord/LB. Further, Kosters is not scheduled to be in the United States for the remainder of the year.
In considering each of the factors, the most significant is the hardship to Kosters. While it is true that all counsel would be inconvenienced by traveling to Germany, "the convenience of counsel is less compelling that any hardship to the witnesses." Six West Retail, 203 F.R.D. at 108 (quoting Devlin v. Transportation Communications Int'l Union, Nos. 95 Civ. 0752, 95 Civ. 10838, 2000 WL 28173, at *4 (S.D.N.Y. Jan. 14, 2000)). Kosters will therefore be permitted to be deposed from Germany. However, recognizing the cost and inconvenience to Zakre's counsel, Rosters' deposition will take place by videoconference at Nord/LB's expense.
It is so ordered.