Free Motion for Protective Order - District Court of Connecticut - Connecticut

Case 3:03-cv-00383-WIG Document 262-2 Filed 11/29/2005 Page 1 gfgrc 2 Of5
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Not Reported in F.Supp. P3g€ l
Not Reported in F.Supp., 1990 WL 155727 (S.D.N.Y.)
(Cite as: Not Reported in F.Supp.)
I··I BACKGROUND
Briefs and Other Related Documents
Only the Westlaw citation is currently available. The parties are involved in an action over the
United States District Court, S.D. New York. default of certain loans extended from an account at
FEDERAL DEPOSIT INSURANCE COMPANY, the Central National Bank in New York, New York.
Plaintiff, Defendants were signatories and guarantors of this
v. account, known as the La Antillana account. In
La ANTILLANA,S.A., Ricardo Mario Roveda, May 1990, defendants were noticed to appear on
Juan Tomas Frias, Enrique Waterhouse, and July 19, 1990, at the offices of plaintiff the Federal
Alberto Gabrielli, Defendants. Deposit Insurance Company, in New York for oral
No. 88 Civ. 2670 (JFK). depositions pertaining to this lawsuit. In July,
1990, defendants moved for a protective order,
Oct. 5, 1990. pursuant to Rule 26(c); plaintiff however refused to
respond to the motions. Plaintiff claimed that
defendants had not made full responses to plaintiffs
Ira L. Hyams, P.C., Jericho, N.Y. (Ira L. Hyams, document requests, and until they completed
Jericho, N.Y., of counsel), for plaintiff discovery, plaintiff asked the Court not to require
Fox & Horan, New York City, for Alberto him to respond to defendants‘ motions. On
Gabrielli; Carl L. Distefano, New York City, of September 11, 1990, the Court found defendants‘
counsel. compliance with discovery to be proper, and
Haight, Gardner, Poor & Havens, New York City, ordered plaintiff to respond to defendants‘ motions
for Ricardo Mario Roveda; Marisa A. Marinelli, for protective orders by September 21, 1990;
New York City, of counsel. plaintiff complied.
Winston & Strawn, New York City, for Juan Tomas
Frias and Enrique Waterhouse; Dan S. Durham,
New York City, of counsel. DISCUSSION
OPINION AND ORDER Ordinarily, the proper place for taking an
individual's deposition is his or her place of
KEENAN, District Judge. residence. See Deep South Oil Co. of Texas v.
*1 Before the Court are the motions of defendants Metropolitan Lye Insurance Co., 21 F.R.D. 340,
Alberto Gabrielli, Ricardo Mario Roveda, Juan 342 (S.D.N.Y.l958). See also Buryan v. Max
Tomas Frias and Enrique Waterhouse, for a Factor & Co., 41 F.R.D. 565 (S.D.N.Y.l967) (court
protective order under Fed.R.Civ.P. 26(c), directing followed general rule that proper place for taking
that defendants‘ depositions be conducted at deposition of a corporate defendant is corporation's
defendants‘ residences in Argentina, and that place of business or at officer's residence); Kurt M
plaintiff advance to defendants‘ New York counsel Jachmann Co. v. Hartley, Cooper & Co., Ltd, 16
travel expenses and reasonable attomeys' fees F.R.D. 565 (S.D.N.Y.l954) (court vacated
incurred in attending the depositions in Argentina. plaintil`r"s notices ro depose defendarrts, British
Defendants Frias and Waterhouse move jointly for subjects residing in England, in New York). If a
the protective order. Defendants Roveda and plaintiff notices an individual defendant's deposition
Gabrielli each move separately, although each joins with a location other than defendant's residence or
in the motion of Frias and Waterhouse. place of business and defendant makes an objection,
the plaintiff has the affirmative burden of
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Case 3:03-cv-00383-WIG Document 262-2 Filed 11/29/2005 Page 2 BFE? 3 Of5
Not Reported in F.Supp. P8g€ 2
Not Reported in F.Supp., 1990 WL 155727 (S.D.N.Y.)
(Cite as: Not Reported in F.Supp.)
demonstrating "peculiar" circumstances which Mill-Run, 124 F.R.D. at 550. The more choice a
compel the Court to suspend the general rule and to defendant had in coming before the Court, the more
order that depositions be held in the other location. likely it is that the presumption will be suspended.
See Salter v. Upjohn Co., 593 F.2d 649 (5th If the presumption is suspended, other factors such
Cir.1979). See also Zuckert v. Berklw Corp., 96 as cost, convenience and eliicicncy, are weighed to
F.R.D. 161, 162 (N.D.l|l.1982) (defendant's determine whether the Court should exercise its
objections to alternate deposition location should be discretionary power over the deposition site.
sustained unless unusual circumstances exist which While not putting forth any justification as to why
justify defendant's inconvenience). The rationale the Court should suspend the presumption and
behind this presumptive deference to the defendant consider the Mill-Run factors, plaintiff asserts that
is that plaintiff has had the liberty of bringing the Mill-Run supports its position.
suit and has exercised choice as to the action's
forum; because defendants are not before the Court The Court found in Mill-Run that the plaintiff,
by choice, it is the plaintiff who should bear any seeking to recover for unpaid airline tickets from a
reasonable burdens of inconvenience that the action number of members of the Khashoggi family,
presents. Mill-Run Tours, Inc. v. Khashoggi, 124 brought its suit in the only practical forum possible
F.R.D. 547 (S.D.N.Y.l989) (citing Farquhar v. since the defendants were reputed to live in many
Shelden, 116 F.R.D. 70, 72 (E.D.Mich.l987)). Middle Eastern and European countries. The
plaintiff had "little choice" but to proceed with its
*2 Plaintiff has failed to rise to the challenge of action in New York, noticing defendants in New
presenting "peculiar" circumstances to the Court in York. Acknowledging plaintiffs lack of freedom
support of its noticing defendants in New York. in choosing a forum and defendants' ability to be in
Plaintiff claims: many places, including New York, the Court
suspended the general rule presumption and
[t]he defendants chose to do business through a consulted the other factors in ruling on defendants'
New York bank account and there is no reason why protective order. 124 F.R.D. at 550. Plaintiff in
they should not attend in New York for their the instant case is not in a similar predicament.
depositions .... FDIC does not wish to conduct the Defendants in the instant case all reside in the same
depositions in New York. country and city; defendants have noted
additionally that a number of non-party witnesses
Hyams Aff. at 2-3. also live in Buenos Aires, Argentina. Plaintiff had
pragmatic choices before it when choosing a forum
The Court finds that although plaintiff noticed and a deposition site and presents no like reasons to
defendants, all of whom live and work in Buenos Mill-Run for the suspension of the general rule
Aires, Argentina, to appear in New York, plaintiff presumption.
has provided the Court with no peculiar and
certainly no compelling reason why the depositions Even assuming arguendo that the presumption
should not take place at defendants' residence, should be suspended, plaintiffs choice of deposition
except for plaintiffs convenience. site must fail pursuant to the three Mill-Run factors.
In Mill-Run Tours, Inc. v. Khashoggi, supra, cited I. Cost
by both parties, the Court found that while "caselaw
has established a general presumption that an *3 In Mill-Run, the cost of holding the depositions,
individual defendant's deposition will be held in the while substantial, was agreed to be awarded to the
district of his or her residence," depending on the prevailing party at the conclusion of the litigation.
level of choice defendant had in coming before the Mill-Run, 124 F.R.D. at 550. There is no such
Court, other factors influencing the designation of agreement in the instant case and thus consideration
the deposition site might compel the Court to of which pany is best able to absorb the related
exercise its discretionary power over the site. costs for the depositions, as noted in Mill-Run, is
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Case 3:03-cv-00383-WIG Document 262-2 Filed 1 1/29/2005 Page 3 gfagc 4 OH
Not Reported in F.Supp. P6g¢ 3
Not Reported in F.Supp., 1990 WL 155727 (S.D.N.Y.)
(Cite as: Not Reported in F.Supp.)
the measuring scale guiding this factor. Defendants Argentina. Gabrielli Reply Declaration ati] 2.
are being sued in their individual capacity, and two
of the four defendants have indicated meaningful C. Disruption of defendants' affairs
financial difficulties in pursuing this matter, while
plaintiff is a corporation of significant size and The majority of defendants have demonstrated in
resources. The Court finds, therefore, that the cost detail in their affidavits that their business affairs
factor weighs in defendants' favor. would be considerably disrupted were they to be
compelled to travel to New York for the taking of
11. Convenience their depositions. Plaintiff has again provided no
evidence to refute these declarations and thus this
The Mill-Run court breaks convenience into three sub-factor is resolved in favor of defendants.
sub-factors: convenience of counsel, defendants'
residence, and extent of disruption to defendants' III.Ejj"iciency
affairs during travel to and from the depositions.
The Mill-Run court noted two considerations to be
A. Convenience of counsel evaluated when resolving the efficiency factor:
retrieval of documents and the need for judicial
Although it is impossible to conclude from his supervision. In the instant case, the parties agree
affirmation, plaintiffs counsel is possibly a solo that accessibility to documents for both plaintiff and
practitioner. Accordingly, were the depositions to defendants is not an important consideration. Since
be held in Argentina, plaintiffs counsel would have the parties in the instant case have conducted their
to make burdensome schedule changes in order to discovery process with no unusual degree of
attend the depositions. Mill-Run, 124 F.R.D. at 551 acrimony, the Court does not anticipate that there
. Defendant's New York counsel are employed by will be a need for the resolution of discovery
large firms which realistically makes their trip to disputes which might prove to be unwieldy should
Argentina less difficult to schedule. However, if the depositions be held in Argentina.
the depositions were held in New York, the only
inconvenience to either party's counsel would be to *4 Thus, even if the Court suspends the general rule
Mr. Alejandro Allende, defendants Frias and presumption of a defendant's residence being the
Waterhouse's Argentine counsel who, due to his best place to conduct depositions, the three Mill-Run
clients‘ inability to communicate effectively in factors do not compel the Court to exercise its
English, would need to accompany defendants to discretionary power over the deposition site. In
New York. addition, the Court also notes that plaintiff has
failed to comply with Local Rule 3(b) by neglecting
B. Residence of defendants to provide the Court with a memorandum of law.
FNl That in and of itself is sufficient cause for the
Unlike the defendants in Mill-Run who were unable Court to grant defendants' motions by default.
to demonstrate to the Court proof of their residence
outside the United States, defendants in the instant The Court orders plaintiff to take defendants'
case have offered affidavits in support of their claim deposition at their residences or places of business,
that each of them resides in Argentina. in Buenos Aires, Argentina. The Court declines to
Additionally, plaintiff has provided no evidence direct plaintiff to advance defendants' New York
challenging these assertions except in the case of counsel their travel expenses since these expenses
defendant Gabrielli's place of employment. are anticipated costs in the representation of
However, according to Gabrielli's Reply defendants in foreign countries. In addition, the
Declaration, the information that plaintiff cites in Court also declines to order plaintiff to shoulder
support of his claim that Gabrielli should be defendants' attomeys' fees since these fees are
deposed in the United States is no longer accurate: necessarily part of defendants' defense expenses.
Gabrielli now lives and works in Buenos Aires,
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Case 3:03-cv-00383-WIG Document 262-2 Filed 11/29/2005 Page 41oi% 5 Of5
Not Reported in F.Supp. Page 4
Not Reported in F.Supp., 1990 WL 155727 (S.D.N.Y.)
(Cite as: Not Reported in F.Supp.)
CONCLUSION
For the reasons stated above, the Court grants
defendants' motions for a protective order under
Fed.R.Civ.P. 26(c) and orders that plaintiff take
defendants' depositions in Buenos Aires, Argentina.
SO ORDERED.
FN1. Rule 3. Motions.
(b) Upon any motion the moving party
shall serve and tile with the motion papers
a memorandum setting forth the points and
authorities relied upon in support of the
motion divided, under appropriate
headings, into as many parts as there are
points to be determined. The opposing
party shall serve and tile with the papers in
opposition to the motion and an answering
memorandum, similarly divided, setting
forth the points and authorities relied on in
opposition. Failure ra comply may be
deemed sujicient cause for the denial 0]
the mation 0r the granting 0f the motion
by default. (emphasis added).
S.D.N.Y.,l990.
Federal Deposit Ins. Co. v. La Antillana, S.A.
Not Reported in F.Supp,, 1990 WL 155727
(S.D.N.Y.)
Briefs and Other Related Documents (Back to top)
· 1:88cv02670 (Docket) (Apr. 15, 1988)
END OF DOCUMENT
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