Free Letter - District Court of Delaware - Delaware

L Case 1:04-cv-00389-***-MPT Document 41 Filed 08/22/2005 Page 1 of 3
YOUNG CONAWAY STARGATT & TAYLOR, LLP
SEAN M. BEACH Tun Bimuuvwrns Bottoms (302) 57 t-6600
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wimmeros, nsmwnts issssossi
August 2l, 2005
BY HAND DELIVERY
The Honorable Kent A. Jordan
·` United States District Court
J. Caleb Boggs Federal Building
844 North King Street, Room 6325
Wilmington, DE 1980l
Re: PSA, inc. v. inter-World Communications, Inc., Dean
Hollis Velazco, etal., Civil Action No. 04-389-KAJ
Dear Judge Jordan:
This letter is the reply of plaintiff ET S Payphones, Inc., to the letter from counsel for
defendants Dean Hollis Velazco and Inter-—World Communications, Inc. concerning the location
of a noticed 30(b)(6) deposition of a corporate representative of the plaintiff in which the
plaintiff wishes to have the deposition taken at or near its corporate offices outside Atlanta,
Georgia, while the defendant demands that the deposition take place in Wilmington. The
_ plaintiff responds as follows:
l. Taking the deposition in Wilmington imposes o signdicont hardship on the
plointfbecouse the deposition notice includes o voluminous document request. The deposition
notice requests that the plaintiff bring to the deposition hundreds if not thousands of pages of
documents relating to the funding, legal structure, and operations of the joint venture at the heart
of this lawsuit. It also requests electronic files of documents which, if they exist, would be
maintained on the plaintiffs computers located outside Atlanta, Georgia. It is infeasible, and
makes little sense, to require the plaintiff to pack up thousands of pages of documents and ship
them to Wilmington, merely for the convenience of the defendants’ counsel. Moreover, the
plaintiff is entitled to produce requested documents as they are kept in the ordinary course of the
its business, at its offices outside Atlanta, and is not required to ship them to defense counsel’s
offices for review. See Fed. R. Civ. P. 34(b) (‘°A party who produces documents for inspection
shall produce them as they are kept in the usual course of business or shall organize and label
them to correspond with the categories ofthe request").
The defendant is certainly entitled to inspect and/or copy properly requested documents,
and the plaintiff will continue to respect this right. lf the defendant wishes to copy all documents
en masse at his expense and have them shipped to Wilmington, the plaintiff will help facilitate
this. But the defendant is not entitled to force the plaintiff to fly voluminous documents up to its
counsel’s offices through the mechanism of a six-day deposition notice, or even a request for
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Case 1 :04-cv-00389—***—IV|PT Document 41 Filed 08/22/2005 Page 2 of 3
Younc Connwnr Srnacnrr & Tnrsoa, LLP
The Honorable Kent A. Jordan
August 2l, 2005
Page 2
production. The Federal Rules simply do not require this. See Fed. R. Civ. P. 34(ln). If the
defendant wishes to review the documents requested in the deposition notice, the deposition
should go forward in Atlanta.
2. Under case law from within the Third Circuit 30(b)(6) depositions normally
should take place at the location ofthe organization ’s princloal place of business. See County
. Council of Northampton Co. v. SHL Systemhouse Corp., 1999 WL 269918 (E1). Pa. Apr. 20,
1999) (citing 8A Wright & Miller, Federal Practice and Procedure § 2112 at 81 (1994) ("The
deposition of a corporate agent or officer should ordinarily be held at the principal place of
business.”); Generale Bank Nederland, NV v. First Sterling Bank, 1997 WL 778861 (E.D. Pa.
1997) (“The general rule, however, is that the deposition of a corporate officer or agent should be
taken at the corporation's place of business"). The great weight of authority from outside the
Third Circuit points to a similar conclusion. Although these cases are generally in the context of
defendants’ depositions, the opinions offer no "bifurcated general rule" or other reason to depart
from the general rule where a plaintiff 30(b‘)(6) witness is deposed. See, eg., Thomas v. Int ’l
Bus. Machines, Inc., 48 F.3d 478, 483 (10t Cir. 1995); Dwelly v. Yamaha Motor Corp., 214
F.R.D. 537, 541 (D.Minn. 2003); Custom Form Mfg. v. Omron Corp., 196 F.R.D. 333, 336 (N .D.
Ind. 2000).
Cases suggesting that the deposition of a plaintiff corporation should go forward in the
place where the plaintiff "chose to bring the action" lose their force when one considers that this
case, originally filed as a bankruptcy adversary proceeding and alleging violations of the
Bankruptcy Code, was brought in the only venue in which it could reasonably be brought -— the
United States Bankruptcy Court for the District of Delaware, the site of the plaintiffs
previously-filed chapter 11 case. See 28 U.S.C. § 1334(b) (granting district courts original
jurisdiction over all civil proceedings "arising under” title 11). All original defendants except
one were domiciled in Mexico at the time the case was first filed, so personal jurisdiction
anywhere else in the United States was questionable as to those defendants, while the only U.S.»
based defendant (lnter—World Communications, Inc.) was insolvent. Additionally, this case
raised claims that arise from the Bankruptcy Code, li U.S.C. §§l01—l330, making the
bankruptcy coun the only logical place to file. Thus, it is an overstaternent to imply that the
plaintiff had any real choice as to where to file its bankruptcy adversary proceeding, which was
withdrawn to this Court at the insistence of the defendants. Moreover, the cases cited by the
defendants do not account for the impracticality of combining a 30(b)(6) deposition with a
request for large numbers of documents.
3. Reciprocity and fairness suggests that the deposition should be taken in Atlanta.
While defendant Dean Hollis now lives in San Antonio, Texas, the plaintiff offered to take Mr.
I-Io1lis’ deposition at any place convenient for him. The defendant chose Wilmington. The
plaintiff believes that fairness dictates that it should have a reciprocal right to take its corporate
representative deposition at or near its corporate offices, in a location closer to its documents,
lead counsel, and offices.
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Case 1 :04-cv-00389-***-MPT Document 41 Filed 08/22/2005 Page 3 of 3
Yomwe Con/tway STARGATT & TAYLoR, LLP
The Honorable Kent A. Jordan
August 21, 2005
Page 3
For these reasons, the Plaintiff requests that the Court overrule the defendants’ request.
Respectfully submitted,
Sean M. Beach
SMB : js
cc: The Honorable Mary Pat Thynge (by hand delivery)
Marla Rosoff Eskin, Esq. (by hand delivery)
DBGl:l818976.2 057484»100¥

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