Home or Away? Where Should That Deposition Take Place?

by Wilson Elser

When a corporate defendant is sued in a federal court outside its home state, the issue of where its deposition will be conducted can become a bone of contention. The traditional rule, accepted by most practitioners, is that the deposition will take place at the corporate defendant’s principal place of business as opposed to the forum district. This “rule” may require plaintiff’s counsel to take the time and incur the expense to travel a long way to partake in this basic form of discovery.

Before you advise your client that its witness will not have to travel to sit for his or her deposition, however, take a look at the law in the district where your case is pending. A corporate defendant’s ability to convince a federal district court judge to mandate that plaintiff’s counsel travel to the corporate defendant’s principal place of business to take the defendant’s deposition is no sure thing.

The Federal Rules contain many guidelines about noticing and taking the deposition, but they are silent as to the location – thereby placing the issue somewhat in a vacuum. Thus, it seems that a party seeking the deposition – in our case, the plaintiff – may pick the location in its Notice. It then becomes incumbent on the other party – in our case, the corporate defendant – to seek a protective order or move to quash the Notice if it wants the deposition to take place at its place of business.

In the case of a corporate defendant trying to avoid having to travel to the forum district, many factors will be examined.

Cost & Expense
The cost and expense of travel is often cited by corporate defendants as one reason plaintiff’s counsel should be compelled to travel to the corporate defendant’s place of business to conduct a deposition. However, in the case where the corporate defendant is a multinational conglomerate (as opposed to a “mom and pop” operation with limited means and limited resources) such a “cost and expense” argument may be viewed with skepticism, especially when weighed against an individual plaintiff whose counsel will have to incur the travel costs and then recoup the expense as a “disbursement” at the conclusion of the case. The “cost and expense” argument by the corporate defendant will be further undermined if the court focuses on the likelihood that defense counsel will need to travel to the client’s place of business to defend the deposition. In that situation, the same costs and expenses saved by the corporate defendant in having the witness stay at its place of business for the deposition will be incurred by counsel, thereby negating any cost savings.

In one of my products liability cases, the client (a large multinational) did not want to send its witness to the forum district to sit through his deposition, citing the proposed witness’s busy schedule and the need to keep him in the office. Upon inquiry, however, I learned that the proposed witness regularly travelled all over the United States to conduct product inspections, attend trials and (by corporate policy) attend the depositions of all plaintiffs. In fact, he had just attended the plaintiff’s deposition in the very case in which the question of the location of his deposition had arisen! I quickly realized that any my client is too busy” argument would not likely prevail. The bottom line is that a federal district court, when confronted with the dispute, will likely look at many different factors before weighing in on where the corporate defendant’s deposition should take place.

In addition to the obvious cost factor to consider, the court may ask: Where are the counsel located? How many witnesses from the corporate defendant will be deposed? Does the proposed witness often engage in business travel such that “inconvenience” is not likely to be a concern? Has the corporate defendant filed a third-party claim or a counterclaim against the plaintiff such that it can be considered to have invoked the jurisdiction of the forum court? Is the corporate defendant a large and, relative to the plaintiff, wealthy conglomerate?

Be Prepared
Federal court practitioners should not assume that the deposition of its corporate defendant/client will take place at the corporate defendant’s place of business. That may end up being the case, particularly if your adversary doesn’t care about, or doesn’t mind, a short junket to an attractive city. But if you anticipate that the plaintiff will attempt to force your client to travel to the forum state to sit for its deposition, then the wise practitioner should be prepared to show the court that your client can meet the criteria for holding plaintiff to the traditional rule.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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