The Hole in Rule 30

Have you ever wondered about the gaping hole in Federal Rule of Civil Procedure 30? The rule goes to great lengths to explain when a deposition can take place and how it should be conducted. Why is there no parallel language concerning where a deposition should be held? The minimalist requirement in the rule is simply that “[t]he notice must state the time and place of the deposition and, if known, the deponent’s name and address.” Of course, the absence of direction in the rule is not a problem when opposing counsel have a good working relationship. Indeed, I recall no instance where adverse counsel and I were unable to reach accommodation on the situs of a deposition.

A federal judge whom I know, however, recently told me that increasingly he has been required to adjudicate disputes among adverse parties regarding the location of depositions. In one week, he said, he was compelled to rule on that issue in multiple cases. Whether this signifies an uptick in this type of conflict, it occurred to me that it might be useful to review the “rules of the road” as developed by the courts in the absence of guidance in the rule itself.

The starting point is the clear import of the language quoted above: Absent agreement or court order, the deposing party may select the place of the deposition. The cases recognize several presumptions that attend this general rule. A plaintiff is usually subject to deposition where suit is brought, even if residing elsewhere. A defendant generally is deposed at its place of residence or at the corporation’s headquarters. However, these are only guidelines. Depending on the facts of the case, the court, pursuant to Rule 26(c), may find “good cause” to exercise its discretion to move the deposition’s locale to “protect a party or person from . . . undue burden or expense.” The three general standards that courts apply in resolving these disputes are cost, convenience, and efficiency.

Thus, in determining where depositions should occur and who should pay, courts often look to the factors of time, expense, and inconvenience of travel, as well as the ability of the court to intervene should disputes arise. The last factor is especially important in litigation involving overseas entities, where, for example, the corporate headquarters of a Japanese defendant might be many time zones away, leaving the court with no practical ability to intervene in real time should problems arise during the depositions. Requiring that employees of a Japanese defendant travel to the United States for depositions, however, raises its own set of issues, including cost, time away from work, and potentially debilitating jet lag for inexperienced travelers.

Other variables include overall litigation efficiency (as in a case where, for example, most documents or witnesses are in one location); counsel’s locale; the number of corporate representatives sought to be deposed; the likelihood of significant discovery disputes necessitating court intervention; the parties’ financial wherewithal; whether the out-of-forum deponents frequently travel to the forum; and the equities related to the claim and the parties’ relationship.

Shockey v. Huhtamaki, Inc., a Fair Labor Standards Act (FLSA) case litigated in Kansas, is instructive. Seven “opt-in” plaintiffs were noticed for deposition there. They objected due to the cost, noting that their individual damages were less than the cost of travel to Kansas. They offered three choices in their motion for protective order: depose them where they lived, order defendants to pay their costs of travel to Kansas, or conduct the depositions by telephone or teleconference. The defendant argued that the plaintiffs had chosen their forum and were obliged to appear there for their depositions. Recognizing the remedial nature of FLSA claims, the modest damages alleged by each plaintiff, and the financial burden on them, the court ordered that their depositions be taken by videoconference.

Judicial discretion being what it is, however, the cases are all over the lot. Indeed, the Shockey court cited two FLSA decisions on similar facts that were decided against the plaintiffs. Given the vicissitudes of the judiciary, the overarching aspiration of the rules—that adverse parties try to cooperate throughout the case—remains the lodestar. The certainty of a compromise agreement may be worth more than the gamble on a favorable ruling.