Buzzeo v. Board of Education

178 F.R.D. 390, 1998 U.S. Dist. LEXIS 10788, 1998 WL 159797
CourtDistrict Court, E.D. New York
DecidedMarch 17, 1998
DocketNo. 97-CV-2466(JM)
StatusPublished
Cited by26 cases

This text of 178 F.R.D. 390 (Buzzeo v. Board of Education) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buzzeo v. Board of Education, 178 F.R.D. 390, 1998 U.S. Dist. LEXIS 10788, 1998 WL 159797 (E.D.N.Y. 1998).

Opinion

ORDER

BOYLE, United States Magistrate Judge.

Before the court is defendants’ motion for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. This motion raises the issue of the applicability of the presumption — that a corporation be deposed at its corporate headquarters — where the corporate defendant and the plaintiff reside within the forum. For the reasons stated below, the court finds that the presumption is not applicable. The corporate defendant is, however, nonetheless entitled to the relief sought based on traditional notions of cost, convenience and efficiency.

BACKGROUND

On September 23, 1997, plaintiffs counsel served eleven deposition notices on the defendant’s counsel, specifying the location of the depositions at the offices of plaintiffs attorneys in Patchogue, New York. See Aff. of Pamela L. Steen, dated Feb. 19, 1998.

By motion dated February 6, 1998, the defendant moved for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, directing that the depositions of Hempstead Union Free School District employees and board member defendants be held at the premises of the Hempstead Union Free School District, located in Hempstead, New York rather than in Patchogue, New York, the location designated by the plaintiff.

Defendants argue that the depositions of a corporation’s agents should generally be held at the corporation’s principal place of business. Because the school district is a municipal corporation under New York law, defendants claim that the depositions of Hempstead Union Free School District employees and board member defendants should occur at the school district’s headquarters, located in Hempstead. Defendants further claim that it would impose an “undue burden” on them if the depositions occurred in Patchogue, and that the depositions should be held in Hempstead in order to “promote convenience, efficiency, and ... the well-running of the school district throughout the deposition process.” See Aff. of Kevin G. Morrow, Esq. in Supp. Mot. for Protective Order, at ¶ 10, dated February 6, 1998. The defendants additionally assert that the depositions will not be lengthy. See Reply Aff. of Kevin McMorrow, at ¶ 10, dated Feb. 19, 1998. This is corroborated by [392]*392the deposition notices which reflect that three depositions are scheduled per day, with the exception of two depositions that are scheduled for separate dates.

In response, plaintiff argues that the defendants have not shown “good cause,” as required by Rule 26(c) of the Federal Rules of Civil Procedure to warrant the issuance of a protective order. Plaintiff also claims that corporate defendants are often deposed in places other than the corporation’s principal place of business.

DISCUSSION

Under Rule 26(c) of the Federal Rules of Civil Procedure:

[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make an order which justice requires to protect a party or person from ... undue burden or expense, including ... (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place.

Fed.R.Civ.P. 26(e).

As a general rule, “the party noticing the deposition usually has the right to choose the location.” See 7 Moore’s Federal Practice, § 30.20[1][b][ii]; Fed.R.Civ.P. 30(b)(1). The deposition of a non-resident defendant, however, is generally conducted at the defendant’s place of residence. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y. 1997). Where a corporation is involved as a party to the litigation, there is a general presumption in favor of conducting depositions of a corporation in its principal place of business. See Snow Becker Krauss P.C. v. Proyectos e Instalaciones de Desalacion, S.A., 1992 WL 395598, at * 3 (S.D.N.Y. Dec. 11, 1992). “Underlying this rule appears to be the concept that it is the plaintiffs who bring the lawsuit and who exercise the first choice as to the forum. The defendants, on the other hand, are not before the court by choice.” Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D.Mich.1987). In addition, “the plaintiff is generally required to ‘bear any reasonable burdens of inconvenience that the action presents.’ ” Gulf Union Ins. Co. v. M/V Lacerta, 1992 WL 51532, at * 5 (S.D.N.Y. March 9, 1992) (quoting Federal Deposit Insurance Co. v. La Antillana, S.A., 1990 WL 155727, at * 1-2 (S.D.N.Y. Oct. 5, 1990).)

Conversely, “[cjorporate defendants are frequently deposed in places other than the location of the principal place of business, especially in the forum, for the convenience of all the parties and in the general interests of judicial economy.” Sugarhill Records, Ltd. v. Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y. March 19, 1985). The place to conduct the deposition of a corporate defendant and its agents depends upon an analysis of three factors: cost, convenience, and litigation efficiency. See Gulf Union Ins. Co., 1992 WL 51532, at * 5; Zurich Insur. Co. v. Essex Crane Rental Corp., 1991 WL 12133, at * 2-3 (S.D.N.Y. Jan. 21, 1991); Mill-Run Tours v. Khashoggi, 124 F.R.D. 547, 550-51 (S.D.N.Y.1989). Furthermore, “[bjeeause courts retain substantial discretion to designate the site of a deposition, the presumption appears to be merely a decisional rule that facilitates determination when other relevant factors do not favor one side over the other.” Mill-Run Tours, 124 F.R.D. at 550; see also Zurich Insur. Co., 1991 WL 12133, at *2 (“the presumption is not a strong one and operates primarily when other factors do not favor any particular site for depositions”).

The general presumption stated above loses its significance, where, as here, all parties reside within the same forum district. The cases which apply the presumption invariably involve disputes where the defendant resides outside the forum. See, e.g., Snow Becker Krauss, 1992 WL 395598, at * 3 (ordering depositions to be conducted at defendants’ principal place of business in Spain, rather than at plaintiffs offices in New York); Gulf Union Ins. Co.,' 1992 WL 51532, at * 5 (ordering depositions to be conducted at defendant’s principal place of business in Malta); Brown v. Van Nostrand Reinhold, 1990 WL 129183, at * 2 (S.D.N.Y. Aug. 30, 1990) (ordering depositions to be conducted at defendant’s principal place of [393]*393business in New York City, rather than at the offices of plaintiffs attorneys in Melville, New York); Citizens Capital Corporation v. RMI Refinery, 1987 WL 7939, at *1 (S.D.N.Y. March 13, 1987) (ordering depositions to be conducted at defendant’s principal place of business in Rhode Island, rather than at the office of the plaintiffs attorney in New York).

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178 F.R.D. 390, 1998 U.S. Dist. LEXIS 10788, 1998 WL 159797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buzzeo-v-board-of-education-nyed-1998.