Mr. Chiu also states that he cares for his 87 year old parents, and it would be an extreme
5 l hardship for him to leave them. at 'll 5. Mr. Chiu states that his native language is Cantonese and
6 he would thus prefer to be deposed with a Cantonese interpreter present. at q[<][ 6-7.
The Defendants replied to the opposition on October 30, 2017. The Court held a hearing on
8 the Motion and took the matter under advisement on November 22, 2017.
DISCUSSION
The Defendants posit that because the Plaintiffs initiated this action on Guam, there is a
11 . presumption that Mr. Chiu, the Plaintiffs' designated representative, should submit to deposition in
12 Guam. See Def' s Reply to Dens' Opp'n 2 (Oct. 30, 2017). In Opposition, the Plaintiffs argue there
13 Q is a general rule that "the deposition of a corporate officer or employee should usually be taken at
14 i the corporation's principal place of business," and thus Mr. Chiu should be deposed in Hong Kong,
15 | Plaintiffs' principal place of business. Pls' Opp'n to Def' s Mot. 2-3 (Oct. 9, 2017).
Under Rule 30(b)(6) of the Guam Rules of Civil Procedure ("GRCP"),
"A party may in the party's notice and in a subpoena name as the deponent a ... private corporation ... and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify... The persons so designated shall testify as to matters known or reasonably available to the organization . . . ."
i 22 Guam R. Civ. P. 30(b)(6) (2014).
The GRCP also allow for deposition by alternative means in Rule 30(b)(7), which provides
24 "[t]he parties may stipulate in writing or the court may upon motion order that a deposition be taken
25 I by telephone or other remote electronic means." Guam R. Civ. P. 30(b)(7). The language of Guam
26 GRCP 30 is substantially similar to the language in Rule 30 of the Federal Rules of Civil Procedure
27 ("FRCP"), thus federal authorities are persuasive in interpreting Rule 30 of the GRCP. See Guam
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 3 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam) 1 R. Civ. P. 30 (2014), Q; Fed. R. Civ. P. 30 (2016), see also Sumitomo Constr. Co. v. Zhang Ye,
2 , Inc., 1997 Guam 8 '][. 17 (reasoning "[g]enerally when a legislature adopts a statute which is
3 Eidentical or similar to one in effect in another jurisdiction, it is presumed that the adopting
4 jurisdiction applies the construction placed on the statute by the originating jurisdiction.").
Like the GRCP, the FRCP "do not specify the situs of a patty deposition noticed pursuant to
6 | Rules 30(a)(1) or 30(b)(6)." In re Outsidewall Tire Litigation, 267 F.R.D. 466, 470-71 (E.D.Vir.
7 2010). Federal trial courts have interpreted the rules to mean "the deposition of a party may be
8 i noticed wherever the deposing party designates, subject to the court's power to grant a protective
9 Eorder." Fausto v. Credigy Services Corp., 251 F.R.D. 427, 429 (N.D. Cal. 2008). However, as noted
10 by the Defendant in the Motion and Reply, some federal trial courts "presume that a plaintiff may
11 ¥ be deposed in the judicial district where the action was brought, inasmuch as the plaintiff, in
12 ; selecting the forum, has effectively consented to participation in legal proceedings there." Fenerjian
13 v. None Shim Company, Ltd, No. 13-CV-04115-WHO (DMR), 2016 WL 1019669, at *2 (N.D.
14 E Cal. Mar. 15, 2016) (citations and quotations omitted).l Courts also extend this rule to
15 representatives of plaintiff corporations. See Fenerjian, 2016 WL 1019669, at *l-2 (addressing
16 deposition noticed under Rule 30(b)(6)).
The Plaintiff argues that "[a]n exception to this general rule is made for corporate designees,
18 who are normally deposed at the corporation's principal place of business." Fausto v. Credibly
19 Services Corp., 251 F.R.D. 427, 429 (N.D. Cal. 2008) (citing Dwelly v. Yamaha Motor Corp., 214 I
20 F.R.D. 537, 541 (D. Minn. 2003)). However, the Court can distinguish the authorities cited by the
21 2 Plaintiff as inapplicable here as those authorities dealt with the depositions of a foreign corporate
22 i defendant Not one case cited by Plaintiff for the presumption that the deposition of a corporate
see also Peterson v. Alaska Communications Svstems Group, Inc., No. 3: 12-cv-00090-TMB, 2017 WL 2312952, at *4 (D. Ala. Mar. 6, 2017) (reasoning "[a] plaintiff must typically make himself available for a deposition in the district in which the action is pending"), P.Y. M.T. v. Citv of Fresno, No. 1:15-cv-710-JAM-BAM, 2016 WL 2930539, at * (E.D. Cal. May 19, 2016) (reasoning "there are general presumptions that a Plaintiffs deposition should proceed in the forum district because, unlike a Defendant, the Plaintiff is here by choice. Generally, plaintiffs are required to make themselves available for examination in the district in which suit was brought, because the plaintiffs selected the forum"); In re Outsidewall Tire Litigation, 267 F.R.D. 466, 471-72 (E.D.Vir. 2010).
|I See United States v. One Gulfstream G-V Jet Aircraft Displaving Tail Number VPCES, 304 F.R.D. 10 (D.D.C. 28 2014) (addressing U.S. Government noticed deposition of alleged owner of property subject to in rem action brought
I . . . . I CV1049-16 Oxford Propemes and Finance Ltd., et al. v. Chrlstlne Lee et al. Page 4 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam) 1 agent will occur at the corporation's principal place of business extends such presumption to a
2 deposition of a named plaintiff, noticed by the defendant.
3 Thus the Court declines to extend the presumption advanced by the Plaintiff without more
4 compelling authority. Instead the Court will defer to those authorities cited by the Defendant which
5 presume a plaintiff shall be deposed in the forum where a matter is pending. Therefore, the Court is
6 guided by the "general rule that a plaintiff will be required to make himself or herself available for
7 examination in the district in which suit was brought." Fenerjian, 2016 WL 1019669, at * 2. This
8 presumption is not irrefutable, "[t]o overcome this presumption ... the plaintiff has the burden of
9 proving that undue hardship or exceptional or compelling circumstances justify his refusal to travel
10 to his chosen forum." Ki (citing Mullins v. Premier Nutrition Corp., No. C-13-01271-RS(DMR),
11 2014 WL 4058484, at *1 (N.D. Cal. Aug. 15, 20l4)) (citations and quotations omitted).
12 The plaintiff bears the burden of showing undue hardship or exceptional or compelling
13 circumstances to justify refusal to submit to deposition in the forum where litigation is pending. See
14 Mullins, 2016 WL 4058484 at *2. In Mullins, the plaintiff argued that he could not travel to the
15 forum where litigation was pending for his deposition because of a family related issue, and the
16 need to be in other locations at unpredictable times. In finding that the plaintiff had not
17 demonstrated the exceptional or compelling circumstances necessary to move or delay the
18 deposition, the court reasoned the plaintiff's declarations were "devoid of detail .. [and did] not
19 persuade the court that plaintiff's personal circumstances hamper him in any significant way from
20 traveling for two days to appear for his deposition in the forum in which he chose to tile ...." Ii
21 Similarly in Fenerjian, the Court found several plaintiffs' representatives' proffered reasons
22 of childcare responsibilities, work, medical treatment, and financial burden of missing work, were
24 by U.S. Government); see also Rundquist v. Vapiano SE, 277 F.R.D. 205 (D.D.C. 2011) (addressing plaintiff's motion to compel appearance of officers, directors, or managing agents of defendant corporation for depositions), in 25 re Outsidewall Tire Litigation, 267 F.R.D. 466, 470 (E.D.Vir. 2010) (addressing the situs of a defendant corporation's corporate representative and managing agent's deposition noticed by plaintiff), McDougal-Wilson v. Goodyear Tire 26 and Rubber co., 232 F.R.D. 246 (E.D.N.C. 2005) (addressing defendant-employer's motion to quash and for a protective order concerning plaintiff" s proposed Rule 30(b)(6) deposition of defendant employer);Dwells v. Yamaha 27 Motor Corp., 214 F.R.D. 537 (D. Minn. 2003) (addressing plaintiff's motion to compel production of defendant's corporate witness);Slater v. Upjohn Co.,593 F.2d 649 (5th Cir. 1979) (addressing issue related to plaintiff's notice of 28 deposition and whether trialcourt action of vacating notice and prohibiting or postponing the deposition was proper).
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 5 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pls' Attendance at Defs' Dap. in Guam) 1 insufficient to show undue burden or exceptional or compelling circumstances. See Fenerjian, 2016
2 WL 1019669, at *3. The court found the explanation of work or childcare only showed usual
3 difficulty or inconvenience and did not rise to an undue burden or exceptional or compelling
4 circumstances because Plaintiffs brought the action and chose the forum. L
5 Further, the Court found that the provided declarations did not provide any detail about the
6 medical issues or course of treatment that was adversely affected by the burden of appearing for
7 depositions. The court also reasoned that while one of the plaintiff"s daughters may have had a
8 medical condition, there was no information about the specific condition the daughter faced, its
9 severity, or any necessary special medical treatment - or its frequency or predictability. Ld Thus the
10 Court found the plaintiffs had not met their burden, stating specifically that the "meager record
11 submitted by the [plaintiffs] does not persuade the court that their personal circumstances hamper
12 them in any significant way from traveling to appear for depositions in the forum in which they
13 chose to file." Id. at *4.
14 Here, as in Mullins and Fenerjian, the Court finds Plaintiffs have not provided sufficient
15 evidence to demonstrate undue burden or exceptional or compelling circumstances for this court to
16 stray from the rule that the plaintiff should submit to a deposition in the forum where litigation is
17 pending. Mr. Chiu cites to his various work responsibilities, but there is no specific adverse effect
18 that he points too beyond general assertions of the work he does. While the Court will not dispute
19 the importance of Mr. Chiu's work, the Court finds it difficult to believe that fifty-seven companies
20 would cease to operate if their financial officer was subject to deposition in Guam with only a two
21 hour difference from Hong Kong, and the state of modem communication technology. Notably, Mr.
22 Chiu does not dispute that he should be deposed, only that he cannot travel to Guam for such
23 deposition. The Court is unconvinced that travelling to Guam from Hong Kong for the time it takes
24 to be deposed presents an undue burden or exceptional or compelling circumstances. The Court is
25 similarly unconvinced that Mr. Chiu's being physically out of the office for a few days at most is
26 sufficient to rebut the presumption that the Plaintiff should make representatives available for
CVl049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 6 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Defs' Dep. in Guam) 1 deposition in the forum they file. Mr. Chiu signed the verified complaint in this matter and thus
2 should have anticipated being subject to proceedings in Guam related to the matter.
3 Similarly, without more information, the Court finds Mr. Chiu's argument that he takes care
4 of his 87 year old parents is similarly unsubstantiated. The court has no information about any
5 specific conditions of Mr. Chiu's parents beyond their age. In order to meet the standard, the Court
6 would need information on their condition, the type of care Mr. Chiu provides, and why no one else
7 can fill his role for the time he is away for his deposition. Importantly Mr. Chiu admits he traveled
8 to Guam at least twice in the last five years. His parents were already in their eighties and he
9 obviously had some arrangement that allowed for him to travel at that time. Again, while the
10 deposition poses an inconvenience, it is not an undue burden.
11 Thus, having found the Plaintiffs have not demonstrated that Mr. Chiu's travel to Guam will
12 present an undue burden, nor have Plaintiffs shown exceptional or compelling circumstances, the
13 Court hereby GRANTS the Defendants' Motion to Compel Mr. Chiu's deposition in Guam.
14 Deposition by Videoconference
15 In Fenerjian, the court addressed an argument similar to the argument advanced by Plaintiffs
16 here, that Mr. Chiu's deposition should be taken by video conference. LI The court ruled that
17 because the plaintiffs were named plaintiffs in the action, the Defendants "are allowed to evaluate
18 their credibility ... through in-person depositions." Fenerjian, 2016 WL 1019669, at *4. The Court
19 agrees that a deposition by videoconference would address several logistical issues, such as the lack
20 of a certified Cantonese interpreter in Guam. However, the Court agrees with both Defendant and
21 the Fenerjian court that since Mr. Chiu signed the verified complaint and was designated by
22 Plaintiffs under 30(b)(6), and because Defendants have demanded an in-person deposition by oral
23 examination, Defendants are entitled to compel Mr. Chiu's presence to weigh his credibility.
24 While this court does have discretion to order a video conference, on the facts presented, the
25 Court will not make such an Order unless both parties agree. Otherwise, the Court follows the
26 general rules discussed above, that the noticing party selects the deposition location, and the
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 7 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Dens' Dep. in Guam) 1 plaintiff is generally expected to be deposed in the district where the litigation is pending. The I
2 ! Court therefore DENIES the Plaintiffs' request that Mr. Chiu be deposed by videoconference.
The Court will note that Defendant is on notice that the Court has discretion to order an
4 ! interpreter be present at a deposition. See Bethlehem Area Sch. Dist. v. Zhou, No. CW.A. 09-3493, 5 2011 WL 1584083, at *2 (E.D. Pa. Apr. 27, 2011). Other courts have ordered officers, such as
6 interpreters and court reporters, should be present in the same location as the deponent to avoid
7 logistical problems. See Gould v. Motel 6 Inc., No. CV09-8157 CAS (FMOx), 2011 WL 13128160,
at *7 (C.D. Cal. March 28, 2011). Thus, the Court ORDERS Defendant to provide an English-
9 i Cantonese interpreter in Guam at Defendant's expense, since Defendant declined the
10 videoconference option. The Plaintiffs may of course provide a check interpreter at Plaintiffs'
11 expense. However the interpreter ordered to be present by the Court shall be provided by
12 Defendant, as a cost of the deposition. See In the Matter of Majestic Blue Fishers, LLC, No. 11-
13 00032, 2013 WL 12233715 at *1 (D. Guam Jun. 21, 2013) (reasoning "[w]ith respect to deposition
14 a interpreter fees, the party seeldng discovery must bear the cost of having [his] questions translated
15 into the native language of the deponents and having the deponents' answers translated into
16 English") (citing E. Boston Ecumenical Communitv Council, Inc. v. Mastrorillo, 124 F.R.D. 14, 15
17 1(D. Mass. Feb. 22, 1989) (internal quotations onlitted)).
18 Attornev's Fees
Finally, Defendants argue that if they prevail on the Motion, they are entitled to Attorney's
20 fees under Rule 37(a)(4) of the GRCP. Dens' Mot. Compel Pls' Attendance at Dep. in Guam 5 (Sep.
21 ll, 2017). Plaintiffs cite to Rule 37(a)(4) which provides that "a party who obtains an order
22 granting a discovery motion shall recover attorney's fees unless the court finds that the opposition
23 to the motion was substantially justified or that other circumstances make an award of expenses l . ,, . 24 unjust. Guanl R. Civ. P. 37(a)(4). One court in Guam has found that the 'substantially justified' I . . . . ; . . . 25 standard is satisfied If "there is a genuine dispute or if reasonable people could differ as to the
26 appropriateness of the contested action. Substantial justification means justified in substance or in
27 I the main, i.e., justified to a degree that could satisfy a reasonable person." Guam Indus. Servs., Inc
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 8 of 9 DECISION AND ORDER (re Dens' Mot. to Compel Pls' Attendance at Defs' Dep. in Guam) 1 v. Zurich Am. Ins. Co., No. CV 11-00014, 2013 WL 4525228, at *2 (D. Guam Aug. 26, 2013)
2 (citing Pierce v. Underwood, 487 U.S. 552, 563-66 (1988)) (internal quotations omitted).
3 The Court finds that because the authorities presented to the Court were mostly trial court
4 opinions interpreting Rule 30 of the FRCP, reasonable minds could differ as to the interpretation of
5 Rule 30 of the GRCP as it relates to the instant matter. Therefore the Court finds that Plaintiffs'
6 arguments discussed herein, under these circumstances, were substantially justified. The Court
7 therefore DENIES Defendants' request for attorney's fees.
8 CONCLUSION
9 By preponderance of the evidence and based on the foregoing reasons, the Court GRANTS
10 Defendants' Motion to Compel Plaintiffs' Attendance at Deposition in Guam.
11 1. The Parties are ORDERED to meet and confer to decide the details, including the date and
12 location (in Guam), of Mr. Chiu's deposition. The Plaintiffs are ORDERED to present Mr.
13 Chiu at the appropriate time, in Guam, to be deposed.
14 2. The Court ORDERS Defendants to provide an English-Cantonese interpreter in Guam at
15 Defendants' expense for the deposition.
16 3. The Court DENIES Plaintiffs' request to order Defendants to depose Mr. Chiu by
17 videoconference. .
18 4. The Court DENIES Defendants' request for attorney's fees.
20 A Status Hearing is set for Mn 2 9 ma at lOa-vV\ .- 21 U 5; #Imp 22 SO ORDERED FEB 23
24 SERVICE VIA COURT BOX I acknowledge that a copy of the /,1 The Honorable Anita A. Sukola 25 original hereto was placed in the court box of; Judge, Superior Court of Guam 26 Arrow, Cowan 1 Qfrfféz, J- /Hahn" 27 Date: 8-/X TT. et 1/:/y Hz
28 !~ Deputy Clerk,Su riot Court of Guam
CV1049-16 Oxford Properties and Finance Ltd., et al. v. Christine Lee et al. Page 9 of 9 DECISION AND ORDER (re Defs' Mot. to Compel Pis' Attendance at Defs' Dep. in Guam)