Reiffer v. Moeller

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Paul Reiffer, ) No. CV 20-00561-TUC-RM (LAB) 9 ) Plaintiff, ) ORDER 10 ) vs. ) 11 ) M. Ted Moeller and Moeller Law Office,) 12 P.C.., ) ) 13 Defendants. ) ) 14 Pending before the court is the plaintiff’s motion for a protective order filed on 15 September 15, 2021. (Doc. 41) The defendants filed response on September 29, 2021, and 16 the plaintiff filed a reply on October 1, 2021. (Doc. 44), (Doc. 46) 17 This is a copyright infringement action. The plaintiff, Paul Reiffer, is a professional 18 photographer. (Doc. 30, p. 2) He alleges that the defendants used one of his photographs, 19 an image of the Colorado river’s horseshoe bend, to advertise their legal services without his 20 permission. (Doc. 30, p. 3) 21 On September 9, 2021, the defendants served on Reiffer a notice of deposition for 22 September 28, 2021, at the defendants’ counsel’s law office in Scottsdale, Arizona. (Doc. 23 41-2, pp. 2-3) In the pending motion, Reiffer moves for a protective order pursuant to 24 Fed.R.Civ.P. 26(c)(1). (Doc. 41, p. 3) He moves that the court order that his deposition be 25 taken by remote means because he is a resident of the United Kingdom (U.K.) and travel is 26 currently prohibited between the U.K. and the United States. (Doc. 41, p. 3) 27 28 1 Discussion 2 Pursuant to Fed.R.Civ.P. 26(c)(1): 3 A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending . . . . The court may, 4 for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or 5 more of the following: 6 (A) forbidding the disclosure or discovery; 7 (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery; [or] 8 (C) prescribing a discovery method other than the one selected by the party 9 seeking discovery; 10 * * * 11 12 Pursuant to Fed.R.Civ.P. 30(b)(4), “the court may on motion order . . . that a 13 deposition be taken by telephone or other remote means.” Ordinarily, “[t]he burden is upon 14 the party seeking the order to ‘show good cause’ by demonstrating harm or prejudice that will 15 result from the discovery.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004), cert. 16 denied, 544 U.S. 905 (2005). 17 In this case, Reiffer, moves for a protective order precluding the defendants from 18 requiring that he attend the noticed deposition in person. He is a resident of the United 19 Kingdom, and current Presidential Proclamations prevent him from entering the country due 20 to the Covid pandemic. (Doc. 41, p. 2, n. 5) Moreover, he wishes to minimize his exposure 21 to the Covid virus, which would be impossible if he were required to engage in extended air 22 travel. (Doc. 41, p. 4) He moves that the court permit him to attend his deposition “by 23 remote means” pursuant to Fed.R.Civ.P. 30(b)(4). (Doc. 41, pp. 3-4) 24 The defendants filed on September 29, 2021 a document styled “Motion to Strike 25 Plaintiff’s Motion [] for Protective Order as Moot.” (Doc. 44) In the court’s docket, 26 however, it is labeled a response to the plaintiff’s motion, and absent any contrary 27 instructions from the defendants, the court construes it as such. Id. 28 1 The defendants explain that they have “voluntarily cancelled Plaintiff’s deposition, 2 subject to noticing the deposition at a later date.” (Doc. 44, p. 1) They argue that “Plaintiff 3 filed the Complaint in Arizona and, therefore, consented to this jurisdiction.” Id. They 4 further assert that “a cursory review of the Maldives official website reveals that there are 5 no restrictions on Plaintiff traveling to and from the Maldives.” (Doc. 44, pp. 1-2) They 6 conclude that “other than the inconvenience of travel, there should be nothing standing in the 7 way of the deposition going forward.” (Doc. 44, p. 2) 8 The court finds that Reiffer has shown good cause1 in support of his motion. He 9 presents uncontradicted information that he is a U.K. resident and currently is not permitted 10 to come to the United States due to the Covid-19 virus pandemic. And even if those 11 restrictions were lifted, travel to Arizona would entail unnecessary risk of exposure to the 12 virus. 13 In an apparent non sequitur, the defendants assert that it is possible to travel from the 14 Maldives to the United States. Reiffer apparently owns a gallery in the Maldives, but, as 15 Reiffer’s counsel explained to the defendants’ counsel prior to the filing of the pending 16 motion, he is a U.K. resident. (Doc. 30, p. 2), (Doc. 41-3, p. 2) Reiffer did file the pending 17 action in Arizona thereby consenting to the court’s jurisdiction. He has consented, however, 18 only to allowing this court to adjudicate his lawsuit. He has not consented to appear in 19 person at a deposition in Arizona, at least, not where he can show good cause for appearing 20 by remote means. The defendants have voluntarily canceled the noticed deposition, but they 21 22 23 1 The court further notes that this action is about the alleged misuse of a single 24 photograph of horseshoe bend, Arizona. It appears that the amount in controversy is on the order of $10,000 dollars. (Doc. 45, p. 3) Fed.R.Civ.P. 26 states generally that “[p]arties may 25 obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or 26 defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant 27 information, the parties’ resources, the importance of the discovery in resolving the issues, 28 and whether the burden or expense of the proposed discovery outweighs its likely benefit.” 1 || maintain that they still have a right to depose the plaintiff in person in Arizona at a future 2 || date. (Doc. 44, p. 1) Reiffer’s motion is not moot. 4 IT IS ORDERED that the plaintiff's motion for a protective order filed on September 5 | 15, 2021 is GRANTED. (Doc. 41) If the defendants choose to depose the plaintiff, they 6 || must do so by “remote means.” Fed.R.Civ.P. 30(b)(4). 8 DATED this 4" day of October, 2021. 10 11 Roches ( i. Bowman D Leslie A. Bowman United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _4-