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noting that presumption that defendant be deposed at his place of residence can be rebutted "if the plaintiff was constrained in choosing the forum of the litigation, or if cost, convenience, and litigation efficiency dictate otherwise"
Summary of this case from JB Aviation, LLC v. R Aviation Charter Servs., LLCOpinion
98 Civ. 7684 (JGK) (RLE)
May 26, 2000
MEMORANDUM OPINION ORDER
Defendant Korea Electric Power Corporation's ("KEPCO") seeks a protective order regarding plaintiffs April 11, 2000 notice to take several depositions. A conference having been held in this case on May 1, 2000, and the Court having considered the letter submissions of the parties, defendant's motion is GRANTED, in part, and DENIED, in part.
A. Min Sun Ki ("Min")
KEPCO is a foreign corporation incorporated in and having its principal place of business in Seoul, South Korea. Min, the former finance director of one of KEPCO's subsidiaries, has his place of residence in Seoul. Defendants contend that Min's deposition should therefore take place in South Korea. Pro se plaintiff Pompeyo Realuyo ("Realuyo") is a United States citizen and an attorney with an office in New York City. He is suing his former clients Ramon Donatello D. Diaz, Carol Diaz, and Com-Mex International Company (the "Diaz defendants"), and KEPCO, who he alleges tortiously interfered in his contract with the Diaz defendants by inducing them to breach their retainer agreement with him. He argues that Min should be deposed in New York because, inter alia: (1) plaintiff is a solo practitioner and KEPCO is better able to absorb the costs of the deposition; (2) all of the attorneys practice in New York; (3) Min occasionally travels to the United States on business and defendants maintain an office in New York; and (4) the contentious nature of the parties' relationship requires court supervision of the deposition. Federal Rule of Civil Procedure 26(c) provides in part:
[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 any 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 the designation of the time or place.
The Court finds that defendants have shown sufficient cause to protect them from the burden and expense of producing Min for a deposition in New York.
As a general matter, a corporate officer should be deposed at his place of residence or the corporation's principal place of business. See Buzzeo v. Board of Education of Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y. 1998); Snow Becker Krauss P.C. v. Poryectos e Instalaciones de Desalacion, S.A., 1992 WL 395598, at *3 (S.D.N.Y. Dec. 11, 1992). Underlying this rule is the fact that plaintiff has chosen the forum of the action, whereas the defendant has not. Buzzeo, 178 F.R.D. at 392. Moreover, it is generally the plaintiff who must "bear any reasonable burdens of inconvenience that the action presents." Gulf Union Ins. Co. V. MN Lacerta, 1992 WL 51532, at *5 (S.D.N.Y. March 9, 1992). This presumption can be rebutted, however, if the plaintiff was constrained in choosing the forum of the litigation, or if"cost, convenience, and litigation efficiency" dictate otherwise. Id; Mill-Run Tours v. Khashogi, 124 F.R.D. 547, 550-51 (S.D.N Y 1989). Ultimately, the Court has wide discretion in selecting the place of examination. See 8A C. Wright and Miller, Federal Practice Procedure § 2112 at 75 (1994) and citations therein.
The balance of the equities in this case is close, but ultimately weigh in favor of the defendant. It is true that plaintiff is a solo practitioner and, in all likelihood, it would be less financially burdensome for KEPCO to bring Min to New York City than for Realuyo to bear the costs of traveling to South Korea. Moreover, the total cost of Min's deposition are likely to be less if taken in the United States, as all of the attorneys are in New York City. Holding the deposition here would require only Min to travel, whereas holding it in South Korea will require foreign travel by both Realuyo and Min's counsel.
On the other hand, traveling to New York City for a deposition would be extremely burdensome given Min's work schedule in Seoul, as he would have to miss nearly a week of work. Plaintiff suggests that Min has occasionally traveled to the United States on business, but he has no plans to travel here until at least July 2000. See Min Decl. ¶ 4. While Judge Koeltl determined that there are sufficient contacts in New York City to defeat defendants' motion to dismiss on grounds of forum non conveniens, that decision was based largely upon the fact that the Diaz defendants entered into a contingency fee agreement with Realuyo in New York City. In contrast, the tortious interference that Realuyo alleges KEPCO to have engaged in occurred in the Phillipines. As such, contrary to plaintiffs assertion, New York City is not necessarily "the focal point for all of the parties," and is certainly not for KEPCO. Moreover, while there has been some contentiousness between the parties, the fact that discovery disputes may arise does not justify requiring Min to appear for a deposition in the forum. "[S]uch a conclusion would collapse the presumption in favor of deposing corporate defendants in their place of business and amounts to overprotection of a court's interest." Snow Becker Krauss, at *2.
"Min Decl." refers to the Declaration of Min Sun Ki, dated and signed in April, 2000.
In an Opinion and Order dated March 22, 2000, Judge Koeltl denied defendants' motion to dismiss the complaint based on forum non conveniens, because the original contingency fee agreement between Realuyo and the Diaz defendants was executed in New York.
That KEPCO maintains a small office in New York City is inconsequential given that its alleged conduct has no relation whatsoever to the business of that office.
Ultimately, the deciding factor in this dispute rests on Realuyo's failure to demonstrate to the Court the importance of Min as a witness in this litigation sufficient to justify the burden and expense of requiring him to travel half way around the world to appear for a one-half day deposition. Defendants concede that Min has firsthand knowledge of the handling of the Diaz settlement, but Realuyo has not specified how Min's knowledge fits into his claims for breach of contract against the Diaz defendants or for tortious interference against KEPCO.. Realuyo noticed Min's deposition in New York City without seeking discovery through any less burdonsome means and without determining if the information sought is more readily obtainable from other sources. Realuyo served his notice to depose Min at the very same time as his document production and interrogatory requests, and before he deposed the Diaz defendants, who reside in California. While Realuyo is free to seek discovery in any order he pleases, that prerogative must be weighed against the failure to demonstrate the importance of Min as a witness in this litigation. Cf . Reliable Volkswagen Sales and Service Company v. World-Wide Automobiles Corp., 26 F.R.D. 592, 594 (D.N.J. 1960) (deferring decision on whether executive officer of West German corporation must appear for a deposition in New Jersey until defendants responded to plaintiffs requests for admissions and interrogatories).
For the foregoing reasons, the Court finds that defendant KEPCO has demonstrated sufficient cause to warrant the use of the Court's discretionary power to protect Min from the burden of appearing for a deposition in New York. Defendants' motion for a protective order is GRANTED. Min's deposition shall take place at his residence or place of business in Seoul, South Korea. In the alternative, Realuyo may take Min's deposition upon written questions as provided for under Federal Rule of Civil Procedure 31.
B. Carol Diaz
With regard to defendant Carol Diaz, Realuyo argues that she is a named defendant and should be deposed in New York. However, Realuyo has failed to provide to the Court any indication that she has any knowledge of events regarding the claim. Realuyo bases his insistence on her deposition in New York solely on Judge Koeltl's decision that Carol Diaz remain as a defendant in this case. In his March 22, 2000 Opinion and Order, Judge Koeltl decided that Carol Diaz was a proper defendant by imputing to her the actions of her husband, Ramon Donatello D. Diaz, based on the business partnership between Mr. and Ms. Diaz. Judge Koeltl made no findings that Carol Diaz had any personal action alleged in Realuyo's complaint.
Based on the absence of any indication of direct knowledge of events by Carol Diaz, the Court permits Realuyo to depose her at her principle place of business in California.
C. KEPCO employees
Realuyo noticed the depositions of several former KEPCO employees: Yan Ho Oh; John Heegong Hahm; Chong Hun Rieh; and Dong Sun Park (who defendants deny was a KEPCO employee). Because they either were not agents or are no longer agents of the defendants, Realuyo must subpoena the witnesses if he intends to take their deposition. Realuyo also noticed several current KEPCO employees: Choi Soo Byung, President of KEPCO; Song Chang-Hyun, Treasurer and Director of Finance for KEPHILCO, a subsidiary of KEPCO; and Oh In-Tack, CEO for KEPHILCO. With regard to these potential witnesses, Realuyo has not produced any indication that they had any knowledge of the events at issue. Because Realuyo cannot provide a scintilla of evidence that they have knowledge of the events in question, the Court GRANTS defendants' motion for protective order.
In conclusion, the Court GRANTS defendants' motion for protective order for Min, and the current and former KBPCO employees, and DENIES defendants' motion as to Carol Diaz, but directs that the deposition of Carol Diaz be conducted at her place of business in California.