United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT
matter is before the Court on Defendants' Motion to
Compel [DE 40] filed by Defendant on June 29, 2018. Plaintiff
Christella Lovato filed a response on June 13, 2018, and
Defendant filed a reply on July 20, 2018.
Motion, Defendant asks the Court to compel Plaintiff to
provide multiple possible dates for Plaintiff's
deposition to be taken in the Northern District of Indiana
and to award Defendant its costs incurred in bringing this
Motion. Defendant had originally drafted the Motion and
accompanying Brief to include a request for authorization
forms for release of medical information, but Defendant
represents that it received those releases-which were signed
a few weeks earlier-while Defendant was preparing to file the
instant Motion and Brief.
in response, objects to the location of the deposition but
not to the taking of the deposition in general. Plaintiff
also asserts that Defendant did not meet the conferral
requirements of Federal Rule of Civil Procedure 37. For the
following reasons, the Motion will be granted in part, denied
in part, and set for further briefing on the issue of an
award of costs.
requires that a motion for an order compelling discovery
“must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort
to obtain it without court action.” Fed.R.Civ.P.
Rule 37 certification submitted with the instant Motion,
Defendant's counsel certifies that her firm provided
proposed deposition dates to Plaintiff's counsel on May
4, 14, 16, and 17, which Plaintiff's counsel either
failed to respond to or declined the dates without providing
alternative dates. Further, Defendant's counsel certifies
that her firm requested alternative deposition dates from
Plaintiff's counsel on May 2, 18, 24, and 29 and that no
response was given. Finally, Defendant's counsel
certifies that she contacted Plaintiff's counsel by
telephone and e-mail on June 27, 2018, and that
Plaintiff's counsel refused to discuss the issues
telephonically and did not agree to produce Plaintiff for her
deposition or provide any dates for the deposition, though
Plaintiff did suggest a conversation be held the next week.
certification, and the e-mail messages submitted with the
Motion, show a pattern of Defendant's counsel's
attempts to resolve this dispute without the Court's
involvement. Plaintiff argues that Defendant should have been
required to attempt one more conferral, specifically a
telephone call on July 2, 2018. In light of Defendant's
numerous attempts over the previous weeks to set a deposition
date, the Court finds no reason to deny the Motion based on
the location of Plaintiff's deposition, this is a matter
left to the Court's discretion. New Medium Techs. LLC
v. Barco N.V., 242 F.R.D. 460, 462 (N.D.Ill. 2007).
However, the general rule is that a plaintiff must attend a
deposition in the district where the case was filed.
Undraitis v. Luka, 142 F.R.D. 675, 676 (N.D. Ind.
1992). The reason for the rule is that “the plaintiff
has chosen the forum voluntarily and should expect to appear
for any legal proceedings” unlike the defendant, who
“is an involuntary participant” and, as a general
rule, “may insist upon being deposed in the district
where he resides.” Id.
argues that, if Defendant had proceeded with Plaintiff's
previously scheduled deposition on May 1, 2018, then there
would have been no problem with a deposition in this
district. However, Plaintiff has since that time graduated
from her degree program and moved to New Mexico. Plaintiff
states that Defendant was informed during a telephone
conversation of Plaintiff's plans to move out of state,
but Defendant disputes that it was so informed and represents
that it searched its phone records and has no record of any
such telephone conversation taking place. Plaintiff offers
that she could be deposed by video conference technology,
which is permitted by Federal Rule of Civil Procedure
seeks to attribute the postponement of the May 1 deposition
date to Plaintiff. Specifically, Defendant asserts that it
postponed the May 1, 2018 deposition due to Plaintiff's
failure to provide medical information release forms because
Defendant wished to review Plaintiff's medical records
before deposing Plaintiff.
other side of this dispute, Plaintiff attempts to classify
the failure to schedule depositions as a mutual matter by
asserting that Defendant has a long and “well
documented” history of refusing to schedule the
deposition of Deb Jenkins. However, Plaintiff provides no
documentation or other evidence on this point, and
Defendant's Exhibit A shows that in multiple e-mail
messages Defendant sought to schedule the Jenkins deposition.
(See, e.g., Mot. Ex. A, 2, 6, 28, ECF No. 41-1).
Further, the Jenkins deposition is not the subject of the
the taking of Plaintiff's deposition by remote means,
Rule 30 states that depositions may occur by remote means
either by stipulation of the parties or by Court order.
Though Plaintiff submits that a deposition by remote means is
a viable option, Defendant objects on the ground that the
deposition will likely involve the examination of many
documents, which is a cumbersome process when a deposition is
taken remotely. However, the distance between New Mexico and
Indiana is substantial, and the Federal Rules provide for the
taking of depositions remotely. See Fed. R. Civ. P.
30(b)(4). As for Defendant's objection, exact copies of
documents can be made and sent in either physical or
chose to bring suit in the Northern District of Indiana, and
her delay in providing medical information release
authorizations at a minimum contributed to (and perhaps was
the sole cause of) the postponement of her deposition until
after her move to New Mexico. Defendant has submitted
evidence that convincingly shows that it tried-even without
knowledge of Plaintiff's impending move out-of-state-to
obtain Plaintiff's relevant medical information and
depose her in a relatively prompt manner. Plaintiff has
submitted no evidence to rebut Defendant's evidence.
There is no cause to go against the general rule and ...