United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is a motion to compel filed on December 6, 2018, by
Plaintiff United States Securities and Exchange Commission
(the “SEC”), seeking to compel pro se
DefendantMichael A. Skerry (“Skerry”), a
citizen and resident of Canada, to respond to discovery
requests and appear at a deposition in Seattle, Washington.
(DE 27). Skerry has not responded to the motion, and his time
to do so has passed. N.D. Ind. L.R. 7-1(d)(2)(A). For the
following reasons, the SEC's motion to compel will be
granted in part.
September 28, 2017, the SEC filed the complaint in this
action, alleging that Skerry carried out a fraudulent
investment scheme related to the stock of Success Holding
Group International, Inc. (DE 1).
April 4, 2018, the parties submitted their Federal Rule of
Civil Procedure 26(f) planning report to the Court. (DE 10; DE
11). On April 11, 2018, this Court conducted a scheduling
conference at which Skerry and counsel for the SEC appeared
telephonically. (DE 13). The Court approved and adopted the
discovery related deadlines in the parties' planning
report (DE 13), and later, extended the deadline to complete
all discovery to March 14, 2019 (DE 30; DE 31).
August 9, 2018, the SEC sent Skerry requests for production
of documents and requests for interrogatories. (DE 20; DE
21). Skerry's responses were due 30 days from service of
the discovery requests (approximately mid-September 2018).
(DE 28 at 2-3); see generally Fed. R. Civ. P. 33,
34. The SEC also sent Skerry an email explaining that he
could upload his responses to the SEC's discovery
requests via a link to a shared folder, and requesting dates
that Skerry would be available for deposition in Seattle,
Washington. (DE 28-1). On October 12, 2018, Skerry replied
that he had finished responding to the SEC's discovery
requests but that he could not upload the responses to the
shared folder due to difficulty with the link the SEC
provided. (DE 28-2; see generally DE 28-1). On
November 1, 2018, having not received any updates from
Skerry, counsel for the SEC reminded him that his discovery
responses were overdue. (DE 28-3). To date, Skerry has not
responded to the SEC's discovery requests or explained
his failure to do so. (See DE 28-6).
also refused the SEC's offer to conduct the deposition in
Seattle by claiming that it would cause him
“hardship.” (DE 28-2). It is worth noting that
Seattle is significantly closer to Skerry, who resides in
British Columbia, Canada, than to the SEC, in Chicago,
Illinois. (See, e.g., DE 28-5).
November 16, 2018, the SEC noticed Skerry for a deposition to
take place on December 4, 2018, in Seattle, Washington. (DE
23; DE 28 at 4). On November 19, 2018, Skerry emailed counsel
for the SEC, refusing to appear at the deposition, citing
concerns that he would be considered “an undesirable
person and either detained or refuse[d] entry in[to] the
USA.” (DE 28-4). Skerry requested that the deposition
take place via video conference, but the SEC insisted that
the deposition take place in person. (DE 28-5).
November 27, 2018, counsel for the SEC asked Skerry to
confirm whether he would appear at the December 4, 2018,
deposition. (DE 28-6). Later that day, Skerry informed
counsel for the SEC that he would not appear at the
deposition on the instructions of his “lawyers”
who were concerned that he would be detained crossing into
the United States, aggravating his unidentified
“serious health issues.” (DE 28-7).
December 6, 2018, the SEC filed the instant motion to compel,
requesting that the Court enter an order: (1) setting a date
by which Skerry must respond to the SEC's discovery
requests; (2) requiring Skerry to appear for deposition in
Seattle, Washington; and (3) advising Skerry that his failure
to comply with the order will result in an entry of default
judgment against him. (DE 28 at 10).
Federal Rule 37, a party is permitted to file a motion to
compel discovery where another party fails to respond to
interrogatories or requests for production of documents.
See Redmond v. Leatherwood, No. 06-C-1242, 2009 WL
212974, at *1 (E.D. Wis. Jan. 29, 2009). Together with the
motion to compel, a party must file “a separate
certification that the party has conferred in good faith or
attempted to confer with the other affected parties in an
effort to resolve the matter raised in the motion without
court action.” N.D. Ind. L.R. 37-1(a); see
Fed. R. Civ. P. 37(a)(1). “A motion to compel discovery
pursuant to Rule 37(a) is addressed to the sound discretion
of the trial court.” Redmond, 2009 WL 212974,
at *1 (citation omitted).
the parties dispute the location, number, or date of a
deposition, “the court ‘may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including . . . specifying terms, including time and place,
for the disclosure of discovery.'” Schoenherr
v. Smith, No. 12-CV-14276, 2013 WL 2239304, at *2 (E.D.
Mich. May 21, 2013) (alteration in original) (quoting
Fed.R.Civ.P. 26(c)(1)(B)). While the party noticing the
deposition may pick the location, the district where the
action is pending is generally the proper location for the
deposition of a party. United States v. Real Prop.
Located at 700 N. 14th St., Springfield, Ill., No.
12-CV-3052, 2013 WL 5595952, at *2 (C.D. Ill. Oct. 11, 2013)
(citation omitted). Courts disfavor remote depositions and
generally allow them only if the deposed party shows that it
would suffer “undue hardship” in attending the
deposition. Id. (citation omitted). Simply stated,
“Rule 26(c) confers broad discretion on the trial court
to decide when a protective order is appropriate and what
degree of protection is required.” Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36 (1984); see
Wounded Warrior Project, Inc. v. Help Ind. Vets, Inc.,
No. 1:14-CV-75-PPS-CAN, 2014 WL 12538947, at *1 (N.D. Ind.
May 23, 2014).