United States District Court, E.D. Louisiana
LAVON BERTHELOT, ET AL.
ANDREAS FAHL MEDIZINTECHNIK-VERTRIEB GMBH
ORDER AND REASONS
filed a motion pursuant to Federal Rule of Civil Procedure 72
for review of a discovery-related order (Rec. Doc. 30) issued
by Magistrate Judge Knowles. Rec. Doc. 34. Plaintiffs timely
filed an opposition. Rec. Doc. 40. Defendant then sought, and
was granted, leave to file a reply. Rec. Doc. 46. For the
reasons discussed below, IT IS ORDERED that
the motion for review (Rec. Doc. 34) is
DISMISSED and the Magistrate Judge's
order (Rec. Doc. 30) is AFFIRMED.
a products liability and wrongful death action brought by
Plaintiffs, the surviving wife and children of decedent,
against Defendant, who manufactured an allegedly defective
medical device used by decedent. See Rec. Doc. 1.
The case was initially filed in March 2017. See Id.
Plaintiffs reside in Louisiana and Defendant is a German
company. See Id. ¶¶ 1-5. In November 2017,
Plaintiffs moved to compel Defendant's 30(b)(6)
deposition to occur in New Orleans. See Rec. Doc.
14. As part of their motion, Plaintiffs also sought an order
compelling all depositions of Defendant's witnesses to
occur in New Orleans. See Id. The Magistrate Judge
held a hearing on the issue. See Rec. Doc. 28. In a
thorough and reasoned order, he granted in part
Plaintiffs' motion, ordering that the 30(b)(6) deposition
be held in New Orleans. See Rec. Doc.30 at 14.
However, the order also denied as premature Plaintiffs'
request that all depositions of Defendant's witnesses
occur in New Orleans. See id.
“[t]he deposition of a corporation through its agents
or officers is normally taken at the corporation's
principal place of business[, ]” a court “has
broad discretion to determine the appropriate place for a
Rule 30(b)(6) deposition.” See Martin v. Allstate
Ins. Co., 292 F.R.D. 361, 368 (N.D. Tex. 2013). Courts
look for “peculiar circumstances” when deciding
whether the deposition of a corporate representative should
occur somewhere other than the corporation's principal
place of business. See Salter v. Upjohn
Co., 593 F.2d 649, 651-52 (5th Cir. 1979). This analysis
requires consideration of the following factors:
(1) [whether] counsel for both parties are located in the
forum district; (2) [whether] the plaintiff seeks to depose
only one corporate representative; (3) [whether] the
defendant chooses a corporate representative who does not
reside in the location of the principal place of business;
(4) [whether] significant discovery disputes are likely to
arise, which may require resolution by the forum court; and
(5) [whether] the nature of the claim and the parties'
relationship are such that an appropriate adjustment of the
equities favors a deposition site in the forum district.
Martin, 292 F.R.D. at 368 (citing Resolution
Trust Corp. v. Worldwide Ins. Mgmt. Corp., 147 F.R.D.
125, 127 (N.D. Tex. 1992)).
the Magistrate Judge concluded that the 30(b) (6) deposition
should be conducted in New Orleans because: (1) Defendant has
availed itself of the American legal system by securing FDA
approval for sale of its products in the United States; (2)
both parties' counsel are located in New Orleans; (3)
Defendant is a corporation that markets its products around
the world and therefore has sufficient resources to travel to
New Orleans for the deposition; (4) Plaintiffs have agreed to
offset some of the costs of conducting the deposition in New
Orleans; (5) the court may need to intervene during the
deposition because of the parties' ongoing and repeated
discovery disputes; and (6) conducting depositions at the
United States consulate in Germany requires a long period of
advance notice for scheduling and approvals. See Rec.
Doc. 30 at 9-10.
are precisely the considerations that the law requires courts
to consider when deciding whether to compel a foreign
corporate defendant to produce a representative for a
30(b)(6) deposition in the United States. See
Martin, 292 F.R.D. at 368. Legal tests that require a
court to weigh a multitude of factors and balance equities
are discretionary and fact-specific. While Defendant is
correct that some courts have required plaintiffs to conduct
30(b)(6) depositions of foreign corporate defendants in the
companies' home countries, other courts in this Circuit
have reached the opposite conclusion. See, e.g.,
West v. Velo Enter. Co., No. SA-13-CV-024-OLG, 2014
WL 12480008, at *2 (W.D. Tex. June 9, 2004); Advanced
Tech. Incubator, Inc. v. Sharp Corp., No: 2:07-CV-468,
2008 WL 4663568, at *3-4 (E.D. Tex. Oct. 21, 2008);
Mediatek, Inc. v. Sanyo Elec. Co., No. 6:05 CV 323,
2006 WL 5709449, at *2 (E.D. Tex. Aug. 9, 2006). The specific
facts of this case do not leave the Court “with a
definite and firm conviction that a mistake has been
committed” by the magistrate judge. Omega Hosp.,
LLC v. Cmty. Ins. Co., 310 F.R.D. 319, 320 (E.D. La.
the attorneys enrolled in the above-captioned matter are
located in New Orleans. See Mediatek, 2006 WL
5709449, at *2 (reasoning that presence of counsel for both
parties in the city where the deposition is held would
facilitate scheduling). At this time, Defendant has only
named one corporate representative witness. See Rec.
Doc. 34-2 at 16; see also Advanced Tech. Incubator,
2008 WL 4663568, at *4 (fact that only two witnesses would
need to travel for deposition in United States weighed in
favor of holding deposition in United States). The parties
have demonstrated little ability to resolve discovery
disputes on their own, suggesting that judicial intervention
may be required during the corporate deposition. See
Rec. Docs. 14; 16; 47; see also West, 2014 WL
12480008, at *2 (explaining that concern about resolving
discovery disputes weighs in favor of holding deposition in
United States); Mediatek, 2006 WL 5709449, at *2
(same). For example, a second motion to compel production of
discovery will soon be heard before Magistrate Judge Knowles.
See Rec. Doc. 48. Moreover, of the parties,
Defendant is better able to absorb the Plaintiff-subsidized
expense of traveling for a deposition.
not to say that Defendant's arguments are meritless. It
is certainly possible to conduct a competent American-style
deposition in Germany. And the Court does not doubt that
Defendant's corporate representative will suffer some
inconvenience in traveling to New Orleans for the deposition.
But these countervailing facts do not render the order at
issue “clearly erroneous” or “contrary to
law.” Moreover, the order is limited to the location of
the currently contemplated 30(b)(6) deposition and
specifically reserves the question of where any other
depositions should occur in the future. See Rec.
Doc. 30 at 11.
 The magistrate judge also noted that
verbatim stenography would not available if the deposition
was conducted in Germany. See Rec. Doc. 30 at 10. It
appears that this is inaccurate. See Rec. Doc. 43-3.
However, the absence of that fact does ...