United States District Court, E.D. Louisiana
JOHANNES MARKUS SIEBER ET AL.
DELTA AIR LINES, INC. ET AL.
ORDER AND REASONS ON MOTIONS
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
breach of contract and 42 U.S.C. § 1983 action that
arises from an incident aboard a Delta Air Lines, Inc.
("Delta") flight before its departure from Louis
Armstrong New Orleans International Airport. Record Doc. No.
80. Defendant Delta's Motion to Compel Plaintiffs'
Depositions, Record Doc. No. 84, is before me. Delta seeks to
compel plaintiffs Johannes Markus Sieber and Mina Margareta
Sieber Schneiter to appear for in-person depositions in New
Orleans, Louisiana, after plaintiffs refused to appear in New
Orleans based on Schneiter's medical condition. Delta
further requests that the court issue an order compelling
Schneiter to produce to defendants certified medical records
from the past five years reflecting Schneiter's alleged
condition; an affidavit from Schneiter's treating
physicians regarding the diagnosis of her alleged condition;
copies of the medical degrees and licenses of Schneiter's
treating physicians; and a list of every flight Schneiter has
taken between the date of the subject incident and the
present. Id. Plaintiffs filed a timely opposition
memorandum. Record Doc. No. 92. Defendant was permitted to
file a reply brief. Record Doc. No. 99.
closely related Motion for Protective Order is also before
me. Record Doc. No. 104. Plaintiffs seek a protective order
to prevent Delta from setting plaintiffs' in-person
depositions in New Orleans. Id. Delta filed a timely
opposition memorandum. Record Doc. No. 108.
considered all of the submitted materials, the record and the
applicable law, IT IS ORDERED that defendant's motion is
DENIED, and plaintiffs' motion is GRANTED both subject to
the order contained herein.
is a rebuttable presumption that a plaintiff may be deposed
in the judicial district where the action was brought.
Frederick v. Intercontinental Hotels Grp. Res.,
Inc., 2010 WL 11541901, at *3 (E.D. La. July 9, 2010)
(citing In re Outsidewall Tire Litig., 2010 WL
1849035, at *3 (E.D. Va. May 4, 2010); 8A Charles Alan
Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure § 2112 (West 2010)). To overcome
the presumption, "a foreign plaintiff must persuasively
demonstrate that requiring him to travel to the forum
district for his deposition would, for physical or financial
reasons, be practically impossible, or that it would be
otherwise fundamentally unfair." In re Outsidewall
Tire Litig., 2010 WL 1849035, at *3.
may order that a deposition be taken by telephone or other
remote means. Fed.R.Civ.P. 30(b)(4). "For purposes of
this rule . . ., the deposition takes place where the
deponent answers the questions." Id. However,
"absent a specific showing of hardship tied to an
individual's circumstances" an order requiring that
the deposition of an out-of-town plaintiff be taken remotely
is not warranted. Birkland v. Courtyards Guest
House, 2011 WL 4738649, at *2 (E.D. La. Oct. 7, 2011).
In determining whether hardship sufficient to require
deposition by remote electronic means exists, courts consider
the party's (1) age; (2) physical condition; (3)
finances; and (4) other factors that might result in extreme
hardship. Id. at *3.
Sieber submitted an affidavit with his opposition memorandum
attesting that he - a physician specializing in internal
medicine - and his wife Schneiter are both 76 years old,
reside in Switzerland, and that Schneiter has been medically
diagnosed with cardiac arrhythmia by her treating physician.
Record Doc. No. 92-4. As a physician familiar with cardiac
conditions, and as a husband with personal knowledge of the
effects of this condition on his wife, Sieber persuasively
avers that cardiac arrhythmia is exacerbated by anxiety,
stress and fatigue, all of which "would compound the
risk level for sudden death in an individual such as my
wife," if his wife were to undertake a transAtlantic
flight to New Orleans for a deposition. Id. at
¶¶ 5-8. Sieber attests that it is not advisable for
him to leave his wife for an extended period of time because
he is his wife's primary caretaker. Id. at
Dr. Sieber's sworn declaration both persuasive and
authoritative and that the additional medical discovery
sought by defendant in its motion is unnecessary, bordering
on harassment. I further find that the totality of these
factors overcomes the presumption that plaintiffs must be
deposed in the judicial district where the action was
brought, as requested by defendant. The record indicates that
the events giving rise to this lawsuit occurred while
plaintiffs were briefly visiting New Orleans as tourists. The
incident upon which the lawsuit was based occurred in this
district. Plaintiffs have no apparent connection to this
district, other than the incident sued upon. Some of the
principal defendants are located here. The moving defendant
conducts substantial business activities internationally,
more elsewhere rather than here. It appears that legal venue
concerns rather than any significant connection to or forum
preference by plaintiffs for this district are the principal
reasons for this lawsuit's situs here. Record Doc. No. 80
at pp. 8-9. Plaintiffs' scant and transitory connection
to this district, coupled with their advanced age, residence
in Switzerland, Schneiter's heart condition and
Sieber's status as primary caretaker of his wife are more
than sufficient to establish substantial hardship in
requiring either or both plaintiffs to travel to New Orleans
for in-person depositions. Considering the totality of the
circumstances, Delta's request that plaintiffs be
compelled to travel across the Atlantic Ocean for their
discovery depositions - when both the applicable Rule and
reasonableness provide a more prudent and practical means of
conducting this pretrial discovery - is denied.
states in his affidavit, and plaintiffs reiterate in their
motion papers, Record Doc. No. 104-7 at p. 14, that they are
willing to participate in either video conference depositions
or in-person depositions (if defense counsel wish to be
physically present with plaintiffs while deposing them)
within a reasonable ground transportation distance from their
home in Switzerland. Record Doc. No. 92-4. Plaintiffs have
indicated their specific willingness to travel by train to
Germany for in-person depositions. Record Doc. No. 104-7 at
p. 14. Based on the procedural and legal constraints posed by
taking depositions for a United States lawsuit in a foreign
country, defendant has delineated one potential method of
deposing plaintiffs at the United States consulate in
Frankfurt, Germany, and another method whereby
plaintiffs' depositions would be taken in a German court.
Record Doc. No. 108 at pp. 5-8.
IT IS ORDERED that plaintiffs' motion is granted in that
no later than May 22, 2019, counsel must confer in person or
by telephone and in good faith and arrive upon a mutually
convenient date, time and location within a reasonable
distance from plaintiffs' residence when plaintiffs will
be deposed either in person or via video conference,
Fed.R.Civ.P. 30(b)(4), in compliance with the relevant laws
of the nation in which plaintiffs will be deposed. The
depositions must be scheduled as soon as practicable, and no
later than June 3, 2019, counsel must provide me with a
letter, which I will file in the record, memorializing the
arrangements they have made. Trial is not scheduled to
commence in this case until December 9, 2019, so that the
existing schedule should accommodate any logistical
difficulties the parties might encounter. However, if the
date on which the depositions are scheduled necessitates a
continuance of existing scheduling order deadlines in this
matter, an appropriate motion may be filed. Logistical
arrangements for the depositions must be jointly made by
counsel and all costs split 50/50 between defendants and
plaintiffs. Counsel must send me a letter no later ...