United States District Court, E.D. Michigan, Southern Division
F. Cox, District Judge
OPINION AND ORDER
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE
court is the forum for addressing some of the most compelling
issues of the day, including civil rights, voting rights, the
First Amendment free speech and religion clauses, federalism,
and criminal justice. And the federal judiciary deals with
many important and complex procedural questions as
well-jurisdiction, standing, preemption, attorney-client
privilege, and the scope of e-discovery, just to name a few.
the Court is asked to resolve a disagreement as to where the
deposition of the Defendant's corporate representative
will be held: at Plaintiff's counsel's office, which
is about 27 miles from the witness' place of business, or
at defense counsel's office, which is about 12 miles from
his place of business. In other words, the Court must decide
whether the deponent will or will not have to drive an
additional 15 miles to attend his deposition. To address this
important dispute, the Defendant filed a motion for
protective order, with nine pages of exhibits [ECF No.10],
the Plaintiff filed an 18-page response with 14 pages of
exhibits [ECF No.12], and the Defendant filed a five-page
reply brief [ECF No.14].
the kind of issue that should be resolved by the lawyers
without judicial intervention. In fact, this the type of
disagreement that most third-graders know how to work out.
Indeed, I considered imposing a third-grade solution, like
the Middle District of Florida did in Avista v. Wausau
Underwriters Insurance Co., 2006 WL 1562246 (M.D. Fla.
2006), where the parties could not agree on the location of a
Rule 30(b)(6) deposition. The Court ordered counsel to play a
game of “rock, paper, scissors, ” with the winner
entitled to select the site for the deposition. Or as the
Eastern District of New York did in Arizonis v. Suffolk
Bus Corp., 2014 WL 1379639 (E.D.N.Y. 2014), when the
parties could not agree on which witnesses would be deposed
first. The judge in Arizonis directed the parties to
decide the dispute by a coin toss, with Plaintiff's
counsel tossing “a standard United States quarter,
” and the Defendant's counsel calling heads or
tails. The judge optimistically observed that “this
procedure will demonstrate to counsel that-in lieu of costly
motion practice-matters can be resolved with an investment of
twenty-five cents.” Id. at *1.
tempting as it may be to employ some version of a
decide-by-chance game,  I have been called upon to exercise my
discretion based on a critical examination of the
parties' positions, and I will do so, hoping to add a
dollop of common sense to the mix.
initial motion, Defendant acknowledges that Fed.R.Civ.P.
26(c) “grants trial courts the discretion to limit the
time, place and manner of discovery..., ” ECF No. 10,
PageID39, and argues that the burden of not granting the
requested protective order weighs more heavily on Defendant
(or more precisely the Defendant's corporate
representative) than on Plaintiff. Plaintiff's counsel,
on the other hand, contends that her office is the more
appropriate site for the deposition because she has resources
available there that would facilitate a more efficient
deposition, such as her servers, staff, and case files.
not talking about a substantial burden in either case, but on
balance, the burden on Plaintiff of a less efficient
deposition outweighs the burden on the deponent of his lawyer
of driving an extra fifteen miles. In Cardinal Aluminum
Co. v. Continental Casualty Co., 2015 WL 4068405 (W.D.
Ky. 2015), the Court found that requiring the defendant's
corporate representative to drive 115 miles for his Rule
30(b)(6) deposition was not unduly burdensome or expensive.
Moreover, any burden on the deponent in this case will be
lessened by requiring the Plaintiff to pay his mileage.
Plaintiff also cites cases for the proposition that
“[t]he location of a deposition is initially selected
by the party noticing the deposition.”
Plaintiff's Response, ECF No. 12, PageID66,
citing Broooks v. Charter Twp. of Clinton, 2014 WL
1304624 (E.D. Mich. 2014). Defendant, on the other hand,
cites cases describing a “general rule” that
under Rule 30(b)(6), corporate representatives should
ordinarily be deposed at the corporation's principal
place of business. Defendant's Reply, ECF No.
14, PageID90-91, citing M & C Corp. v. Erwin Behr
GmbH & Co., KG, 165 F.R.D. 65, 67 (E.D. Mich. 1996).
M & C Corp. also holds that “[t]his rule
is not, however, without exception and this court has the
discretion to determine whether the requested protective
relief is warranted.”
case, neither party proposes that the Rule 30(b)(6) witness
be deposed at his place of business; rather, the question is
whose law office will host the deposition, and whether the
witness will drive 12 miles or 27 miles. The “general
rule” that a corporate representative be deposed at his
or her place of business is therefore not pertinent.
Ultimately, the question in this motion for protective order
is whether the Defendant has met its burden under Rule 26(c)
of showing that its corporate witness is unduly burdened by
driving an extra 15 miles. I find that it has not, and, in
the exercise of my discretion will order that the deposition
take place at the office of Plaintiff's counsel in Troy,
Michigan. Plaintiff will, of course, pay the deponent the
standard mileage rate.
discovery closed on September 10, 2019, I will extend
discovery to October 1, 2019, solely for the purpose of
taking the Rule 30(b)(6) deposition. No. other dates in the
Court's scheduling order [ECF No. 6] are affected by this
Order. I trust that counsel will be able to arrange a
mutually agreeable date for the deposition without further
involvement by the Court.
brings me back to my initial point that these issues should
be able to be resolved between attorneys. I assume that the
parties are paying their counsel for slugging it out in court
over simple scheduling issues that most lawyers should and do
work out on their own. I understand that there might be a
more serious issue if the disputed depositions sites are
thousands of miles apart, or if the witness is overseas.
See Recaro North America, Inc. v. Holmbergs Childsafety
Co. Inc., 2011 WL 5864727 (ED Mich. 2011). But
litigation is expensive enough without making the parties
finance a dispute over 15 miles. To ensure that the parties
in this case are aware of what they are paying for, counsel
will mail a copy of this Opinion and Order to their
IT IS ORDERED that Defendant's motion for protective
order [ECF No. 10] is DENIED, with ...