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Griggs v. Vanguard Group, Inc.

United States District Court, W.D. Oklahoma

June 20, 2019

JANE B. GRIGGS, as Personal Representative of the Estate of Richard O. Bertschinger, Sr., deceased, Plaintiff,



         Before the Court is Plaintiff's Motion to Compel regarding Rule 30(b)(6) Deposition Notices [Doc. No. 48]. It is at issue. See Resp., Doc. No. 66; Reply, Doc. No. 71. Also before the Court is Defendants' Cross-motion for Protective Order Under [Rule] 26(c) and [Local Rule] 7.1(c) [Doc. No. 67], which is likewise at issue. See Resp., Doc. No. 73.

         After Defendants removed this case from state court to this Court, they requested that Plaintiff's claims against Vanguard Marketing Corp. be compelled to Financial Industry Regulatory Authority (“FINRA”) arbitration and that Plaintiff's claims against Vanguard Group, Inc. be dismissed. Plaintiff then put the “making” of the alleged arbitration agreements at issue, so the Court authorized limited-scope discovery in advance of the determination required by 9 U.S.C. § 4. See Order of Oct. 31, 2018, Doc. No. 27. The only question on which discovery has been authorized in this case is whether Mr. Bertschinger lacked mental capacity to enter into the arbitration clauses at issue-which were executed by Mr. Bertschinger on August 11, 1999 and on September 4, 2001. See Doc. Nos. 10-2, 10-4. The Court also previously found Defendants' knowledge in August 1999 and September 2001 of Mr. Bertschinger's mental capacity to enter into the arbitration clauses at issue to be relevant to the overall issue of mental capacity on which discovery has been authorized. See Order of June 18, 2019, Doc. No. 74. The instant motions address Plaintiff's requested deposition(s) of Defendants' Rule 30(b)(6) designee(s), including the location for the deposition(s) and the topics to be covered during the deposition(s).

         I. Relevant discovery standards

         Federal Rule of Civil Procedure 26(b)(1) applies to both parties' motions, and it provides in relevant part:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         “When requested discovery appears relevant, the party objecting to production has the burden of establishing the lack of relevance by demonstrating that the request falls outside the scope set forth in Rule 26(b)(1), or that the requested discovery is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Shotts v. Geico Gen. Ins. Co., No. CIV-16-1266-R, 2017 WL 4681797, at *1 (W.D. Okla. Oct. 17, 2017) (citation omitted).

         Further, to depose a corporate designee, a party is required to “name as the deponent a public or private corporation [or other entity] and . . . describe with reasonable particularity the matters for examination.” Fed.R.Civ.P. 30(b)(6). The rule's reasonable-particularity requirement contrasts with requirements for other deposition notices which require only “reasonable written notice” of the deposition. Compare id., with Id. Rule 30(b)(1).

         Rule 30(b)(6) imposes reciprocal obligations on the parties. The party seeking the deposition must identify topics for inquiry with reasonable particularity. “Without the required specificity in the topics noticed for examination, the deponent may be unable to fulfill its duty to produce designated and properly prepared representatives.” Singh v. Shonrock, No. 15-9369-JWL-GEB, 2017 WL 698472, at *2 (D. Kan. Feb. 22, 2017). In turn, the deponent-entity must “make a conscientious, good-faith endeavor to designate the persons having knowledge of the matters sought and to prepare those persons in order that they can answer fully, completely, and in a non-evasive manner, the questions as to the relevant subject matters.” Id. (footnote, quotation marks, and citation omitted).

         Finally, Rule 26(c)(1) requires both that a moving party show “good cause” for the issuance of a protective order and that the basis for the protective order be “protect[ion] . . . [of the individual to be deposed] from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). “The good cause standard of Rule 26(c) is highly flexible, having been designed to accommodate all relevant interests as they arise.” Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008) (quotation marks and citations omitted).

         II. Discussion and analysis

         The issues in the immediate motions largely overlap those addressed in Plaintiff's prior motion to compel, which the Court ruled on in its Order of June 18, 2019 [Doc. No. 74]. Familiarity with that order and the rulings therein is assumed.

         A. Location of the deposition(s) of Defendants' Rule 30(b)(6) designee(s)

         Plaintiff noticed the Rule 30(b)(6) deposition(s) of Defendants' corporate designee(s) for Oklahoma City. Defendants object, stating that the deposition(s) should take place in Malvern, Pennsylvania-the site of Defendants' principal places of business. If the deposition(s) occur(s) in Oklahoma City, the deponent(s) will have to travel to Oklahoma, and both local counsel for Defendants and counsel for Plaintiff (both of whom are based in Tulsa) will have to travel a short way to Oklahoma City. If the deposition(s) occur(s) in Malvern, Plaintiff's counsel will have to travel to Pennsylvania, and Defendants' national counsel (who is based in Philadelphia, approximately 30 miles from Malvern) will have to travel a short way to Malven. Of course, Defendants may choose to have counsel other than the most conveniently located participate in the deposition(s) and Plaintiff may choose to attend the deposition(s) of Defendants' Rule 30(b)(6) designee(s), but neither is required for the deposition(s) to proceed.[1]

         A Rule 30(b)(6) deposition generally is conducted in the judicial district of a defendant corporation's principal place of business absent an agreement of the parties or justice requiring otherwise. See Thomas v. Int'l Bus. Machs., 48 F.3d 478, 483 (10th Cir. 1995) (“[T]he deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business.” (quotation marks and citation omitted)); Mitchusson v. Sheridan Prod. Co., LLC, No. CIV-10-1362-M, 2010 WL 5462585, at *1 (W.D. Okla. Dec. 29, 2010). Plaintiff relies on certain factors to meet her burden of overcoming this deposition-location presumption. See Pinnacle Packaging Co. v. Constantia Flexibles GmbH, No. 12-CV-537-JED-TLW, 2015 WL 9216845, at *5 (N.D. Okla. Dec. 17, 2015) (describing the burden to overcome the location presumption for a Rule 30(b)(6) deposition). As summarized by the U.S. District Court for the Northern District of Oklahoma:

Any number of factors may overcome the general rule and persuade a court to permit the deposition of a corporate agent or officer to be taken at some place other than the corporation's principal place of business. These factors include the location of counsel, the number of corporate representatives sought to be deposed, the burden on the corporation if its agents are required to travel, travel expenses of the deponents and counsel, the likelihood of significant disputes requiring resolution by the forum court, the defendant's contacts with the forum of the deposition, whether the persons sought to be deposed often engage in travel for business purposes, and the general equities of the given factual setting.

Kelly v. Mercedes-Benz USA, Inc., No. 99-CV-476-H(J), 2015 WL 3796045, at *1 (N.D. Okla. Mar. 8, 2015).[2]

         Here, the location of counsel favors conducting the deposition(s) in Malvern, as Defendants' national counsel is based approximately 30 miles from that location, while no counsel is based so close to Oklahoma City. A consideration of travel expenses also favors Malvern, as Plaintiff's counsel (a lengthy distance) and Defendants' counsel (a short distance) will be forced to travel if the location is there, but the deponent(s) will not have to travel. On the other hand, Plaintiff's counsel (a short distance), Defendants' counsel (a short distance), and the deponent(s) (a lengthy distance) will be forced to travel if the location is in Oklahoma City. And whether the deponents often travel favors the Malvern deposition(s) as well, as Defendants have indicated that none of the potential deponents travel to Oklahoma City for business purposes on a regular basis. See Pinnacle Packaging Co., 2015 WL 9216845, at *8 (indicating that this factor refers to “whether the deponents travel to the proposed location of the depositions, rather than a general determination of whether the deponents travel for business generally”).

         Defendants' contacts with the forum also favor the Malvern deposition(s). Plaintiff has not indicated any significant contacts between Defendants and Oklahoma other than the relationship that existed between Defendants and Mr. Bertschinger. For example, Plaintiff has provided no indication that Defendants have a significant number of employees or physical offices in Oklahoma.

         The number of corporate representatives favors conducting the deposition(s) in Oklahoma City, as Defendants have not indicated that they will designate more than one deponent (and the Court will not assume they will do so). The lack of an unusual burden on Defendants favors Oklahoma City, as Defendants have not indicated any circumstances making the travel of their deponents unusually difficult. See Chris-Craft Indus. Prods., Inc. v. Kuraray Co., Ltd., 184 F.R.D. 605, 607-08 (N.D. Ill. 1999) (indicating that a burden on the business was shown when deponents were located in Japan and were involved in meeting upcoming deadlines imposed by the end of the company's fiscal year, and that ...

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