Wang v. Omni Hotels Management Corp.

          RULING ON PLAINTIFF'S MOTION FOR PROTECTIVE ORDER [Doc. 20]

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In this personal injury action, removed from Connecticut state court, Plaintiff Hui Wang sues defendant Omni Hotels Management (herein "Defendant" or "Omni") for damages arising from a slip and fall she allegedly suffered on September 25, 2018, in the lobby of the Omni New Haven Hotel at Yale ("Omni Hotel"). On that date, Plaintiff, who is a citizen of China, domiciled in Beijing, was visiting New Haven, Connecticut, to participate in the Sequoia-Yale EMBA leadership program at Yale.^[1] Doc. 1 ("Notice of Removal"), at 4, ¶ B.8.; Doc. 1-1 ("Complaint"), ¶¶ 1-3. Plaintiff alleges that at approximately 7:40 p.m., while walking into the front entrance of the Omni Hotel, she "was caused to slip and fall on water that had accumulated on the floor," which caused her to land with "great force and violence," resulting in "severe injuries, damages and losses."^[2] Doc. 1-1, ¶¶ 2-3. As a result of her injuries, Plaintiff alleges that she "was forced to undergo extensive medical care and treatment, and she may require additional medical care and treatment in the future." Id., ¶ 9.

         Plaintiff represents that immediately following the fall, she "was taken by ambulance to Yale-New Haven Hospital where she was diagnosed with a mid-shaft tibial plateau fracture of her left leg and was required to undergo surgery," including an "intramedullary nailing of tibial diaphyseal fracture of the left leg." Doc. 20-1, at 2. After her discharge from the hospital, she returned home to China and continued to be treated there for her injuries. Id.

         Plaintiff initiated her negligence action against Omni in the Connecticut Superior Court for the Judicial District of New Haven on or about November 20, 2018. Hui Wang v. Omni Hotel Mgmt. Corp., No. NNH-CV19-6086968-S (Conn. Super. Ct. Nov. 20, 2018). On December 6, 2018, pursuant to the federal removal statutes, 28 U.S.C. §§ 1441 and 1446, Omni removed the case to this federal court within thirty days of service of the summons and Complaint upon it, on the basis of diversity of citizenship. See 28 U.S.C. § 1332(a)(2) and n.2, supra. On that date, Omni also filed its Answer [Doc. 9] "denying all liability as a warning of the alleged dangerous condition had been placed in the lobby in the immediate vicinity of the front door entrance." Doc. 21 (Omni's Memorandum), at 1, Doc. 21-1 (photograph of lobby), at 1.

         Following the parties' joint Rule 26(f) Conference, discovery commenced in the action. On March 11, 2019, Omni served a "Notice of Deposition" [Doc. 20-2, 21-1] to conduct the videotaped deposition of Plaintiff at her counsel's office in Cheshire, Connecticut, on June 5, 2019.^[3] In that Notice, Defendant also "request[ed] that Ms. Wang produce the entirety of her file, including all the notes, memoranda, letters or other documents in her possession or control, pertaining to this matter, at her deposition." Doc. 20-2, at 2.

         Pending before the Court at this time is Plaintiff's "Motion for a Protective Order" in which she seeks protection from the Court with respect to the location of her deposition. Doc. 20, at 1. In her motion, Plaintiff objects to having her deposition taken "at [her] counsel's office because she is a resident of Beijing, and it would be a hardship for her to travel to Cheshire, Connecticut for her deposition." Doc. 20, at 1. She states that her counsel has "proposed that counsel for the defendant take [her] videotape-video conference deposition in Hong Kong, but counsel for the [D]efendant is insisting that [she] travel to Cheshire, Connecticut for her deposition." Id. Plaintiff's counsel represents that the parties conferred in good faith during a Rule 37 conference on March 26, 2019, but they were "unable to resolve their differences" with respect to the location of Plaintiff's deposition. Doc. 20-1, at 1; Doc. 20-3, ¶¶ 2-4.

         Defendant Omni has objected to the Plaintiff's motion. Doc. 21. In the words of Omni's counsel, Plaintiff now moves for an order "demanding Omni be limited to conducting Plaintiff's deposition in a manner that is satisfactory to Plaintiff, to wit, either telephonically, video conference, or in-person in Hong Kong." Id., at 2. Omni argues that Plaintiff initiated this action and "now asks this Court to prejudice Omni in the defense of this case by either requiring Omni to incur the expense of traveling to Hong Kong to take Plaintiff's deposition, or to conduct her deposition in a manner Omni finds inadequate, inefficacious, and contrary to its right to depose Plaintiff in the manner best suited to confront, vet, and defend itself against her claims." Id., at 3. Plaintiff has filed no reply to Defendant's response, and the prescribed fourteen-day period to do so has ended. D. Conn. L. Civ. R. 7(d).

         The Court has reviewed the parties' positions with respect to Plaintiff's motion for a protective order and will rule on the motion herein.

         II. DISCUSSION

         A. Standards of Law

         A party in need of the court's protection from unduly burdensome discovery may make a motion under Rule 26 of the Federal Rules of Civil Procedure. That Rule provides, in pertinent part:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending - or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. . . . 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 one or more of the following: . . .

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery . . . .

Fed. R. Civ. P. 26(c)(1)(B).

         With respect to the location of a deposition, as a general rule, "the party who notices a deposition is entitled to choose its location." Brockway v. Veterans Admin. Healthcare Sys., No. 3:10-CV-719, 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011) (citing Aztec Energy Partners, Inc. v. Sensor Switch, Inc., No. 3:07-CV-775 (AHN), 2008 WL 747660, at *2 (D.Conn. Mar.17, 2008)). See also Buzzeo v. Bd. of Educ., Hempstead, 178 F.R.D. 390, 392 (E.D.N.Y. 1998) (the party that notices the deposition "usually has the right to choose the location"); Fed.R.Civ.P. 30(b)(1) (specifying that the party who wants to depose a person must state in the notice of deposition "the time and place"). See also generally 7 Moore's Federal Practice, § 30.20 [1] [b] [ii] ("[T]he party noticing the deposition usually has the right to choose the location.")

         In addition, "[t]here is a general presumption that a plaintiff who chooses a particular forum should be prepared to be deposed in that forum." Connell v. City of New York, 230 F.Supp.2d 432, 436 (S.D.N.Y. 2002) (citation omitted). See also Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989) ("[A] plaintiff must generally submit to deposition in the district where he has commenced litigation," whereas "a defendant is usually entitled to insist that his deposition take place where he resides."); Clem v. Allied Van Lines Int'l Corp., 102 F.R.D. 938, 939 (S.D.N.Y.1984) ("In addressing motions for protective orders pursuant to Rule 26(c), this Court has long enunciated the policy of requiring a non-resident plaintiff who chooses this district as his forum to appear for deposition in this forum absent compelling circumstances.") (collecting cases).

         Furthermore, "it is the plaintiff who is generally required to 'bear any reasonable burdens of inconvenience that the action presents.'" Morin v. Nationwide Fed. Credit Union, 229 F.R.D. 362, 363 (D. Conn.2005) (quoting Fed. Deposit Ins. Co. v. La Antillana, S.A., No. 88-CV-2670 (JFK), 1990 WL 155727, at *1 (S.D.N.Y. Oct. 5, 1990)). See also Gulf Union Ins. Co. v. M/V Lacerta, No. 91 Civ. 2814 (PKL), 1992 WL 51532, at * 5 (S.D.N.Y. March 9, 1992) (same). "Underlying this rule appears to be the concept that it is the plaintiffs who bring the lawsuit and who exercise the first choice as to the forum." Buzzeo, 178 F.R.D. at 392. "The defendants, on the other hand, are not before the court by choice." Id. See also Media Group, Inc. v. In-finn-ity Productions, Inc., No. 3:99-CV-1014 (PCD), 2000 WL 303221, at *1 (D. Conn. Feb.1, 2000) (same).

         Nonetheless, "there is no absolute rule as to the location of the deposition of a nonresident plaintiff as courts must strive to achieve a balance between claims of prejudice and those of hardship." Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y. 2011) (quoting Normande v. Grippo, No. 01 Civ. 7441(JSR)(THK), 2002 WL 59427, at *1-2 (S.D.N.Y. Jan. 16, 2002)) (internal quotation marks omitted). Although "a defendant is entitled to examine a plaintiff in the forum where [the] plaintiff has chosen to sue," if "special circumstances are shown, such as hardship or burden to the plaintiff, which outweigh any prejudice to the defendant, the general rule may yield to the exigencies of the particular case." Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591, 592 (S.D.N.Y. 1994) (quoting Seuthe v. Renwal Prods., Inc., 38 F.R.D. 323, 324 (S.D.N.Y.1965)). The Court must exercise its discretion to carefully weigh the relevant facts because "there is no hard and fast rule." Seuthe, 38 F.R.D. at 324.

         Courts within this Circuit have permitted the depositions of certain plaintiffs to be held elsewhere or by telephone "where the plaintiff is physically or financially unable to come to the forum." Estate of Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y. 2011) (collecting cases). See, e.g., Zito v. Leasecomm Corp., 233 F.R.D. 395, 398 (S.D.N.Y.2006) (permitting certain plaintiffs to have their depositions taken by telephone or videoconference where claims were of "modest monetary value" and it would be a hardship for them to travel to distant cities; and allowing defendants to conduct these examinations by video-conference if they bore the expense and made arrangements for the plaintiffs to appear within 50 miles of their residences); Abdullah, 154 F.R.D. at 592-94 (requiring defendants to travel to London to depose indigent plaintiff, who resided in that city, because he had "no genuine choice of forum; defendants [were] located in the United States," and he would not be allowed to return to the United Kingdom to pursue his asylum application if he traveled to the United States).

         "A motion for a protective order not to have a deposition at a particular site, or to compel deposition in a particular location, is considered by reviewing three factors of the cost, convenience, and litigation efficiency of the designated location." Brockway v. Veterans Admin. Healthcare Sys., No. 3:10-CV-719, 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011) (quoting Sloniger v. Deja, No. 09-CV-858S, 2010 WL 5343184, at *5 (W.D.N.Y. Dec. 20, 2010)). See also GEOMC Co. v. Calmare Therapeutics, Inc., No. 3:14-CV-01222 (VAB), 2017 WL 2294282, at *2 (D. Conn. May 25, 2017) (citing and quoting Brockway, 22011 WL 1459592, at *8); Buzzeo, 178 F.R.D. at 393 ("The court finds that the general 'good cause' standard of Rule 26(c) of the Federal Rules of Civil Procedure - as shown through an analysis of cost, convenience and litigation efficiency - is the appropriate standard under which to evaluate the motion" ...