United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
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. 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." 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.
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.
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.
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. 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.
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,
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).
Court has reviewed the parties' positions with respect to
Plaintiff's motion for a protective order and will rule
on the motion herein.
Standards of Law
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
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).
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  [b] [ii]
("[T]he party noticing the deposition usually has the
right to choose the location.")
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
"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).
"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.
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
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"