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United States District Court, N.D. Illinois, Eastern Division

September 23, 2004.

CHRISTIA CONFEZIONI S.p.A., an Italian corporation and FBLG, INC., Defendants.

The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge


Plaintiff P.H. International Trading Co. d/b/a Hana K Fashions ("Hana K") sued defendant Christia Confezioni S.p.A. ("Christia"), an Italian corporation, in state court for a variety of state law claims including, among other claims, breach of contract, constructive fraud, fraud, promissory estoppel, and civil conspiracy. Christia removed the case to federal court and filed a motion to dismiss, challenging personal jurisdiction, venue, and asserting the doctrine of forum non conveniens. In support of its jurisdictional challenge, Christia submitted the declaration of Francesco Sorio, "an authorized representative of Christia," regarding Christia's contacts with Illinois. (Pl.'s Mot. Compel, Ex. A.) The district court subsequently extended briefing on the motion to dismiss to allow the parties to take discovery on the jurisdiction issue. This matter is now before the court on Plaintiff's Motion to Compel, in which Hana K asks the court to compel (1) the deposition of Mr. Sorio and (2) the production of documents responsive to certain document requests. During the course of briefing the motion to compel, the parties represented that they are close to resolving the dispute regarding the document requests. Accordingly, this order addresses the motion to compel only as it relates to the deposition of Mr. Sorio. For the reasons explained below, the court grants plaintiff's motion to compel in part.


  Christia opposes presenting Mr. Sorio for deposition on two grounds. First, Christia contends that Sorio's deposition is unnecessary for resolution of the motion to dismiss. The court disagrees. Christia presented an affidavit from Mr. Sorio in support of its motion to dismiss. Unless Christia intends to withdraw Mr. Sorio's affidavit, which is unlikely, Hana K is entitled to depose him regarding the substance of his declaration. Alternatively, Christia's suggests that if additional testimony is necessary, Hana K should take Mr. Sorio's deposition on written interrogatories. The court rejects that suggestion. Although a deposition on written interrogatories is appropriate in certain limited circumstances, the court finds it is not an adequate substitute for an oral deposition in this case. Mill-Run Tours, Inc., 124 F.R.D. 547, 549-550 (S.D.N.Y. 1989) (denying foreign defendants' request to take depositions by written questions). Christia has failed to persuade the court that presenting Mr. Sorio for deposition would create a substantial hardship for Mr. Sorio or Christia. Id. at 549. Moreover, proceeding on written interrogatories denies plaintiff's counsel the opportunity to ask follow-up questions, observe the witness's demeanor, or evaluate his credibility. Id. Additionally, taking the deposition by written questions provides "an opportunity for counsel to assist the witness in providing answers so carefully tailored that they are likely to generate additional discovery disputes." Id.

  Given the court's finding that Hana K is entitled to depose Mr. Sorio, the next issue is where the deposition should take place. Christia argues that the deposition should take place in Italy, whereas Hana K contends the deposition should take place in Chicago. In support of its position, Christia contends that "[t]he case law is clear that `[i]n the absence of exceptional or unusual circumstances, when a deponent resides a substantial distance from the deposing party's residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party.'" (Def.'s Resp. at 5, quoting Gen. Leasing Co. v. Lawrence Photo Graphic Supply, Inc., 84 F.R.D. 130, 131 (D.C. Mo. 1979) (emphasis in original).) There is a general presumption that "the depositions of a corporation through its agents should be taken at the corporation's principal place of business." Custom Form Mfg., Inc. v. Omron Corp., 196 F.R.D. 333, 336 (S.D. Ind. 2000). "Nonetheless, `the court has substantial discretion to specify the time and place of any deposition.'" Id. (citation omitted). Accordingly, "`the presumption appears to be merely a decision rule that facilitates determination when other relevant factors do no favor one side over the other.'" Id. (citation omitted). Notably, "[c]orporate defendants are frequently deposed in places other than the location of their principal place of business, especially when the deposition site is the forum most convenient to all parties and that which best serves the general interests of judicial economy." Id. at 338.

  Here, the court finds that the interests of judicial economy favor either (i) taking the deposition via videoconference, or (ii) holding the deposition in Chicago rather than Italy. Taking the deposition via videoconference strikes the court as the most logical, economical solution because nobody is required to travel. Accordingly, the court strongly recommends that the parties arrange to take the deposition via videoconference, with plaintiff to bear the costs for the videoconference. Alternatively, if either party has a reasonable objection to taking the deposition via videoconference or if a video deposition is not technologically possible, then the deposition shall take place in Chicago. As Hana K points out, both parties' attorneys are located in Chicago (in the same building, in fact). If the deposition is taken in Italy, both parties will incur lodging and travel expenses for their attorneys. See id. at 337 (travel expenses of attorneys are relevant to determining the location of the deposition). If, on the other hand, the deposition is taken here, Mr. Sorio and perhaps his Italian counsel will have to travel. That means at least two attorneys traveling to Italy, or Mr. Sorio and his Italian counsel traveling to Chicago. The travel issue thus either favors Chicago or results in a tie,*fn1 depending on which attorneys would attend the deposition. Although travel burdens are close under either scenario, the court exercises its discretion and rules that the deposition should take place in Chicago.*fn2 See Fin. Gen. Bankshares, Inc. v. Lance, 80 F.R.D. 22, 23 (D.C. 1978) ("defendants having to appear for depositions at the place of trial are not unusual").

  The only remaining issue is who should pay the costs of Mr. Sorio's lodging and travel expenses in the event the deposition is taken in Chicago rather than via videoconference. Christia maintains that Hana K should be ordered to pay the travel and lodging expenses of Mr. Sorio and his Italian counsel. Under similar circumstances, some courts, in the interest of fairness, have ordered the party seeking the deposition to pay for the deponent's reasonable travel and lodging expenses. See, e.g., Partecipazioni Bulgari, S.p.A. v. Meige, 1988 WL 113346, at *2 (S.D. Fla. 1988); Fin. Gen. Bankshares, 80 F.R.D. at 23. Other courts have ordered the parties to split the costs. See, e.g., Custom Form, 196 F.R.D. at 338. Here, to avoid a windfall to either party, the court finds that the fair result is for each party to pay half of the reasonable travel and lodging expenses for Mr. Sorio and his Italian counsel, if counsel's appearance is necessary.*fn3 With the deposition taking place in Chicago, if costs were not shared, Hana K would not incur any travel and lodging expenses, whereas Christia would incur the expenses for Mr. Sorio and Christia's Italian counsel to be present. That result is unfair to Christia. Conversely, requiring Hana K to pay all of the expenses for Mr. Sorio and Italian counsel would create a windfall to Christia because even if the if the deposition were taken in Italy, Christia would likely incur the expenses of its Chicago attorney to be present.


  Accordingly, plaintiff's motion to compel is granted to the extent plaintiff seeks the deposition of Mr. Sorio. The parties have seven days from the date of this order to notify the court whether the deposition will be taken via videoconference or in person in Chicago. In the event the deposition is taken in Chicago, the court requires each side to pay half of the reasonable travel and lodging expenses for Mr. Sorio and Christia's Italian counsel, if counsel's appearance is necessary.

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