United States District Court, N.D. Illinois, Eastern Division
September 23, 2004.
P.H. INTERNATIONAL TRADING CO. d/b/a HANA K FASHIONS Plaintiff,
CHRISTIA CONFEZIONI S.p.A., an Italian corporation and FBLG, INC., Defendants.
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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.