United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge.
before the Court are Defendant's Motion for Protective
Order, Motion to Quash, and Motion to Compel Plaintiff to
apply for a Visa (Doc. 31), and Defendant's Motion for
Protective Order and Motion to Quash Plaintiff's
Unilateral Notice of Defendant's 30(b)(6) Corporate
Representative Deposition (Doc. 32). The Court has reviewed
Plaintiff Jorge Delgado's responses to the motions (Docs.
33, 35) and heard oral argument (Doc. 36).
served as a crewmember aboard Defendant's ships (Doc.
33). In April 2014, during the course of his shipboard
employment, Delgado suffered a herniated disk injury as a
result of the alleged negligence of Defendant (Doc. 1).
Delgado was medically disembarked and repatriated to his
native country of Peru (Doc. 33). In Lima, he received
medical care and treatment provided by Defendant's
network of doctors (Id.). Delgado represents that on
February 23, 2015, Dr. Gomez declared that he had reached
maximum medical improvement for his injury (Id.).
This lawsuit was filed in December 2015 (Doc. 1).
the parties' initial case management meeting was held on
May 11, 2016 (Doc. 12) (thus starting the period allowed for
discovery) and the discovery deadline is set to expire June
5, 2017, neither party has taken the deposition of the other.
On May 15, 2017, Delgado noticed his own deposition to occur
on May 25, 2017 “via Skype” (Doc.
31-4). On May 18, 2017, Delgado served a Notice
of Taking Deposition of Defendant's corporate
representative, to occur May 30, 2017 (Doc. 32-1). Defendant
objects to both depositions on various grounds. When asked at
hearing why Defendant did not notice Delgado's
deposition, its counsel said Defendant made a “business
decision” to wait until after the April 24, 2017
mediation to determine whether it was necessary to depose
Delgado. When Delgado was asked about his own delay
in seeking to depose Defendant's corporate
representative, his lawyer claimed that defense counsel have
“refused to produce their calendars, ” thus
forcing him to unilaterally schedule the deposition to occur
before the discovery cut-off.
regarding the taking of Delgado's deposition (Doc.
26(c) allows the Court to enter a protective order, for good
cause, to protect a party from annoyance, embarrassment,
oppression, or undue burden or expense. Fed.R.Civ.P.
26(c)(1). Defendant relies on the rule here, and objects to
the unilateral scheduling of Delgado's deposition via
Skype, arguing that Delgado should be compelled to apply for
a visa in order to appear in Florida for his deposition and
“possible” Rule 35 examination. Defendant also
seeks an extension of time to complete Delgado's
deposition and “if necessary” Rule 35
examination, and also requests an extension until July 1 for
Defendant's expert physician disclosures. Defendant
requests attorney's fees and costs associated with
bringing its motion. The Court finds that for the most part,
the motion is without merit.
last minute and unilateral scheduling of Delgado's
deposition by Delgado would normally be enough to
warrant quashing the notice. But at hearing, Delgado's
attorney represented that visa difficulties will most likely
preclude his client's presence at trial, making testimony
by remote means essential to preserve Delgado's testimony
for trial. As Defendant did not timely attempt to take
Plaintiff's deposition for reasons of its own, Delgado
cannot be faulted for setting it himself.
by remote means are not unusual, given the strides of
technology, and it is undisputed that Delgado needs but does
not have the visa necessary to enter the United States for
this purpose. In addition, Delgado represents that he is an
unemployed seaman with scarce financial means and travel for
this purpose is a great economic hardship. While the Court
acknowledges that deposing Delgado from Peru via Skype is not
as desirable as a face to face deposition in Florida, to the
extent this is a burden on Defendant, such burden is not
“undue” under the circumstances. See
Rule 30(b)(4) (allowing deposition “by remote
means”); Balu v. Costa Crociere S.P.A., No.
11-60031-CIV, 2011 WL 3359681, at *2 (S.D. Fla. Aug. 3, 2011)
(noting “depositions are now readily taken
inexpensively by internet video (e.g., Skype) or through
somewhat more expensive, but still efficient, video
conferencing facilities.”); Hernandez v. Hendrix
Produce, Inc., 297 F.R.D. 538, 541 (S.D. Ga. 2014)
(“Skype depositions have been used where travel is cost
prohibitive” - collecting cases); In re
Willingham, No. 3:11-AP-00269-JAF, 2014 WL 3697556, at
*4 (Bankr. M.D. Fla. July 18, 2014) (“ample case law
recognizes that a videoconference deposition can be an
adequate substitute for an in-person deposition, particularly
when significant expenses are at issue” - collecting
cases). As noted in a case cited by Defendant:
““[I]f a plaintiff demonstrates hardship or
burden that outweighs any prejudice to the defendant, the
general rule requiring a plaintiff to appear for deposition
in the forum ‘may yield to the exigencies of the
particular case.'” Arval Serv. Lease S.A. v.
Clifton, No. 3:14-CV-1047-J-39MCR, 2015 WL 12818837, at
*3 (M.D. Fla. June 23, 2015), quoting Palma v. Safe
Hurricane Shutters, Inc., 2009 WL 653305, *4 (S.D. Fla.
Mar. 12, 2009). Here, I find no reason to compel Delgado to
apply for a visa or incur the expense of traveling to Florida
for his deposition.
also not persuaded that Delgado's presence in Florida is
required for a “possible” Rule 35 examination.
Defendant has filed no motion seeking such an examination
and, considering that Delgado has been under the care of
physicians employed by Defendant, it has not established good
cause for same. There is also no good cause shown for
extending the deadline for expert witness disclosures.
Defendant's motion is denied to the extent it seeks to
quash the deposition of Delgado, compel Delgado to obtain a
visa in order to come to Florida, for an award of costs, and
for an extension of time to make expert witness disclosures.
Defendant's motion is granted to the extent it seeks an
extension of time to complete Delgado's deposition, as
follows: Delgado may be deposed in Peru by remote means
(Skype, videoconferencing or similar) at a time mutually
convenient to the parties, but no later than July 31, 2017.
If taking the deposition by videographic means proves to be
demonstrably insufficient and Defendant can show
good cause, Defendant may move to tax the costs of defense
counsel taking the deposition in person in Peru. Consistent
with the requirements of the Case Management and Scheduling
Order, any discovery conducted after the dispositive motions
date will not be available for summary judgment purposes and
the delay in taking this deposition is not grounds for
extension of the summary judgment deadline.
regarding the taking of Defendant's deposition (Doc.
moves for a protective order and to quash Delgado's
unilateral Notice of Deposition of Defendant's 30(b)(6)
Corporate Representative, contending that it was not timely
served, was not coordinated with defense counsel, and
Defendant's chosen counsel is not available on the date
selected, or any other date prior to the expiration of
30(b)(1) provides that “[a] party who wants to depose a
person by oral questions must give reasonable written notice
to every other party.” Fed.R.Civ.P. 30()(1). Pursuant
to our local rule: “Unless otherwise stipulated by all
interested parties …, a party desiring to take the
deposition of any person upon oral examination shall give at
least fourteen (14) days' notice in writing to every
other party to the action and to the deponent (if the
deponent if not a party).” L. R. 3.02. As ...