United States District Court, Southern District of New York
January 30, 2003
AMY FREDERICK, PLAINTIFF
COLUMBIA UNIVERSITY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge
MEMORANDUM OPINION & ORDER
On January 6, 2003, the Court issued a written opinion requiring that the listed fees for deposition and travel time of plaintiff's expert. Dr. Gary Ordog, be reduced. The parties now raise a dispute over the location for Dr. Ordog's deposition. Plaintiff contends that Dr. Ordog is unable to travel to New York for a two-day deposition due to his emergency "on-call" schedule on weekdays and weekends. Dr. Ordog has made himself available to be deposed in California only on Friday, February 21, 2003, and Monday, February 24, 2003. Defendants Columbia University ("Columbia") and Carrier Corporation ("Carrier") argue that they should not be required to travel to California to depose Dr. Ordog on two days divided by a weekend, thus requiring five to six days of their time. They argue that factors such as cost and convenience weigh in favor of an order compelling Dr. Ordog to be deposed in New York.
The cases cited by plaintiff stand for the presumption that a defendant's deposition shall take place in the district where that person resides or has a principal place of business. Devlin v. Transp. Communications Int'l Union, 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14, 2000): Federal Deposit Ins. Co. v. La Antillana, S.A., 1990 WL 155727. at * 1 (S.D.N.Y. Oct. 5, 1990); Mill Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547. 551 (S.D.N.Y. 1989). This presumption can be overcome if factors such as cost, convenience, and litigation efficiency, suggest that the deposition should be held in another district. Devlin, 2000 WL 28173, at *3; Mill-Run, 124 F.R.D. at 550-51. The rationale behind the presumption is that the plaintiff has the liberty of choosing the forum and must therefore bear a portion of the burdens on the defendant. Federal Deposit Ins. Co., 1990 WL 155727, at 1. However, in this case, the party to be deposed is the plaintiff's expert, not the defendant. Even if the Court applies the presumption here, considerations of cost and litigation efficiency weigh in favor of the deposition taking place in New York. Dr. Ordog has consented to appear as an expert witness in this case and no doubt is aware he will need to be available for trial in New York. Plaintiff has not presented any compelling evidence to justify burdening defendant with the substantial costs of traveling to California for six days in order to accommodate Dr. Ordog's schedule. Plaintiff chose this expert and should produce the deponent without creating unreasonable litigation expenses for defendants. Accordingly, IT IS HEREBY ORDERED THAT plaintiff produce the expert, Dr. Ordog, in New York.
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