United States District Court, Southern District of New York
March 14, 2003
AUSCAPE INTERNATIONAL, ET AL., PLAINTIFFS,
NATIONAL GEOGRAPHIC SOCIETY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
By letter dated March 7, 2003, plaintiffs requested the Court's aid in scheduling depositions, a determination as to the location of depositions, and a 45 day extension of the discovery period. The record with respect to this application contains also other letters from plaintiffs' counsel, dated March 10, 2003 and March 11, 2003, as well as defendants' response, dated March 11, 2003.
1. There is no need for the Court's assistance in scheduling depositions, at least at this stage. Despite plaintiffs' claim that National Geographic's attorney "refused to provide us with any available dates for Defendants' depositions,*fn1 the letter they cite for that proposition in fact states "[w]e are in the process of ascertaining the availability of the other witnesses [i.e., those still employed by National Geographic] . . . and will contact you early next week to discuss . . . scheduling."*fn2 Absent some convincing evidence that the defendants are refusing to make witnesses available, the Court declines to act. Should the parties be unable to schedule depositions despite further discussions and a real effort at cooperation, the Court will do it for them. They are cautioned that the convenience of counsel and the witnesses may not bear as heavily in the Court's consideration, should it be forced to do so, as it presumably would bear in the discussions of counsel.
2. Contrary to plaintiffs' assertion, "there is a general presumption that a defendant's deposition will be held in the district of his residence." Six West Acquisition, Inc. v. Sony Theatre Management Corp., 203 F.R.D. 98, 107 (S.D.N.Y. 2001) (requiring depositions in Japan); see also Universal City Studios, Inc. v. Corley, No. 00 Civ. 0277 (LAK), 2000 WL 621120, at *4 (S.D. N.Y. May 12, 2001). Accordingly, absent agreement to the contrary, defendants shall make their employee witnesses available for examination in the districts in which the employees reside.
3. In January 2003, plaintiffs sought an extension of the discovery period from March 12 until April 30, 2003.3 At that point, plaintiffs had given no indication that they wished to depose 21 witnesses associated, now or formerly, with defendants, although they then either knew or should have known what they needed to do to prepare their case for trial. Indeed, it was not until the middle of February that they first suggested a need for this extensive deposition program. Moreover, as the record in this case amply demonstrates, plaintiffs' behavior in respect of discovery has been dilatory and obstructive. In all the circumstances, the Court simply is not persuaded that the discovery period should be expanded, at least on the present record.