United States District Court, W.D. New York
April 28, 2004.
CHRISTOPHER DRONGOSKY, et al., Plaintiffs,
CHARLES FLYNN, et al., Defendants.
The opinion of the court was delivered by: KEN SCHROEDER, Magistrate Judge
DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Richard
J. Arcara, in accordance with 28 U.S.C. § 636(b), for all
pretrial matters and to hear and report upon dispositive motions.
Dkt. # 19, 99.
Currently before the Court is a motion on behalf of defendants
Frank MacKay and the Independence Party seeking an order that the
deposition of defendant MacKay be taken in New York County. Dkt.
#142. In support of this motion, counsel for defendant MacKay
declares that in light of "the limited nature of the matters that
can be inquired into and the peripheral involvement, if any, of
defendant MacKay in what is essentially a local dispute, it would
be unduly burdensome for Mr. MacKay and his present counsel to
travel to Erie County" for the deposition. Dkt. #142. Plaintiffs'
counsel responds that plaintiffs have afforded defendant MacKay
every professional courtesy in their attempts to obtain discovery
from him, but have been met with resistance at every turn. Dkt.
#147. The caselaw does establish a general presumption that
a defendant's deposition will be held in the district
of his residence. However, this rule is often honored
in the breach.
The initial issue to be addressed, then, is the
weight to be accorded this presumption. Because
courts retain substantial discretion to designate the
site of a deposition, the presumption appears to be
merely a decision rule that facilitates determination
when other relevant factors do not favor one side
over the other.
Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 550
(S.D.N.Y. 1989) (internal citations omitted). Other relevant
factors include, but are not limited to, cost, convenience, and
litigation efficiency. Id.; see Six West Retail Acquisition,
Inc. v. Sony Theatre Mgmt Corp., 203 F.R.D. 98, 107 (S.D.N.Y.
In the instant case, the Court is of the opinion that Mr.
MacKay should be deposed in the Western District of New York. In
reaching this conclusion, the Court takes notice of the fact that
defendant MacKay's deposition was initially noticed for Buffalo,
New York on January 27, 2003. Dkt. #147, ¶ 17. The defendant did
not move for a protective order or otherwise challenge the
location of the deposition, but simply failed to appear.
The Court held a status conference with counsel for the parties
on that date, at which time the Court addressed the scope of
questions which could be asked of the defendant. Dkt. #110. In
light of the limitation of the scope of questions permitted by
the Court, plaintiffs' counsel agreed that those defendants who
had not yet been deposed could respond to the aforementioned
question in writing and under oath. Dkt. #121, ¶ 5. Counsel
agreed that if any of the defendants answered the first question in the affirmative, arrangements would be made for that
individual to appear in person at a deposition. Dkt. #121, ¶ 6.
Defendants failed to respond to the question, requiring
plaintiffs' counsel to file a motion to extend discovery
deadlines contained in the Court's Case Management Order. Dkt.
#111. Defendants opposed plaintiffs' motion, requiring the Court
to Order the defendants to respond by April 14, 2003. Dkt. #117.
On April 14, 2003, defendants purported to file responses with
the Court. Dkt. #118. A review of the document filed, however,
revealed a vague response, written on the same page as defense
counsel's certification and original signature, with a conformed
verification of defendant Frank MacKay attached. Dkt. #118. The
conformed verification indicated that Mr. MacKay signed the
verification before William Bogart, a Notary Public in Suffolk
County, on April 14, 2003. Dkt. #118. During a status conference
before the Court on June 10, 2003, plaintiffs' counsel questioned
the filing of the conformed verification and was assured that the
verification bearing original signatures had been either filed
with the Clerk or submitted to the Court as a courtesy copy.
However, on July 25, 2003, in response to plaintiffs' motion to
compel and for sanctions, defendant filed an original
verification notarized by Harry Kresky, a Notary Public in New
York County, on April 14, 2003. Dkt. #124.
As a result of defendant MacKay's: (1) failure to appear for
deposition; (2) failure to respond to deposition questions in
writing in a timely fashion; and (3) filing of a response
containing a conformed verification notartized by a different
notary than the original verification subsequently presented to
the Court, the Court was persuaded that Mr. MacKay's personal appearance at a deposition was required.
Dkt. #118, 124, 127. Accordingly, the Court struck defendant
MacKay's written response (Dkt. #118), and Ordered his personal
appearance at a deposition at a mutually convenient time within
60 days of the filing of the Decision and Order on January 26,
2004. Dkt. #127. Thereafter, the Court extended the deadline for
Mr. MacKay's deposition to May 26, 2004. Dkt. #139.
In light of the foregoing history, it is clear that plaintiffs
have expended considerable effort and expense in their quest to
obtain basic discovery from defendant MacKay. Moreover, it
appears that defendant MacKay took advantage of the plaintiffs'
willingness to permit an initial deposition upon written
questions. Thus, the Court finds that any inconvenience
associated with the deposition of Mr. MacKay should be born by
the party necessitating the deposition. In addition, the Court
finds it difficult to fathom how an individual holding the
position of State Chair of the Independence Party could claim
that travel to the Western District of New York would impose an
undue burden upon him. The Court has afforded defendant MacKay
ample time to arrange his schedule to accommodate such travel
plans. Defendant MacKay's motion (Dkt. #142), is DENIED.
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