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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


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. 2001).

  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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