United States District Court, S.D. New York
ANALISA TORRES UNITED STATES DISTRICT JUDGE
December 23, 2019, the Honorable Gabriel W. Gorenstein issued
an order (the “December 23 Order”) setting the
locations and lengths of time allowed for two depositions in
this matter. ECF No. 192. Judge Gorenstein held that the
deposition of Christine Huh should take place in her district
of residence, and that 7 hours would be allowed for her
deposition. Id. at 1. Ms. Huh's district of
residence is in California. See Pl. Obj. at 1, ECF
No. 193. Likewise, Judge Gorenstein held that the deposition
of Dr. Maria Fardis should take place in California, her
district of residence, and allowed 14 hours for her
deposition. December 23 Order at 1-2. On December 24, 2019,
Plaintiff filed objections to that order. Pl. Obj. at 1. On
January 2, 2020, Defendants filed their response. Def. Resp.,
ECF No. 194. Under Federal Rule of Civil Procedure 72(a), a
district judge must modify or set aside a magistrate
judge's non-dispositive rulings that are clearly
erroneous or contrary to law. Fed.R.Civ.P. 72(a). The Court,
therefore, reviews the December 23 Order for clear error.
argues, as to both witnesses, that Judge Gorenstein erred in
applying the presumption that a witness should be deposed in
his or her place of residence. See, e.g., Fed.
Deposit Ins. Co. v. La Antillana, S.A., No. 88 Civ.
2670, 1990 WL 155727, at *1 (S.D.N.Y. Oct. 5, 1990)
(“Ordinarily, the proper place for taking an
individual's deposition is his or her place of
residence.”). Having chosen the forum, “the
plaintiff is generally required to bear any reasonable
burdens of inconvenience that the action presents.”
Gulf Union Ins. Co. of Saudi Arabia v. M/V LACERTA,
No. 91 Civ. 2814, 1992 WL 51532, at *5 (S.D.N.Y. Mar. 9,
1992) (internal quotation marks and citation omitted).
“This presumption can be overcome when the plaintiff
demonstrates peculiar circumstances. Courts also apply a
three factor analysis to determine whether the presumption
should be suspended, examining cost, convenience and
litigation efficiency.” Id. (internal
quotation marks and citations omitted).
has failed to demonstrate that Judge Gorenstein's ruling
that peculiar circumstances overcoming that presumption do
not exist in this case was clearly erroneous. Plaintiff's
argument that Defendants “voluntarily chose to litigate
this action in the Southern District of New York, ” Pl.
Obj. at 1-2, was rejected by Judge Gorenstein, and with good
reason. As Judge Gorenstein observed, it is Plaintiff that
chose to file this action in New York; Defendants merely
removed this action to the Southern District of New
York from state court and asserted counterclaims. December 23
Order at 1. Defendants cannot be said to have chosen this
forum in any meaningful sense. Plaintiff also argues that in
holding that the inconvenience on counsel of traveling to
California was roughly equal to the inconvenience on the
witnesses of traveling to New York, Judge Gorenstein
overlooked the burden on Plaintiff of transporting documents
to California for the deposition, because "exhibits must
be printed out to both identify and offer them into
evidence." PI. Obj. at 3. But the need to bring printed
documents to a deposition is not a "peculiar
circumstance." It is an ordinary cost of litigation,
and unlikely to impose a significant burden on the parties.
Plaintiff further argues, relying on Six West Retail
Acquisition v. Sony Theatre Management Corp., 203 F.R.D.
98, 107 (S.D.N.Y. 2001), that holding the deposition in New
York is justified by the significant resource disparity
between Plaintiff, an individual, and Defendants, a large
corporation and its officer. Plaintiff did not make this
argument to Judge Gorenstein, see generally ECF No.
190, and "arguments made for the first time in objection
are waived." Yunus v. Robinson, No. 17 Civ.
5839, 2019 WL 168544, at *7 (S.D.N.Y. Jan. 11, 2019). But in
any event, Six West involved potential travel to
Japan for a deposition, and other cases where a resource
disparity between the parties has tipped the balance have
likewise involved costly international travel. See Six
West, 203 F.R.D. at 108; see also, e.g., La
Antilliana, 1990 WL 155727, at *2-3. The potential need
for counsel to travel to California does not raise the same
concerns of placing an unmanageable burden on the
less-resourced party, and certainly does not render clearly
erroneous Judge Gorenstein's determination that cost,
convenience, and litigation efficiency are better served by
holding the depositions in California.
Plaintiff asserts that "the Magistrate's decision
was unduly influenced by what the Court perceived to be an
'attack' on opposing council." PI. Obj. at 1.
Plaintiff refers to Judge Gorenstein's observation that
"[w]hile both sides have engaged in unwarranted attacks
. . . [Plaintiff's attacks on the motivations of
[Defendants are particularly unseemly and unsupported."
December 23 Order at 2. Judge Gorenstein admonished the
parties that "attacks on opposing counsel have the
precise opposite effect on the Court of what counsel
presumably intended and shall cease forthwith."
Id. Far from indicating any legal error, these
statements were entirely warranted. Spurious attacks on the
motives of opposing counsel are counterproductive and have no
place in litigation before this Court. The same can be said
of unfounded assertions that a magistrate judge's ruling
was founded on bias. Accordingly, Plaintiff's objections
seek an award of attorney's fees in connection with these
objections under Rule 37(a)(5)(B) of the Federal Rules of
Civil Procedure. Def. Resp. at 3. Rule 37(a)(5)(B) provides
that when a discovery motion is denied, the court "must,
after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party or
deponent who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorney's
fees," unless "the motion was substantially
justified or other circumstances make an award of expenses
unjust." Accordingly, it is ORDERED that by
January 14, 2020, Plaintiff's counsel
shall show cause in writing, in a letter not to exceed five
pages, why they should not be required to pay fees under that
foregoing reasons, Plaintiff's objections are OVERRULED