United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered Defendant Stevens Tanker Division
LLC's Motion for Protective Order (Docket no. 100) and
the corresponding response and reply. After careful
consideration, the Court DENIES the motion.
case is an FLSA collective action. Defendant Stevens is or
was the employer of the named plaintiff and the opt-ins. The
plaintiffs are a conditionally certified class consisting of
“[a]ll past or present salaried dispatchers who worked
for [Stevens] any time since October 12, 2012, at any of
[Stevens'] locations, who were not paid overtime
compensation.” Docket no. 40 at 6.
in this case has had a contentious history, some of which is
relevant to the present discovery fight. Previously, the
discovery deadline was March 1, 2017. Docket no. 53 at 1.
With that deadline approaching, Plaintiffs noticed the
deposition of Stevens' corporate representative via
Federal Rule of Civil Procedure 30(b)(6) for March 1 in San
Antonio (where Class Counsel is located and where this
lawsuit is pending). Docket no. 82 at 5. Defendant was
planning to offer Scott Mellman as its corporate
representative, but filed its first motion for protective
order, seeking to have the deposition moved from San Antonio
to Dallas (where Stevens is headquartered and where Mellman
resides). See generally id.
Court took up Stevens' first motion for protective order
(and five other motions) at a hearing on February 27. Docket
no. 86. There, Stevens withdrew its first motion for
protective order. Id. at 2-3. As Stevens'
counsel explained, Mellman's wife unexpectedly went into
labor, thus rendering Mellman unavailable for the deposition.
Id. at 2. Stevens decided to substitute a different
corporate representative who resides in San Antonio, mooting
its first motion for protective order. Id. at 2-3.
Also at the February 27 hearing, the Court granted
Plaintiffs' request to extend the discovery period to May
1 (partly to allow Plaintiffs to take more depositions).
Id. at 26. Due to the extension of the discovery
period, Stevens asserts that Class Counsel cancelled the
30(b)(6) deposition that was set for March 1. Docket no. 102
than a month later, a new discovery fight arose. Plaintiffs
filed a Motion to Set Deadline for Compliance and to Compel
Depositions, requesting in relevant part that the Court
“order Defendant to provide multiple dates to consider
for the depositions requested so that mutually agreeable
dates may be selected.” Docket no. 92 at 2. In a March
29 text order, the Court stated “As to Plaintiffs
request that Defendant provide deposition dates for the
witnesses identified at the February 27 hearing, Plaintiffs
are authorized to notice depositions of these witnesses on a
date convenient for Plaintiffs' counsel if Defendant does
not provide dates by April 4, 2017.”
April 5, acting pursuant to this text order, Plaintiffs
noticed the deposition of Stevens' corporate
representative for May 1 in San Antonio. Docket no. 100 at 5,
21. On April 14, 2017, Stevens filed its second motion for
protective order that is now before the Court. Docket no.
100. By this motion, Stevens seeks to ensure that
Mellman's 30(b)(6) deposition occurs in Dallas rather
than San Antonio. Id.
oppose this request. Docket no. 102. They point out that
Stevens previously withdrew a similar objection, and further
that Stevens' waited too long to request Class
Counsel's cooperation in relocating the deposition.
Id. at 2. Plaintiffs argue that between April 5
(when they noticed the deposition) and April 13 (when Stevens
reached out to relocate the deposition), Class Counsel
scheduled a pretrial conference in another matter in
Brownsville on May 2 and two depositions in another matter in
San Antonio on May 3. Id.
is well settled that the deposition of a corporation by its
agents and officers should ordinarily be taken at its
principal place of business, especially when . . . the
corporation is the defendant.” Salter v. Upjohn
Co., 593 F.2d 649, 651 (5th Cir. 1979) (internal
quotations and alterations omitted). District courts in the
Fifth Circuit have treated this as a presumption that can be
overcome when the plaintiff seeking the deposition shows good
cause for allowing the deposition to be held in a location
other than the corporation's principal place of business.
E.g., West v. Velo Enter. Co., Ltd,
SA-13-CV-024-OLG, 2014 WL 12480008, at *1 (W.D. Tex. June 9,
2014). Some district courts have required “peculiar
circumstances” to overcome this presumption.
Tailift USA, Inc. v. Tailift Co., Ltd.,
CIV.A.3:03-CV-0196-M, 2004 WL 722244, at *2 (N.D. Tex. Mar.
26, 2004). In either event, whether the plaintiff has
overcome this presumption depends on the following factors:
(1) whether counsel for the parties are located in the forum
district; (2) whether the deposing party is seeking to depose
only one corporate representative; (3) whether the
corporation chose a corporate representative that resides
outside the location of the principal place of business and
the forum district; (4) whether significant discovery
disputes may arise and there is an anticipated necessity of
resolution by the forum court; and (5) whether the
claim's nature and the parties' relationship is such
that an appropriate adjustment of the equities favors a
deposition site in the forum district. Resolution Trust
Corp. v. Worldwide Ins. Mgmt. Corp., 147 F.R.D. 125, 127
(N.D. Tex. 1992), aff'd sub nom. Resolution Trust v.
Worldwide, 992 F.2d 325 (5th Cir. 1993).
party lists these factors and explicitly addresses them, but
the Court finds that Plaintiffs have overcome the presumption
and Stevens' motion should be denied. The first factor is
neutral because Class Counsel is located in San Antonio while
Stevens' counsel is located in Dallas. The second factor
favors Plaintiffs because they only seek to depose one
corporate representative, and Stevens will not be repeatedly
subject to this hardship. The third factor also favors
Plaintiffs because Stevens has chosen Mellman as its
corporate representative, even though it could have chosen a
corporate representative who lives in San Antonio; indeed,
Stevens resolved the parties' first iteration of this
dispute by offering its San Antonio-based corporate
representative in Mellman's place. The fourth factor
heavily favors Plaintiffs given the contentious history of
this case, the numerous discovery disputes that have already
arisen, and the likelihood that still more will arise.
Finally, the fifth factor favors Stevens based on the
disparity of depositions that have been taken in San Antonio
as opposed to Dallas, but this factor favors Stevens only
slightly because San Antonio is the forum for this
litigation. On balance, these factors show good cause for
conducting the deposition in San Antonio, even though
Stevens' corporate headquarters is in Dallas.
foregoing reasons, Defendant Stevens Tanker Division
LLC's Motion for Protective ...