Opinion
8:22-cv-00194-JFB-MDN
01-12-2024
KELLI FLOREK, Plaintiff, v. CREIGHTON UNIVERSITY, KATIE WADAS-THALKEN, RHONDA JONES a/k/a RHONDA REESON and MARYANN SKRABAL, Defendants.
DEFENDANTS' POSITION STATEMENT IN SUPPORT OF REQUEST TO TAKE IN-PERSON DEPOSITION OF PLAINTIFF
Defendants seek to take the in-person deposition of Plaintiff in this case in Omaha, Nebraska. Plaintiff has objected to travelling to Omaha for an in-person deposition due to her medical condition that she claims prohibits her from travelling. Defendants must take the in-person deposition of Plaintiff to fully prepare their defense of this case.
On October 6, 2023, Defendants deposed Sharon Bachman, APRN, Plaintiff's treating provider. Ms. Bachman had provided multiple letters stating Plaintiff is unable to travel to Omaha due to her anxiety, aphasia, fatigue, and migraines and she could not predict when Plaintiff would be able to do so. (Relevant portions of Bachman Deposition Transcript, attached as Exh. A at 28:7-29:6). However, Ms. Bachman had only treated Plaintiff remotely and did not have details on the severity or frequency of Plaintiff's symptoms. (Id. at 17:16-23; 42:14-20). At the time of Ms. Bachman's deposition Plaintiff had not undergone any objective testing such as an MRI nor seen a neurologist, but informed Ms. Bachman she intended to do so. (Id. at 45:21-46:20). As of the date f this submission, Defendants have not received any additional information regarding Plaintiff's current medical condition or if she has been subjected to any further testing. While Defendants are sympathetic to Plaintiff's medical condition, they believe discovery in his case must progress and they must depose the Plaintiff in-person to be fully prepared for trial if the Court does not grant Defendants summary judgment.
“There is a well-recognized, general rule that a plaintiff is required to make itself available for a deposition in the District in which the suit was commenced.” Sun Life Assurance Co., of Canada v. Kumm, No. 8:08CV290, 2010 WL 432253, at *2 (D. Neb. Jan. 29, 2010) (internal citations omitted). The exception to this is where the plaintiff “can make a compelling showing that the rule's application would impose an unduly heavy burden, or that the overall efficiency of the discovery process would be better served by deposing the plaintiff, and its agents, outside of the forum District.” Id.
The defendants in Sun Life Assurance Co. sought to depose Sun Life employees in Nebraska-the district in which Sun Life filed its lawsuit. Id. at *1. Sun Life sought a protective order requesting that the depositions be taken in Wellesley Hills, Massachusetts, near Sun Life's principal place of business. Id. In making this request, Sun Life relied on cases in which corporate defendants were not required to travel for depositions, and were instead deposed near their residence and principal place of business. Id. at *2. The court held that “[t]he rules are different for defendants because the plaintiff has chosen the forum voluntarily, and should expect to appear there for any legal proceedings, whereas the defendant, ordinarily has had no choice in selecting the action's venue.” Id. (internal citations omitted); see also Am. Gen. Life Ins. Co. v. Baker, No. 8:09CV106, 2010 WL 1610456, at *2 (D. Neb. Apr. 19, 2010) (Plaintiff “deliberately chose the forum of this litigation and has failed to show that transporting the necessary [deponents] to Omaha, Nebraska outweighs or even approaches the cost, inconvenience, or burden” borne by all parties traveling to Houston, Texas).
Here, Plaintiff chose to file her lawsuit in Nebraska and, in doing so, should have anticipated needing to travel to Nebraska to appear, at a minimum, for her deposition and trial. However, Plaintiff contends that she is incapable of traveling such that she cannot travel to Nebraska for her deposition in the foreseeable future and perhaps not at all. To the extent Plaintiff asserts this could be resolved by conducting a remote deposition, this argument fails. See Moore v. Nebraska Beef, Ltd., No. 8:09-cv-00399-LSC-FG3, 2010 WL 3584390, at *1-2 (D. Neb. Sept. 7, 2010) (holding that a plaintiff who lived in Louisiana, was unemployed, a single parent, serving a term of probation that restricted his ability to travel out of the state, and who claimed he could not pay to travel for his deposition was required to make himself available for a deposition in Nebraska). An inperson deposition is essential to counsel's ability to observe Plaintiff's demeanor, credibility, and recall.
Indeed, if Plaintiff maintains her contention that she cannot travel such that her deposition may only be taken in her home state of Hawaii, Defendants contend that Plaintiff must pay for the associated travel costs for Defendants to take her deposition there. Treanor v. Marriott Intern., Inc., No. CV 2012*4674, 2013 WL 5796513, at *1 (E.D.N.Y. Oct. 28, 2013) (“Since the cost of defendants' travel is caused by plaintiff's strategic choices, it is appropriate to allocate the costs of the deposition to the plaintiff.”).
Therefore, the parties seek the Court's assistance to determine if Plaintiff should be compelled to travel to Omaha for an in-person deposition or, if she is unable to do, pay the travel costs of Defendants' counsel travel to Hawaii to take the in-person deposition of Plaintiff. Additionally, the parties need to extend the deadline to complete depositions and file summary judgment motions due to these circumstances.