United States District Court, D. New Jersey
S. GREWAL ATTORNEY GENERAL OF NEW JERSEY
Bushwick Deputy Attorney General
James B. Clark, III, U.S.M.J
represent non-party witnesses Assistant Prosecutor Hernandez
and former Assistant Prosecutor Carroll. I am writing to
request the Court's intervention in a dispute regarding
the location of depositions of my clients. Specifically, my
clients request that the Court order that their depositions
take place in the offices of the Hudson County Counsel.
been in communication with all counsel and pro se
Plaintiff (who is trained as an attorney) regarding the
depositions of my clients for some time now. I received a
subpoena for Mr. Carroll in early May. On May 22, 2019, I
advised all counsel and Plaintiff that Mr. Hernandez waived
the need for a subpoena and began working with the parties to
schedule my clients' depositions. Plaintiff advised the
he was amenable to depositions on June 13, 2019. On Friday,
May 31, 2019, 1 e-mailed Plaintiff and advised that
"[m]y clients would like to have their depositions taken
in the offices of the Hudson County Counsel. I'm certain
that, in the spirit of good faith, you will find this
acceptable." Plaintiff responded by advising me that
"[w]e will take the depositions IAW with R.30 at 911
Kennedy Blvd, Bayonne on June 13, 2019." In response, I
conducted a search on Google to glean some information about
this address. It appears to be a private residence. I have
also been informed that Plaintiffs deposition was conducted
at this location and that counsel found the surroundings
unconducive for this formal proceeding. I therefore reached
out to Plaintiff and asked him to reconsider the location. He
not believe it is appropriate to subject my clients to a
deposition in a private residence, an inherently
unprofessional environment, especially when other attorneys
who have visited the location report that it lacks basic
Federal Rules of Civil Procedure do not articulate a specific
place where depositions are to occur. "Rather, pursuant
to Rule 26(c)(1) & (2), the court has broad discretion to
alter the place of a noticed deposition, upon good cause
shown, to protect a party from undue burden or expense."
Brockway v. Veterans Admin. Healthcare Sys., No.
3:10-CV-719, 2011 WL 1459592, at *5 (D. Conn. Apr. 15, 2011)
(citing Buzzeo v. Board of Educ, Hempstead, 178
F.R.D. 390, 392 (E.D.N.Y.1998)). See also Reid v. Temple
Univ. Hosp., Inc., 329 F.R.D. 531, 532-33 (E.D. Pa.
2019)Although the party seeking the deposition may usually
select the location, that practice is not absolute.
"[T]he district court, either through the magistrate or
the district judge, has great discretion in designating the
location of the taking of a deposition ... and thus each
application must be considered on its own facts and
equities." S. Seas Catamaran, Inc. v. Motor Vessel
Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988), aff'd
sub nom. S. Seas Catamaran v. Motor Vessel Leeway, 993
F.2d 878 (3d Cir. 1993) (citing Thompson v. Sun Oil
Company, 523 F.2d 647, 650 (8th Cir.1975), and Terry
v. Modern Woodmen of America, 57 F.R.D. 141, 143 (W.D.MO
consider three facts in considering questions such as this:
the cost, convenience, and litigation efficiency of the
designated location. Brockway, 2011 WL 1459592, at
*5 (citing Sloniger v. Deja, No. 09-CV-858S, 2010 WL
5343184, at *5 (W.D.N.Y. Dec.20, 2010)). The analysis
conducted by the Brockway court of these facts is
particularly applicable here. There, any costs incurred by
the plaintiff for minimal travel was deemed modest and,
critically, appropriately borne by the plaintiff because was
the one who brought the action. Brockway, 2011 WL
1459592, at *6.
the distance between the location selected by plaintiff and
the office identified by my clients is minimal. Any minimal
costs in the form of travel would be more appropriately borne
by the plaintiff than the non-party witnesses.
Next, "[f]actors relevant to convenience include
convenience of counsel, the [Plaintiffs] residence, and the
extent to which [Plaintiffs} affairs will be disrupted to and
from the depositions." [Dagen v. CFC Grp. Holdings
Ltd., No. 00 CIV. 5682 (CBM), 2003 WL 21910861, at *3
(S.D.N.Y. Aug. 11, 2003)]; [Mill-Run Tours, Inc. v.
Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989)]. In the
case at bar, the [County Counsel's Office] is convenient
to all parties concerned and especially [the non-party
witnesses]. . . . [A] 11 counsel, witnesses, and parties may
travel easily to the site, experiencing no undue interruption
or inconvenience in their schedules. Granted, plaintiff will
have to leave his home, but there is no indication in the
record that he is immobilized or otherwise unable to make
such a brief trip.
Brockway, 2011 WL 1459592, at *6.
litigation efficiency, a professional environment is far more
conducive to this. There will be photocopy machines to copy
documents if any are needed, there will be space for counsel
to confer with their clients, and a conference system to call
the Court if ad hoc intervention is necessary.
non-party witnesses Hernandez and Carroll ask this Honorable
Court to issue an order mandating that their depositions be
conducted in the offices of the Hudson County Counsel.
you for your kind attention to this matter. I note that, if
the Court is unable to rule on this in the coming days I
expect that we will ...