Case 2:21-cv-02242-GGG-DPC Document 325 Filed 04/25/24 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
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`CIVIL ACTION
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`NO. 21-2242
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`SECTION “T” (2)
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` *
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` *
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`G.K.
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`VERSUS
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`D.M.
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`ORDER AND REASONS
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`Pending before me are Intervenors Fishman Haygood, LLP and its attorneys Michael
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`Dodson, Danielle Teutonico, and Monica Bergeron’s Motion for Protective Order (ECF No. 299)
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`and Plaintiff G.K.’s Motion to Compel Depositions or Stay All Proceedings (ECF No. 303). Both
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`parties filed Opposition and Reply Memoranda. ECF Nos. 304, 306, 310, 313. No party requested
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`oral argument, and the Court agrees that oral argument is unnecessary.
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`Having considered the record, the submissions and arguments of counsel, and the
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`applicable law, Plaintiff’s Motion to Compel or Stay All Proceedings (ECF No. 303) is DENIED
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`and Intervenors’ Motion for Protective Order (ECF No. 299) is DENIED AS MOOT for the
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`reasons stated herein.
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`I.
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`BACKGROUND
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` Plaintiff originally filed suit alleging that Defendant falsely represented his HIV status to
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`induce Plaintiff to engage in unprotected sexual relations and infected him with HIV after a sexual
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`encounter on September 1, 2019. ECF No. 3, ¶¶ 5–13, at 8–9. The court entered a default on May
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`24, 2023, and entered judgment on November 21, 2023. ECF Nos. 236, 273. Intervenors, as
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`former counsel, filed a Complaint in Intervention asserting a statutory lien and privilege on any
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`recovery. ECF No. 249.
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`After Plaintiff noticed depositions by remote means for Michael Dodson and Monica
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`Bergeron, Intervenors filed for a protective order arguing that, despite their refusal to agree to
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`remote depositions, Plaintiff noticed depositions to occur via Zoom. ECF No. 299-1. Intervenors
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`express concern that a remote deposition could allow Plaintiff to receive legal coaching from an
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`attorney who has not enrolled in this matter and further argue that the depositions should not
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`proceed remotely because the parties have not stipulated, nor has the court ordered, that the
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`depositions be taken by telephone or other remote means as contemplated by Rule 30(b)(4). Id. at
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`2-3. Intervenors further contend that Plaintiff has not made the requisite showing of hardship to
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`justify a remote deposition and, as the party who chose to bring suit in this jurisdiction, Plaintiff
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`cannot reasonably argue that the depositions may not occur in New Orleans. Id. at 4.
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`In his “Objection/Opposition” to Intervenors’ Motion, Plaintiff argues that he has good
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`cause to depose Dodson and Bergeron remotely because he now lives in Poland. ECF No. 304.
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`Plaintiff also filed his own Motion to Compel the depositions of Intervenors Dodson and Bergeron
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`to participate in depositions or, alternatively, to stay all proceedings in this matter due to Mr.
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`Dodson’s health status. ECF No. 303-1. Plaintiff contends that he noticed the depositions of
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`Dodson and Bergeron in December 2023 but both attorneys failed to appear for deposition on that
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`date and for subsequently noticed April 4, 2024 depositions. Id. at 1-2. Plaintiff has since learned
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`that Mr. Dodson is undergoing medical treatment that limits his ability to participate in an oral
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`deposition and argues that Dodson should still be required to participate in discovery just as
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`Plaintiff sat for a deposition while coping with his HIV diagnosis. ECF Nos. 303-1, 304-1 at 1.
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`Alternatively, Plaintiff argues, this matter should be stayed because Dodson is a “key witness in
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`Plaintiff’s defenses/affirmative defenses.” Id. Finally, Plaintiff asserts that he was not served with
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`a copy of the Motion for Protective Order and requests that “all previously sealed documents [be]
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`unsealed.” ECF No. 304-2 ¶ 4.
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`Plaintiff filed a Reply in support of his Motion to Compel in which he argues that
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`Intervenors are “obsessed with [his] former attorneys,” and states that he has not received copies
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`of Exhibits 3 and 4 to Intervenors’ Opposition, hence the court should strike the exhibits and/or
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`provide a copy to him. Plaintiff also contends that he has not been properly served with
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`Intervenors’ Opposition Memorandum, and argues that, if roundtrip flights to Poland are so cheap,
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`Intervenors should fly to Poland to be deposed. ECF No 310-1.
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`In Opposition to Plaintiff’s Motion to Compel and in further support of their own Motion
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`for Protective Order, Intervenors argue that Plaintiff did not satisfy the conference requirement of
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`Rule 37 before moving to compel, Intervenors are not avoiding deposition but instead invoking
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`their right to an in person deposition under Rule 30, and Plaintiff’s decision to move to Poland
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`during the pendency of this case was voluntary and should not be allowed to excuse him from his
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`litigation obligations. ECF Nos. 306, 313. Intervenors also acknowledge the “general rule… that
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`[a deposition] will occur at the location of the residence of the individual… unless the interests of
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`justice require otherwise.” ECF No. 306 at 5 (citing cases).
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`Intervenors further argue that Plaintiff’s request for a stay should be denied given
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`Plaintiff’s failure to justify the request and posit that Mr. Dodson’s medical treatment does not
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`serve to do so. Id. at 6. Should the court permit remote depositions, Intervenors request guidance
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`to ensure there is no remote participation by Shiloh Bentacourt or any other non-admitted attorney.
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`Addressing Plaintiff’s request that all previously sealed documents be unsealed, Intervenors take
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`no position on the request other than to note that the request was not made in a properly drafted
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`and noticed motion, this case is under seal pursuant to LA. REV. STAT. 46:1844(W)(1)(b), and
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`Defendant’s position on the issue is relevant given that unsealing records in this case would risk
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`disclosure of his personal information on the public docket. ECF No. 313 at 7. As to Plaintiff’s
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`assertion that he has not been properly served and cannot access certain documents, Intervenors
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`indicate that they asked Plaintiff if he would accept electronic service of pleadings in this matter,
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`but Plaintiff refused, so Intervenors have been serving Plaintiff via U.S.P.S. pursuant to Rule 5(b).
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`Id. at 8 n.13.
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`II.
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`APPLICABLE LAW
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`Federal Rule of Civil Procedure 30 governs the taking of depositions.
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`A. Location of Deposition
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`Rule 30(b)(1) of the Federal Rules of Civil Procedure provides that “[a] party who wants
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`to depose a person by oral questions . . . must state the time and place of the deposition.” This
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`generally means that the party noticing the deposition may choose the deposition’s location.1
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`Thus, a party’s unilateral choice of location for deposition is subject to entry of a FED. R. CIV. P.
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`26(c)(2) protective order designating a different place.2 When a dispute arises about the location
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`of a deposition, the Court has broad discretion to determine the appropriate place for a deposition.3
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`Thus, the court maintains authority, upon a showing of good cause, to issue an order to protect a
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`party or person from undue burden or expense, including specifying terms, such as time and place,
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`for discovery. FED. R. CIV. P. 26(c)(1)(B).
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`1 Marquette Transp. Co. Gulf-Inland, L.L.C. v. Navigation Mar. Bulgarea, No. 19-10927, 2020 WL 9396494, at *1
`(E.D. La. Feb. 19, 2020) (citing 8A C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE §
`2112 at 523).
`2 Celebration Church, Inc. v. United Nat. Ins. Co., No. 14-1050, 2015 WL 13532831, at *2 (citing Turner v. Prudential
`Ins. Co. of Am., 119 F.R.D. 381, 382 (M.D.N.C.1988) (citing 8A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND
`PROCEDURE, § 2112, at 403 (1970))).
`3 Berthelot v. Andreas Fahl Medizintechnik-Vertrieb GmbH, 17-2140, 2018 WL 1251657, at *1 (E.D. La. Mar. 12,
`2018) (citing Martin v. Allstate Ins. Co., 292 F.R.D. 361, 368 (N.D. Tex. 2013)); Marquette Trans., 2020 WL 9396494,
`at *1 (citations omitted); Birkland v. Courtyards Guest House, No. 11-0349, 2011 WL 4738649, at *2 (E.D. La. Oct.,
`7, 2011); Resolution Trust Corp. v. Worldwide Ins. Mgmt. Corp., 147 F.R.D. 125, 127 (N.D. Tex. 1992).
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`B. Deposition by Remote Means
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`Federal Rule 30(b)(4) provides the parties may stipulate, or the court may order, that a
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`deposition may be taken by remote means. A party who prefers to take a remote deposition but
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`whose request is opposed by another party may seek a protective order under Rule 26(c) as
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`necessary to protect the party from annoyance, embarrassment, oppression, undue burden or
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`expense.4
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`Determining whether an in-person deposition should be ordered requires a weighing of the
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`benefits and disadvantages to each party presented by such prospect.5 The party seeking to use
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`deposition by remote means must establish legitimate reason for its request by “a particular and
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`specific demonstration of fact as distinguished from stereotyped and conclusory statements,”6 and
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`the party opposing the motion must demonstrate why the deposition should not be conducted
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`remotely.7 Courts consider the party’s (1) age, (2) physical condition, (3) finances, and (4) other
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`factors that might result in extreme hardship in the analysis.8 “[A]bsent a specific showing of
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`hardship tied to an individual's circumstances, a general order requiring that the deposition of an
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`out-of-town plaintiff be taken telephonically is not warranted.”9
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`Courts historically recognize that live testimony is far superior to video or telephone
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`testimony, and counsel’s ability to observe a party as he or she answers questions is an important
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`4 FED. R. CIV. P. 26(c)(1)(A), (C).
`5 See Gatte v. Lowes Home Ctrs. LLC, No. 20-00472, 2020 WL 8674185, at *1 (W.D. La. Nov. 30, 2020); accord
`Tijerina-Salazar v. Venegas, No. 19-74, 2021 WL 6011137, at *2 (W.D. Tex. Dec. 20, 2021).
`6 In re Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir. 1998).
`7 Abad v. Maxum Petroleum Operating Co., 16-0001, 2016 WL 11261306, at *4 (W.D. Tex. Sept. 26, 2016) (citations
`omitted).
`8Birkland, 2011 WL 4738649, at *3 (citing Caraway v. Chesapeake Expl., LLC, 269 F.R.D. 627, 628 (E.D. Tex.
`2010); Srebnik v. Dean, No. 05–1086, 2006 WL 2331014 (D. Colo. June 20, 2006) (finding evidence of extreme
`hardship where a seventy two year old man with a history of coronary artery disease who suffered two heart attacks
`and had triple bypass surgery was required to travel to a different city for a deposition); Arce–Mendez v. Eagle Produce
`P'ship, Inc., No. 05–3857, WL 811451 (D. Ariz. March 27, 2009) (finding evidence of extreme hardship where the
`plaintiff had a yearly income of $8,000, which he used to support himself as well as his wife and four children, all of
`whom were unemployed)).
`9 Birkland, 2011 WL 4738649, at *2 (citation omitted).
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`aspect of discovery that should not be modified except in cases of extreme hardship:10 “The ability
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`to observe a party as he or she answers deposition questions is an important aspect of discovery
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`which the Court will not modify except in cases of extreme hardship.”11 Although courts
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`throughout the Fifth Circuit often refused to compel in-person attendance at depositions during the
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`COVID-19 pandemic,12 that necessity does not relieve the parties of carrying their respective
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`burdens with regard to remote depositions in the absence of COVID lockdowns.
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`III. ANALYSIS
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`A. Deposition Location
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`Plaintiff neither obtained a stipulation nor a court order before noticing remote depositions
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`and, thus, has failed to comply with Rule 30(b)(4). Accordingly, Plaintiff has no basis to complain
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`about any nonappearance in the face of stated objections to the improperly noticed depositions.
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`To determine whether good cause exists to order remote depositions, the court must weigh
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`the benefits and disadvantages to each party.13 Plaintiff’s sole argument in support of remote
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`depositions is that traveling to New Orleans for in-person depositions would be an “unreasonable
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`burden” on him because he now lives in Poland. In support of their Motion for Protective Order,
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`Dodson and Bergeron represent that remote depositions would allow Plaintiff to receive off-screen
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`coaching and legal advice from attorneys who are not enrolled as counsel of record in this matter,
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`which has allegedly been an issue throughout the litigation. Intervenors also note that, despite his
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`complaint about traveling to New Orleans for in-person depositions, “Plaintiff has demonstrated a
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`willingness and ability to travel extensively” throughout this litigation.
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`10 See, e.g., Birkland, 2011 WL 4738649, at *2 (citing Thompson v. Jiffy Lube Int'l, Inc., No. 05-1203, 2007 WL
`608343, at *5-6 (D. Kan. Feb. 22, 2007)); Thomas v. Wallace, Rush, Schmidt, Inc., No. 16-572, 2020 WL 3247380,
`at *1 (M.D. La. Mar. 18, 2020).
`11 Birkland, 2011 WL 4738649, at *2 (citing Thompson. 2007 WL 608343, at *5-6).
`12 Ross v. Dejarnetti, No. 18-11277, 2020 WL 7495555, at *4 (E.D. La. Dec. 21, 2020); see also Knuth v. Reg’l Transit
`Auth. of New Orleans, No. 20-396, 2020 WL 6742800, at *4 n.22 (E.D. La. Nov. 17, 2020).
`13 Gatte, 2020 WL 8674185, at *1.
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`In balancing the benefits and disadvantages to the parties in this case,14 the court finds that
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`Plaintiff’s recent voluntary relocation to Poland does not, on its own, constitute good cause to
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`order remote depositions. Moreover, unlike other cases in which courts have found good cause to
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`order remote depositions, Plaintiff has not argued that travel to New Orleans for the depositions
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`would jeopardize his health or impose a financial burden.15 Instead, he conclusorily asserts that
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`in-person depositions would impose an “unreasonable burden” on him given his location. Without
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`more, Plaintiff has not established good cause to conduct Intervenors’ depositions by remote
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`means.
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`Even if Plaintiff had offered more than a bare assertion of unreasonable burden, however,
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`Intervenors’ articulated concern that Plaintiff could receive off-screen assistance from unidentified
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`counsel is sufficient to require in-person depositions. Plaintiff’s sworn testimony reflects that he
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`has received legal “pointers” from counsel who is not enrolled in this matter.16 Under the
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`circumstances, Intervenors’ desire to observe Plaintiff as he conducts the depositions is reasonable
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`and warrants in-person depositions, particularly absent demonstrated extreme hardship.17
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`B. Motion to Compel
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`Plaintiff seeks to compel the depositions of Dodson and Bergeron after both Intervenors
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`allegedly failed to appear for noticed depositions in December 2023 and early April 2024. Plaintiff
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`14 See Harrison Cnty. v. Mississippi River Comm’n, No. 19-986, 2021 WL 12104840 (S.D. Miss Apr. 23, 2021)
`(quoting U.S. v. Adams, 2021 WL 856876. St *1-2 & n.1 (D.S.C. Mar. 8, 2021) (ultimately, courts must “examine
`whether remote depositions are necessary based on the individual circumstances of the specific participants”).
`15 Compare with Learning Res., Inc. v. Playgo Toys Enter. Ltd, 335 F.R.D. 536 (N.D. Ill. 2020) (health concerns
`created by COVID-19 pandemic created good cause for entry of order requiring that deposition take place by remote
`video conference) and MGI Digital Tech. S.A. v. Duplo U.S.A., No. 22-979, 2023 WL 6814579 (C.D. Cal. Aug. 24,
`2023) (quoting Lopez v. CIT Bank, N.A., No. 15-9759, 2015 WL 1037410, at *2 (N.D. Cal. Dec. 18, 2015) (concluding
`that “a desire to save money constitutes good cause to depose out-of-state witnesses through remote means.”).
`16 See ECF No. 299-10.
`17 See, e.g., Birkland, 2011 WL 4738649, at *2 (citing Thompson v. Jiffy Lube Int'l, Inc., No. 05-1203, 2007 WL
`608343, at *5-6 (D. Kan. Feb. 22, 2007)); Thomas v. Wallace, Rush, Schmidt, Inc., No. 16-572, 2020 WL 3247380,
`at *1 (M.D. La. Mar. 18, 2020).
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`argues Dodson’s medical treatment should not preclude Plaintiff from deposing Dodson in the near
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`future and alternatively argues this matter should be stayed until Dodson’s health treatments
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`conclude. Given Plaintiff’s failure to issue Rule 30(b)(4) compliant notices of deposition,
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`Intervenors had no obligation to appear for the depositions. Even if the notices were valid,
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`however, the court is not inclined to compel an individual undergoing medical treatment that
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`affects his ability to speak to sit for an oral deposition, particularly when no Scheduling Order is
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`in place at this time and, as such, the parties need not rush to complete discovery before a certain
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`date. Mr. Dodson anticipates that he will be physically able to sit for a deposition in June. Plaintiff
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`may depose him at that time. As for Intervenor Bergeron, Plaintiff may depose her in person after
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`serving a notice of deposition that provides a reasonable amount of time to comply.
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`C. Alternative Motion to Stay
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`As an alternative to compelling Intervenors’ depositions, Plaintiff requests that this matter
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`be stayed because “Intervenor Dobson [sic] is a key witness in Plaintiff’s defenses/affirmative
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`defenses.” ECF No. 303-1 at 2. Intervenors oppose the stay request, arguing that the parties need
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`time between now and Intervenors’ depositions to litigate the issue of any non-admitted’ lawyers’
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`communications with the Plaintiff in this matter.18
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`A stay is unnecessary. While Dodson cannot sit for a deposition until June, nothing in the
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`record suggests that the parties cannot conduct other necessary discovery or otherwise progress
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`the matter. Indeed, Dodson himself opposes a stay and expresses a need to litigate certain issues
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`18 A magistrate judge has authority to address a motion to stay proceedings when the order is not dispositive in that it
`“merely suspends the proceedings and does not result in an absolute denial of ultimate relief.” State Farm Lloyds v.
`Four Wives, Ltd., No. 22-169, 2023 WL 2625808, at *1-*2 (S.D. Tex. Mar. 24, 2023) (collecting cases). Because
`Plaintiff seeks a brief stay of “Attorney-Intervenors’ claims and all these proceedings” while Dodson undergoes
`medical treatment, Plaintiff’s request for a stay is a “nondispositive matter that concerns docket management,
`appropriately decided by a magistrate judge subject to a ‘clearly erroneous or contrary to law’ standard of review.'”
`Id. (citing Trojan Battery Co. , LLC v. Golf Carts of Cypress, LLC, No. 21-3075, 2022 WL 970240, at *1 n.1 (S.D.
`Tex. Mar. 31, 2022) (citing Weiters v. Vannoy, No. 16-14945, 2017 WL 736313, at *1 n.1 (E.D. La. Feb. 24, 2017))).
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`before Plaintiff deposes him.19 Plaintiff will have the opportunity to depose Dodson after he
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`completes medical treatment. This wholly justified, less-than-two-month delay of a single
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`deposition does not warrant a stay of the entire litigation.
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`D. Service and Sealing Concerns
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`On March 21, 2024 Judge Guidry ordered Intervenors to comply with Rule 5(b) by either
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`obtaining Plaintiff’s consent to electronic service of filings or serving their filings through one of
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`the methods permitted by the rule. ECF No. 295. Intervenors subsequently notified the Court that
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`Plaintiff refused to be served electronically via email. ECF No. 298. Plaintiff now asserts that he
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`has not been served with certain of Intervenor’s filings or proposed sealed exhibits and therefore
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`requests that the entire record of this proceeding be unsealed. See ECF No. 304-1 at 1. Intervenors
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`assure the court that they have complied with Judge Guidry’s March 21, 2024 Order by serving
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`Plaintiff via U.S.P.S. pursuant to Rule 5(b).
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`Given Plaintiff’s refusal to accept electronic service from Intervenors and his current
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`residence in Poland, Plaintiff has left Intervenors with no alternative but to serve him via mail.
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`Service via international mail has obvious downsides, including potential delays. Plaintiff is
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`encouraged to consider the practical limitations of service via mail. In the interim, Intervenors
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`should formally serve Plaintiff via international mail in accordance with Rule 5(b) but also send
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`him a courtesy copy of all filings via the email address he uses to file documents with the Court’s
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`EDSS systems. Plaintiff’s request that “all previously sealed documents… be unsealed” is not
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`appropriately sought via Opposition Memorandum.
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`IV. CONCLUSION
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`Accordingly, for the foregoing reasons,
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`19 ECF No. 306 at 6.
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`IT IS ORDERED that Plaintiff’s Motion to Compel or Stay All Proceedings (ECF No.
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`303) is DENIED and Intervenors’ Motion for Protective Order (ECF No. 299) is DENIED AS
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`MOOT.
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`New Orleans, Louisiana, this ________ day of April, 2024.
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`___________________________________
`DONNA PHILLIPS CURRAULT
`UNITED STATES MAGISTRATE JUDGE
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`CLERK TO NOTIFY VIA E-MAIL
`ASSOCIATED WITH EDSS FILINGS
`AND INTERNATIONAL MAIL:
`Plaintiff G.K.
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`10
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`25th
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