UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAVID DURHAM Case No. 1:18-cv-91 

Plaintiff, McFarland, J.

Litkovitz, M.J.

vs.

DETECTIVE JERRY NIFFENEGGER, et al., ORDER

Defendants.

This matter is before the Court on a dispute regarding the location for defendant Scott 

Hollopeter’s deposition. Advised that the parties were unable to informally resolve this issue, 

the Court conducted a telephone conference on October 27, 2021.

Plaintiff seeks to depose Hollopeter in Cincinnati, Ohio due to the large number of 

documents involved and the desire to evaluate the witness in person. Hollopeter resides and 

works in Lexington, Kentucky. He asserts that the burden and expense of travelling to Ohio and 

missing additional work outweigh the benefit of being deposed in person. He asks to be deposed 

remotely or, if in person, in the Lexington, Kentucky area.

The case on which both parties rely accurately states the applicable legal standard as 

follows:

Pursuant to Federal Rule of Civil Procedure 30(b)(1), the party noticing the 

deposition initially selects the deposition’s location. Fed. R. Civ. P. 30(b)(1); 8A 

Charles Alan Wright, Arthur R. Miller, Richard L. Markus, Federal Practice & 

Procedure §2112 at 73 (2d ed. 1994) (“[T]he examining party may set the place for 

deposition of another party wherever he or she wishes, subject to the power of the 

court to grant a protective order under Rule 26(c)(2) designating a different 

place.”). In analyzing a motion for protective order regarding the location of a 

deposition, the Court reviews “the cost, convenience, and litigation efficiency of 

the designated location[ ].” MEMC Elec. Materials v. Balakrishnan, No. 2:12-CV344, 2012 WL 1606053, at *2 (S.D. Ohio May 8, 2012) (internal citation and 

quotation omitted).

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Hunter v. Rhino Shield, No. 2:18-cv-1097, 2019 WL 12240911, at *2 (S.D. Ohio Nov. 13, 

2019). 

“The burden of establishing good cause for a protective order rests with the movant.” Id.

at *1 (citing Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001). “Rule 26(c) confers broad 

discretion on the trial court to decide when a protective order is appropriate and what degree of 

protection is required . . . The trial court is in the best position to weigh fairly the competing 

needs and interests of the parties affected by discovery.” Id. (quoting Seattle Time Co. v. 

Rhinehart, 467 U.S. 20, 36 (1984).

In this case, defendant Hollopeter has carried his burden. The journey from Lexington, 

Kentucky to Cincinnati, Ohio is not a particularly expensive one, but it would require Hollopeter 

to miss several additional hours of work for travel time. Thus, the cost and convenience factors 

weigh in favor of Hollopeter. Although the Court is sympathetic to plaintiff’s concerns, the 

litigation efficiency factor weighs strongly in favor of a remote deposition, especially where

voluminous exhibits are required. For these reasons, the Court concludes that deposing 

Hollopeter remotely would best satisfy concerns of cost, convenience, and litigation efficiency.

 

IT IS THEREFORE ORDERED THAT:

1. Defendant Hollopeter’s oral motion to be deposed remotely is GRANTED. 

However, if plaintiff strongly prefers an in-person deposition, Hollopeter may be 

deposed at a mutually agreeable location in the Lexington, Kentucky area. 

2. The parties will agree within seven days on dates for the two remaining 

depositions. The Court will entertain a joint motion for a brief extension of the 

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November 15, 2021 discovery deadline if necessary to accommodate the newly 

scheduled depositions. 

Date: ______________ 

 Karen L. Litkovitz 

 United States Magistrate Judge

10/28/2021

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