UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

CHRISTELLA LOVATO, )

Plaintiff, )

)

v. ) CAUSE NO.: 4:16-CV-84-JTM-PRC

)

WAL-MART STORES INC. )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion to Compel [DE 40] filed by

Defendant1

 on June 29, 2018. Plaintiff Christella Lovato filed a response on June 13, 2018, and

Defendant filed a reply on July 20, 2018.

In the Motion, Defendant asks the Court to compel Plaintiff to provide multiple possible

dates for Plaintiff’s deposition to be taken in the Northern District of Indiana and to award

Defendant its costs incurred in bringing this Motion. Defendant had originally drafted the Motion

and accompanying Brief to include a request for authorization forms for release of medical

information, but Defendant represents that it received those releases—which were signed a few

weeks earlier—while Defendant was preparing to file the instant Motion and Brief.

Plaintiff, in response, objects to the location of the deposition but not to the taking of the

deposition in general. Plaintiff also asserts that Defendant did not meet the conferral requirements

of Federal Rule of Civil Procedure 37. For the following reasons, the Motion will be granted in part,

denied in part, and set for further briefing on the issue of an award of costs.

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Defendant is sued as Wal-Mart Stores Inc. but states that its proper name is Walmart Stores East, L.P.
ANALYSIS

Rule 37 requires that a motion for an order compelling discovery “must include a

certification that the movant has in good faith conferred or attempted to confer with the person or

party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R.

Civ. P. 37(a)(1).

In the Rule 37 certification submitted with the instant Motion, Defendant’s counsel certifies

that her firm provided proposed deposition dates to Plaintiff’s counsel on May 4, 14, 16, and 17,

which Plaintiff’s counsel either failed to respond to or declined the dates without providing

alternative dates. Further, Defendant’s counsel certifies that her firm requested alternative deposition

dates from Plaintiff’s counsel on May 2, 18, 24, and 29 and that no response was given. Finally,

Defendant’s counsel certifies that she contacted Plaintiff’s counsel by telephone and e-mail on June

27, 2018, and that Plaintiff’s counsel refused to discuss the issues telephonically and did not agree

to produce Plaintiff for her deposition or provide any dates for the deposition, though Plaintiff did

suggest a conversation be held the next week.

This certification, and the e-mail messages submitted with the Motion, show a pattern of

Defendant’s counsel’s attempts to resolve this dispute without the Court’s involvement. Plaintiff

argues that Defendant should have been required to attempt one more conferral, specifically a

telephone call on July 2, 2018. In light of Defendant’s numerous attempts over the previous weeks

to set a deposition date, the Court finds no reason to deny the Motion based on this certification.

As for the location of Plaintiff’s deposition, this is a matter left to the Court’s discretion. New

Medium Techs. LLC v. Barco N.V., 242 F.R.D. 460, 462 (N.D. Ill. 2007). However, the general rule

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is that a plaintiff must attend a deposition in the district where the case was filed. Undraitis v. Luka,

142 F.R.D. 675, 676 (N.D. Ind. 1992). The reason for the rule is that “the plaintiff has chosen the 

forum voluntarily and should expect to appear for any legal proceedings” unlike the defendant, who

“is an involuntary participant” and, as a general rule, “may insist upon being deposed in the district

where he resides.” Id.

Plaintiff argues that, if Defendant had proceeded with Plaintiff’s previously scheduled

deposition on May 1, 2018, then there would have been no problem with a deposition in this district.

However, Plaintiff has since that time graduated from her degree program and moved to New

Mexico. Plaintiff states that Defendant was informed during a telephone conversation of Plaintiff’s

plans to move out of state, but Defendant disputes that it was so informed and represents that it

searched its phone records and has no record of any such telephone conversation taking place.

Plaintiff offers that she could be deposed by video conference technology, which is permitted by

Federal Rule of Civil Procedure 30(b)(4).

Defendant seeks to attribute the postponement of the May 1 deposition date to Plaintiff.

Specifically, Defendant asserts that it postponed the May 1, 2018 deposition due to Plaintiff’s failure

to provide medical information release forms because Defendant wished to review Plaintiff’s

medical records before deposing Plaintiff.

On the other side of this dispute, Plaintiff attempts to classify the failure to schedule

depositions as a mutual matter by asserting that Defendant has a long and “well documented” history

of refusing to schedule the deposition of Deb Jenkins. However, Plaintiff provides no documentation

or other evidence on this point, and Defendant’s Exhibit A shows that in multiple e-mail messages

Defendant sought to schedule the Jenkins deposition. (See, e.g., Mot. Ex. A, 2, 6, 28, ECF No. 41-1).

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Further, the Jenkins deposition is not the subject of the instant Motion.

As for the taking of Plaintiff’s deposition by remote means, Rule 30 states that depositions

may occur by remote means either by stipulation of the parties or by Court order. Though Plaintiff

submits that a deposition by remote means is a viable option, Defendant objects on the ground that

the deposition will likely involve the examination of many documents, which is a cumbersome

process when a deposition is taken remotely. However, the distance between New Mexico and

Indiana is substantial, and the Federal Rules provide for the taking of depositions remotely. See Fed.

R. Civ. P. 30(b)(4). As for Defendant’s objection, exact copies of documents can be made and sent

in either physical or electronic form.

Plaintiff chose to bring suit in the Northern District of Indiana, and her delay in providing

medical information release authorizations at a minimum contributed to (and perhaps was the sole

cause of) the postponement of her deposition until after her move to New Mexico. Defendant has

submitted evidence that convincingly shows that it tried—even without knowledge of Plaintiff’s

impending move out-of-state—to obtain Plaintiff’s relevant medical information and depose her in

a relatively prompt manner. Plaintiff has submitted no evidence to rebut Defendant’s evidence.

There is no cause to go against the general rule and order Plaintiff’s deposition to be taken in person

in New Mexico, but taking Plaintiff’s deposition by remote means is a viable option, for which there

is good cause.

Defendant’s request for an award of costs will be set for further briefing.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS in part and DENIES in part

Defendant’s Motion to Compel and ORDERS that Plaintiff’s deposition shall take place, at

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Plaintiff’s choice, either in New Mexico by remote means or in the Northern District of Indiana. If

the deposition is taken by remote means in New Mexico, Plaintiff shall bear the additional costs

incurred by nature of the deposition not being taken in person, including the cost of providing exact

copies of any documents examined at the deposition.

The Court ORDERS Plaintiff, on or before August 6, 2018, to provide at least 4 dates in

September 2018 on which Plaintiff and her counsel are available for her deposition and to specify

whether each date is proposed for an in-person deposition or a deposition by remote means. The

Court EXTENDS the Fact Discovery Deadline to October 5, 2018.

If the deposition is taken by remote means, the Court will entertain, upon a showing of good

cause, a motion for an extension of the permitted length of Plaintiff’s deposition based on delays

caused by any inefficiencies that result from taking the deposition remotely.

Defendant has asked for an award of its costs incurred in bringing this Motion. Pursuant to

Federal Rule of Civil Procedure 37(a)(5)(C), such an award can be made. Any party wishing to

pursue such an award in light of this Opinion and Order shall submit a brief in support on or before

August 9, 2018. Response and reply deadlines shall follow those set forth in Northern District of

Indiana Local Rule 7-1(d)(2).

So ORDERED this 26th day of July, 2018.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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