UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SWATANTRA SUD, an individual 

 Case No. 2:08-cv-14245 

 Plaintiff, Judge: Steven J. Murphy 

 v. Magistrate Donald A. Scheer 

AIR FRANCE KLM GROUP, a 

Foreign Corporation for Profit, 

Doing Business as AIR FRANCE 

 Defendant. 

__________________________________________________________________ 

Law Offices of Mark Kelley Schwartz, P.C.

By:MARK KELLEY SCHWARTZ 

(P48058) 

Attorney for Plaintiff 

29201 Telegraph Rd., Ste. 330 

Southfield, MI 48034 

Tel: (248) 353-4000 

Fax: (248) 353-4005 

Email: mks@mkslawfirm.com 

CHRISTOPHER G. KELLY 

JUDITH NEMSICK 

Holland & Knight LLP 

Attorneys for Defendant 

195 Broadway 

New York, NY 10007 

Tel: (212) 513-3514 

Fax: (212) 385-9010 

Email: christopher.kelly@hklaw.com 

Email: judith.nemsick@hklaw.com 

Jaffe Raitt Heuer & Weiss, P.C. 

SCOTT R. TORPEY (P36179) 

WILLIAM D. ADAMS (P54404) 

Attorneys for Defendant 

27777 Franklin Road, Ste. 2500 

Southfield, MI 48034 

Tel: (248) 351-3000 

Fax: (248) 351-3082 

Email: storpey@jaffelaw.com 

Email: wadams@jaffelaw.com 

HEARING DATE: 

 January 14, 2010 – 2:00 p.m. 

__________________________________________________________________ 

PLAINTIFF’S RESPONSE TO DEFENDANT’S 

MOTION FOR PROTECTIVE ORDER

The central issue to be resolved is whether a defendant can prevent the 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.59 Filed 12/11/09 Page 1 of 22
taking of all depositions of its employees, including eyewitness employees, merely 

by ‘agreeing’ to not contest liability at trial, or whether a plaintiff is entitled to 

take the depositions of the defendant’s employees who have knowledge 

concerning the basis for his claims, including those eyewitness employees, under 

Rule 26(b). 

Defendant Air France, in response to Plaintiff’s Notice of Taking 

Deposition pursuant to Rule 30(b)(6) has moved this court for a protective order 

seeking to prevent, outright, any of its employees from being deposed. Its basis 

for doing so is the representation that it won’t contest liability. However, the 

employees who it desires to shield from having their depositions taken include 

eyewitnesses to the events aboard Flight 374 from Paris to Detroit and those who 

can provide context and background to Plaintiff’s claims concerning the condition 

of the aircraft, Air France’s policies and procedures relating to in-flight service 

and those other categories of corporate representatives designated in the 30(b)(6) 

notice. 

While the stated representations concerning the goals of Air France in 

controlling the cost of discovery and securing swift and speedy resolution are 

important, and in fact, are more often than not cited to by plaintiffs in litigation 

against multi-national corporations like Defendant; Air France seeks in this 

instance to borrow that template and prevent Plaintiff from gaining traction on 

issues of liability and damages – all of which are relevant under rule 26(b). 

Plaintiff may agree after securing initial testimony of Air France’s witnesses to 

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accept the ‘explicit waiver of liability’ Air France now offers – but cannot be 

forced to do so at this juncture. 

This action is brought under the Montreal Convention, which for damages 

under 100,000 Special Drawing Rights (SDR) (approximately $159,000), provides 

that Defendant cannot exclude or limit its liability, except only to show 

comparative fault by Plaintiff. For damages in excess of 100,000 SDR’s, Air 

France can only seek to show it had no fault or that the injury occurred solely due 

to the negligence of a third party. In other words, Air France’s offer to not contest 

liability is less of a genuine offer to abide by the meaning of Fed. R. Civ. P. Rule 

1, and more of a reality-check given the relative burdens of proof on parties in 

Montreal Convention litigation. 

Wherefore, for the reasons presently stated as well as those discussed at 

greater length in Plaintiff’s Brief in Support of His Response to Defendant’s 

Motion for Protective Order, Plaintiff respectfully requests this court deny 

Defendant’s motion and order Air France to submit its employees for their 

depositions. 

Respectfully Submitted, 

 MARK KELLEY SCHWARTZ, P.C.

 

 /s/ Mark Kelley Schwartz 

 By: Mark Kelley Schwartz (P48058) 

 29201 Telegraph Road, Ste 330 

 Southfield, MI 48034 

 Tel: (248) 353-4000 

Facsimile: (248) 353-4005 

 Email: mks@mkslawfirm.com 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.61 Filed 12/11/09 Page 3 of 22
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SWATANTRA SUD, an individual 

 Case No. 2:08-cv-14245 

 Plaintiff, Judge: Steven J. Murphy 

 v. 

AIR FRANCE KLM GROUP, a 

Foreign Corporation for Profit, 

Doing Business as AIR FRANCE 

 Defendant. 

________________________________________________________________________

Law Offices of Mark Kelley Schwartz, P.C. 

By:MARK KELLEY SCHWARTZ (P48058)

Attorney for Plaintiff 

29201 Telegraph Rd., Ste. 330 

Southfield, MI 48034 

Tel: (248) 353-4000 

Fax: (248) 353-4005 

Email: mks@mkslawfirm.com 

CHRISTOPHER G. KELLY 

JUDITH NEMSICK 

Holland & Knight LLP 

Attorneys for Defendant 

195 Broadway 

New York, NY 10007 

Tel: (212) 513-3514 

Fax: (212) 385-9010 

Email: christopher.kelly@hklaw.com 

Email: judith.nemsick@hklaw.com 

Jaffe Raitt Heuer & Weiss, P.C. 

SCOTT R. TORPEY (P36179) 

WILLIAM D. ADAMS (P54404) 

Attorneys for Defendant 

27777 Franklin Road, Ste. 2500 

Southfield, MI 48034 

Tel: (248) 351-3000 

Fax: (248) 351-3082 

Email: storpey@jaffelaw.com 

Email: wadams@jaffelaw.com 

HEARING DATE: 

 January 14, 2010 – 2:00 p.m. 

________________________________________________________________________ 

PLAINTIFF’S BRIEF IN SUPPORT OF HIS RESPONSE

TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.62 Filed 12/11/09 Page 4 of 22
CONCISE STATEMENT OF ISSUES PRESENTED

I. WHETHER DEFENDANT IS ENTITLED TO A PROTECTIVE 

ORDER FORBIDDING PLAINTIFF FROM TAKING THE DEPOSITIONS 

OF ANY OF ITS EMPLOYEES OR CORPORATE REPRESENTATIVES 

UPON A STATEMENT THAT IT WILL NOT CONTEST LIABILITY AT TRIAL. 

Plaintiff answers, “NO.” 

Defendant would answer, “YES.” 

ii 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.63 Filed 12/11/09 Page 5 of 22
TABLE OF CONTENTS

Page

CONCISE STATEMENT OF ISSUE PRESENTED........................................... ii. 

TABLE OF AUTHORITIES........................................................................ iv. 

STATEMENT OF CONTROLLING/MOST APPROPRIATE AUTHORITY.................... v. 

I. INTRODUCTION............................................................................................................. 1. 

 A. Plaintiff’s Statement of Relevant Facts....................................................................... 1. 

 B. Procedural Background............................................................................................... 3. 

II. LEGAL ARGUMENT .................................................................................................... 5. 

 A. Air France’s Decision to Not-Contest Liability 

 is Not a Stipulation. The Parties Have Not 

 Reached Mutual Assent. ............................................................... 5.

B. Defendant has Not Met Its Burden of Good 

 Cause Regarding Issuance of a Protective Order. ..................................... 6. 

 C. Air France’s Witnesses Include Factual Witnesses. ................................. 10. 

III. CONCLUSION AND RELIEF REQUESTED .............................................................. 11. 

IV. CERTIFICATE OF SERVICE.................................................................. 12. 

IV. INDEX OF EXHIBITS................................................................................................... 13. 

iii 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.64 Filed 12/11/09 Page 6 of 22
TABLE OF AUTHORITIES

Cases

Blakenship v. Hearst Corp., 

519 F2d 418, 429 (9th Cir. 1975) 

Custom Form Manufacturing, Inc. v. Omron Corp., 

196 F.R.D. 333, 337 (D.C. Ind. 2000)

Foltz v. State Farm Mut. Auto Ins. Co. 

 331 F3d 1122, 1130 (9th Cir. 2003)

Gibson v. International Freighting Corp., 

8 F.R.D. 487 (E.D. Pa. 1947), aff'd 173 F.2d 591 (3d Cir. 1949) 

 

In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Lit., 

669 F2d 620, 623 (10th Cir. 1982)

Land Ocean Logistics, Inc. v. Aqua Gulf Corp., 

181 F.R.D. 229, 242 (W.D.N.Y. 1998) 

Lewis v. ACB Business Services, Inc., 

135 F.3d 389, 402 (6th Cir. 1998) 

 

Rose v. Saginaw County, 

353 F. Supp. 2d 900 (E.D. Mich 2005) 

Schultz v. Koninklijke Luchtvaart Maatschappij N.V. KLM 

Roytal Duth Airlines Holland, 21 F.R.D 20 (E.D. N.Y. 1957)

Sowers v. General Motors Corp., 

16 F.R.D. 562 (E.D.Pa.1954) 

Supine v. Air France, 

21 F.R.D. 42, 42-44, (E.D. N.Y. 1955) 

Tomingas v. Douglas Aircraft Co., 

45 F.R.D. 94, 97 (D.C.N.Y.1968)

United States v. Int’l Business Machine Corp., 

66 F.R.D. 180 (S.D.N.Y. 1974)

iv 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.65 Filed 12/11/09 Page 7 of 22
Court Rules

Fed. R. Civ. P. 26 

Fed. R. Civ. P. 30(b)(6) 

Other Authorities

Convention for the Unification of Certain Rules Relating to International 

Carriage by Air, opened for signature on 28 May 1999, 

reprinted in S. Treaty Doc. 106-45, 1999 WL 333292734

v 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.66 Filed 12/11/09 Page 8 of 22
PLAINTIFF’S STATEMENT OF CONTROLLING/MOST APPROPRIATE 

AUTHORITY

Plaintiff asserts that Fed. R.Civ. P Rule 26(b)(1) is the most appropriate controlling 

authority. 

vi 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.67 Filed 12/11/09 Page 9 of 22
I. INTRODUCTION 

A. Plaintiff’s Statement of Relevant Facts 

 Plaintiff, Swantantra Sud, was a passenger aboard Air France Flight 374 (the 

“accident flight”) on December 16, 2007, flying from Charles de Gaulle Airport, Paris, 

France, to Detroit’s Wayne County Airport. While in flight, Plaintiff and the passenger 

sitting next to him, desired hot tea and were instructed by a flight attendant, after ringing 

the flight attendant call button, to go back to the airplane’s galley in order to be served. 

Plaintiff’s Complaint, ¶ 10. Plaintiff and his seatmate both left their seats and went back 

to the airplane galley where they were given cups containing a tea bag which were filled 

with hot water poured directly from the aircraft’s coffeemaker/hot water dispenser by an 

Air France flight attendant.1

Plaintiff returned to his window seat, crossing over the “B” aisle seat, brought his 

tray table down and placed the cup of tea in the detent on the tray table. Plaintiff’s 

seatmate, who entered the row immediately behind Plaintiff, sat down and brought down 

the armrest that they shared. The armrest fell in a very fast manner, without any 

tensioning, and, because of the limited distance between the seat rows (referred to as seat 

pitch), it struck the Mr. Sud’s already-lowered tray table, dislodging his hot tea and 

causing it to run down the tray table onto his lap where it burned his upper leg area and 

his testicles, causing second degree burns and scarring. Plaintiff also sustained a tear to 

his right medial hamstring after trying to alight from his seat to avoid further burns from 

 

1

 Plaintiff was seated at Row 28, Seat A (next-to the window). The other passenger, Mr. Dilip Desai, was seated in 

28B. 

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the hot tea (unfit for human consumption at that temperature) which continued to run 

down his tray table and onto his lap. 

Plaintiff filed this Complaint against Air France KLM Group, a foreign 

corporation for-profit doing business as Air France, setting forth the negligent and 

wrongful conduct of Defendant and its employees: 1) negligently permitting a heated 

beverage to be served at an unsafe temperature which caused second-degree burns on 

Plaintiff’s scrotum and thigh; 2) intentionally or wrongfully maintaining a seating 

configuration which placed the swing-path of the armrest adjacent to Plaintiff’s seat in 

contact with the tray table, 3) negligently or wrongfully maintaining the armrest adjacent 

to Plaintiff’s seat such that it did not have any tension but rather came down in an 

uncontrolled manner; and, 4) negligently failing to provide timely or appropriate medical 

attention to Plaintiff, exacerbating the initial injuries and causing further injuries and 

losses. Plaintiff’s Complaint, ¶ 21. 

 This action was filed pursuant to the Convention for the Unification of Certain 

Rules Relating to International Carriage by Air, opened for signature on 28 May 1999, 

reprinted in S. Treaty Doc. 106-45, 1999 WL 333292734 (entered into force November 4, 

2003) (treaty), commonly referred to as the Montreal Convention, which provides, in 

relevant part, at Article 17 that Air France is “liable for damage sustained in the event of 

a death or wounding of a passenger or any other bodily injury suffered by a passenger, if 

the accident which caused the damage sustained took place on board the aircraft.” 

Defendant denied any liability. Answer and Affirmative Defenses of Sociètè Air France, 

¶ 21. 

 The Montreal Convention generally provides, in passenger-injury cases, a two-tier 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.69 Filed 12/11/09 Page 11 of 22
system of compensation. Article 21 provides that for damages not exceeding 100,000 

Special Drawing Rights, the carrier should not be able to exclude or limit its liability.2

 

Article 21, Sec. 1. If an air carrier can prove that the injury to a passenger was “not due 

to the negligence or wrongful act or omission of the carrier or its servants or agents” or 

that the damage “was solely due to the negligence or wrongful act or omission of the 

third-party”, the carrier will not be liable for any damages in excess of 100,000 Special 

Drawing Rights. The air carrier can be wholly or partially exonerated from liability if it 

can prove that the damage to the passenger was caused or contributed to by the 

negligence or other wrongful act or omission of the person claiming compensation. Id., 

Article 20. 

B. Procedural Background

 Swatantra Sud filed his action on October 6, 2008. Sociètè Air France filed its 

Answer and Affirmative Defenses on November 21, 2008. The parties continued to 

engage in cooperative discovery relating to their initial disclosures as required under Fed. 

R. Civ. P. 26(a). 

Plaintiff’s First Request for Production of Documents were propounded to 

Defendant on February 19, 2009. During the ensuing months, both Defendant’s counsel 

and Plaintiff’s counsel attempted to work through the language of a stipulated Protective 

Order regarding certain claimed-proprietary documents to be produced by Air France and 

the photographs and medical records to be produced by Plaintiff in the litigation. Not 

having reached any accord, principally because the parties could not agree on the 

 

2

 A Special Drawing Right is a unique monetary unit which acts only in the capacity of a reserve instrument, 

promulgated and controlled by the International Monetary Fund It is composed of a basket of currencies which are 

examined every five years. As of the date of this document, 1 SDR equals $1.59 (USD). 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.70 Filed 12/11/09 Page 12 of 22
respective obligation of Air France to release information which fell within the category 

of discoverable information under Fed. R. Civ. P. Rule 26 (b), yet may come within the 

penumbra of information that is considered private under certain alleged directives of the 

French Republic. 

Having reached no accord, on August 4, 2009, Plaintiff noticed the deposition(s) 

of Defendant’s Corporate Representatives in five areas of knowledge. See, Notice of 

Taking Depositions Pursuant to Fed. R. Civ. P. 30(b)(6) – Duces Tecum, at Exhibit 1. 

On August 28, 2009, defense counsel emailed Plaintiff’s counsel informing them that the 

depositions were unnecessary in light of Air France’s willingness to stipulate to a ‘no 

contest’ of liability and not to raise any defenses of Plaintiff’s comparative fault or the 

fault of a fellow passenger provided that the case proceeded on damages-related 

discovery only which meant no pending or further discovery of any Air France witnesses. 

Defendant attached a proposed Stipulation on Liability and Discovery Matters in 

which Air France “expressly denies that it is responsible or liable for the subject accident 

and any damages sustained by Plaintiff”, yet agreed not to contest its liability for 

recoverable compensatory damages. Further, the proposed purported Stipulation 

provided that Defendant “does not waive its right to contest and litigate any other issues 

in this action including but not limited to the proper amount of compensatory damages, 

whether Plaintiff’s proof of damages is admissible and sufficient, whether certain 

damages were caused by the subject accident, whether Plaintiff failed to mitigate 

damages allegedly caused by the subject accident, and whether Plaintiff’s damages are 

recoverable under applicable law based upon the type and nature of the damages 

alleged.” Exhibit 2, Stipulation on Liability and Discovery Matters. The proposed 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.71 Filed 12/11/09 Page 13 of 22
stipulation required Plaintiff to agree to “indemnify and hold Defendant and its directors, 

officers, employees, agents, insurers, subsidiaries, corporate parents and corporate 

affiliates, harmless from any and all claims or actions by other individuals or entities 

against whom Plaintiff makes any claim arising out of the subject accident and any and 

all expenses incurred in connection with defense of such actions, and further not to 

introduce or seek leave of the Court to introduce any evidence of Defendant’s alleged 

culpable conduct at any trial of this action. (Emphasis added.) Id., ¶ 4. Under the 

proposed Stipulation, Plaintiff was also to limit its recovery for compensatory damages to 

$225,000. Id. 

 On September 10, 2009, Plaintiff adjourned, upon agreement with opposing 

counsel, the 30(b)(6) deposition of Defendant’s representatives scheduled for September 

14, 2009. Defendant’s objections and responses to Plaintiff’s First Request for 

Production of Documents was received eventually by Plaintiff on September 15, 2009. 

After several more conversations with opposing counsel regarding the available dates in 

early December for the depositions of Air France’s corporate representatives, Air France 

caused to file their Motion for Protective Order on November 24, 2009. 

II. Legal Argument 

A. Air France’s Decision to Not-Contest 

Liability is Not a Stipulation. The Parties 

Have Not Reached Mutual Assent. 

In its most basic form, a stipulation is formed through basic contract principles. It 

requires mutual assent of the parties to reach, as it forms a basic contract between the 

parties. A stipulation serves to narrow disputes and as such is generally encouraged to 

5 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.72 Filed 12/11/09 Page 14 of 22
promote justice. Rose v. Saginaw County, 353 F. Supp. 2d 900 (E.D. Mich. 2005). An 

unsigned stipulation is not binding on any party. Land Ocean Logistics, Inc. v. Aqua Gulf 

Corp., 181 F.R.D. 229, 242 (W.D.N.Y. 1998). Neither the proposed stipulation (really, 

a stipulation, agreement to cap Plaintiff’s damages and an indemnification agreement) 

provided by Air France to Plaintiff’s counsel, nor the statement in their motion for 

protective order to not-contest liability constitutes a stipulation. 

Plaintiff did not agree to the proposed stipulation as submitted by Air France. 

Although the concessions (or waiver) it now proposes in light of its moving for the 

Protective Order does not include some of the onerous portions of their prior proposal, 

Plaintiff will not agree to the stipulation as it impermissibly it seeks to cut-off Plaintiff’s 

rights under Fed. R Civ. P. Rule 26(b)(1) to conduct basic discovery of the facts and 

circumstances surrounding the accident by taking the depositions of Defendant’s 

witnesses. 

B. Defendant has Not Met Its Burden of 

Good Cause Regarding Issuance of a 

Protective Order. 

The issuance of a protective order is controlled by Fed. R. Civ. P. Rule 26(c). 

Good cause needs to be demonstrated by the moving party to protect the party or person 

from “annoyance, embarrassment, oppression or undue burden or expense.” Fed. R. Civ. 

P. Rule 26(c)(1). A particular and specific need for the order must be shown. Blakenship 

v. Hearst Corp., 519 F2d 418, 429 (9th Cir. 1975). Broad generalized allegations of 

harm, without specific reasons do not satisfy the standard. Foltz v. State Farm Mut. Auto 

6 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.73 Filed 12/11/09 Page 15 of 22
Ins. Co. 331 F3d 1122, 1130 (9th Cir. 2003). 

Under the Federal Rules of Civil Procedure, Plaintiff is entitled to “obtain 

discovery regarding any matter, not privileged, that is relevant to the claim or defense of 

any party.” Fed. R. Civ. P. 26(b)(1). Relevant information is defined further in that same 

paragraph as not requiring admissibility at trial, “if the discovery appears reasonably 

calculated to lead to the discovery of admissible evidence.” Id. Even if one were to 

adopt Air France’s fallacious reasoning that their waiver prohibits all discussion of 

liability, both in discovery and in trial, their argument is one of admissibility of evidence, 

not relevancy under the rules for discovery.3

 

The scope of discovery is also broader than that allowed at trial. Lewis v. ACB 

Business Services, Inc., 135 F.3d 389, 402 (6th Cir. 1998) Discoverable evidence is not 

just limited to that evidence which will be admissible at trial so long as the information 

appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. 

Civ. P. 26(b)(1); United States v. Int’l Business Machine Corp., 66 F.R.D. 180 (S.D.N.Y. 

1974). Air France’s argument is premature and involves issue of admissibility of 

evidence at trial rather than discovery. A party cannot thwart discovery on disputed 

pleadings merely by stating in request to a deposition notice that they aren’t going to 

contest liability. Moreover, one has to seriously examine that party’s motives for a 

sudden admission of liability – and that examination can only occur in the discovery 

stage. What significantly changed between Air France’s Answer, where it denied any 

liability and the present motion? 

 

3

 See also, Kidwiller v. Progressive Paloverde Insurance Co., 192 F.R.D. 193, 200 (N.D.W. Va. 2000), where a 

defendant objected to discovery on the ground that it was not related to a claim that plaintiff must prove and the 

court found that the defendant "confuses the distinction between relevance as defined and applied between discovery 

and evidence." 

7 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.74 Filed 12/11/09 Page 16 of 22
Defendant has cited to no specific harm that would befall it if the testimony of its 

corporate representatives were to be taken with respect to the facts and circumstances 

surrounding Plaintiff’s injury. Even if the court finds good cause, a balance must still be 

struck between allowing discovery in a case against the relative burdens of discovery. In 

re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Lit., 669 F2d 620, 

623 (10th Cir. 1982). Air France is attempting to eliminate all discovery from its 

corporate representatives – including those with factual information regarding. Surely, 

what Air France is attempting to do here – by asking this court to not permit depositions 

of any of its witnesses is to essentially eliminate any contextual discussion of how this 

accident occurred and the testimony of any of its employee witnesses to the events while 

still reserving the right to minimize, or even disclaim Mr. Sud’s injuries and losses. 

Air France has intimated that its witnesses should be spared the undue expense 

and burden of appearing in our judicial district for their depositions – notwithstanding the 

fact that it purposefully avails itself of this forum - conducting systematic and continuous 

business in the Eastern District of Michigan. Numerous courts have found that the 

deposition of a corporate representative may take place in the fora of the litigation rather 

than the principal place of business of the defendant. Additionally, the decision as to 

which party shall pay transportation and related expenses in deposing the witness is 

within the court's sound discretion. Gibson v. International Freighting Corp., 8 F.R.D. 

487 (E.D. Pa. 1947), aff'd 173 F.2d 591 (3d Cir. 1949). The facts and circumstances of 

each individual case determine how the court will exercise this discretion. Sowers v. 

General Motors Corp., 16 F.R.D. 562 (E.D.Pa.1954). Air France can transport its 

8 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.75 Filed 12/11/09 Page 17 of 22
involved employee-witnesses without direct cost. Alternatively, Air France can build 

their flight attendant- witnesses work schedules around the time set for a deposition. 

The court is essentially charged with balancing the interests of the parties. Where a 

party is in a unique position, be it financially or otherwise, to deliver its representatives to 

the forum district for a deposition, courts have ruled that the party with the ability should 

do same. This is especially true where the defendant is an airline and can transport the 

witness to the situs of the deposition without additional cost. Air France/KLM operate a 

robust worldwide flight schedule. See, Schultz v. Koninklijke Luchtvaart Maatschappij 

N.V. KLM Royal Dutch Airlines Holland, 21 F.R.D 20 (E.D. N.Y. 1957), citing to Supine 

v. Air France, 21 F.R.D. 42, 42-44, (E.D. N.Y. 1955), where the court, in a case arising 

out of an air carrier accident in Shannon, Ireland, ordered KLM to produce its employees 

for their deposition in New York (the forum of the lawsuit) rather than in the Netherlands 

as requested by KLM. Similarly, in Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 97 

(D.C.N.Y.1968), the court, in a lawsuit alleging product liability by the defendant aircraft 

manufacturer, held that the depositions of two employees who participated in the accident 

investigation (the accident occurring in Canada) could be conducted at counsel’s office in 

New York, despite the defendant’s principal place of business being Long Beach, 

California. The court stated, “[i]t would appear that defendant is most able to bear the 

expense of the trip and, similarly, would be the party most able to obtain the least 

expensive transportation rates.” 

 Moreover, the location of counsel and the number of people required to travel can 

also be important in balancing the issues present. Custom Form Manufacturing, Inc. v. 

Omron Corp.,196 F.R.D. 333, 337 (D.C. Ind. 2000). Both Air France and Mr. Sud 

9 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.76 Filed 12/11/09 Page 18 of 22
employ counsel who practice law and maintain their primary offices in the Eastern 

District. Additionally, Plaintiff resides in the district and has the right to attend the 

deposition of any witness in his lawsuit, making it burdensome for him to incur the 

expenses of travel. Contrast that with the routine established by Air France employees 

who customarily fly from/to Detroit, Michigan and whose employer operates daily flights 

from that airport. If Air France seeks to do business and avail itself of our economy, than 

the least it could be expected to do would be to produce its employee witnesses in this 

forum. 

C. Air France’s Witnesses Include Factual Witnesses. 

Even if Plaintiff were to accept the concession or waiver of Air France, at this 

point, that they will not contest liability, Air France still seeks to prevent Plaintiff from 

taking the depositions of any of its employees, including those who witnessed the event 

and its aftermath. In its Rule 26(a)(1) Initial Disclosures, Air France nominates the 

Cabin Purser, Philippe Maquarie as likely to have discoverable information, on the 

subjects of “[e]vents surrounding the alleged incident, nature and extent of the alleged 

injury, and the actions taken after the alleged incident.” Defendant’s Rule 26(a)(1) Initial 

Disclosures, Exhibit 3. 

Defendant’s accident report was completed and signed by another Air France 

employee, Jacque Lafitte (sp), who is also likely to have information relevant to both 

liability and damages. Plaintiff is entitled to take the depositions of these individuals 

who may have relevant information concerning this event and at a very minimum, garner 

testimony in support of his claims. 

 

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III. Conclusion and Relief Requested 

Plaintiff respectfully requests that a written Opinion and Order be issued denying the 

issuance of a protective order and permitting Plaintiff to conduct the depositions of the 

Air France corporate designees. 

Respectfully Submitted, 

 MARK KELLEY SCHWARTZ, P.C.

 

 s/ Mark Kelley Schwartz 

 By: Mark Kelley Schwartz (P48058) 

 29201 Telegraph Road, Ste 330 

 Southfield, MI 48034 

 Tel: (248) 353-4000 

Facsimile: (248) 353-4005 

 Email: mks@mkslawfirm.com 

Dated: December 11, 2009 

11 

Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.78 Filed 12/11/09 Page 20 of 22
CERTIFICATE OF SERVICE 

I hereby certify that on December 11, 2009, I electronically filed the foregoing paper with the 

Clerk of the Court using the ECF system which will send notification of such filing to the 

following: SCOTT R. TORPEY & WILLIAM D. ADAMS and I hereby certify that I have 

mailed by United States Postal Service the paper to the following non-ECF participants: 

CHRISTOPHER G. KELLY, JUDITH NEMSICK 

Respectfully Submitted, 

 MARK KELLEY SCHWARTZ, P.C.

 

 /s/ Mark Kelley Schwartz 

 By: Mark Kelley Schwartz (P48058) 

 29201 Telegraph Road, Ste 330 

 Southfield, MI 48034 

 Tel: (248) 353-4000 

Facsimile: (248) 353-4005 

 Email: mks@mkslawfirm.com 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.79 Filed 12/11/09 Page 21 of 22
INDEX OF EXHIBITS

Exhibit No.

Notice of Taking Depositions Pursuant to 

Fed. R. Civ. P. 30(b)(6) – Duces Tecum 1 

Proposed Stipulation on Liability and Discovery Matters 2 

Defendant’s Rule 26(a)(1) Initial Disclosures 3 

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Case 2:08-cv-14245-SJM-DAS ECF No. 17, PageID.80 Filed 12/11/09 Page 22 of 22