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E-Alert Case Updates

Employer Ordered that it Could Not Depose Claimant Within State

Equal Employment Opportunity Comm. v. Endoscopic Microsurgery Assoc., P.A.
No. JKB-10-2693 (D. Md. 2011)

by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (

The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against Endoscopic Microsurgery Associates, P.A., (“Endoscopic Microsurgery”), its CEO and owner Dr. Mark Noar, and its practice administrator, Martin Virga. The Complaint alleged that Endoscopic Microsurgery subjected various female employees to a sexually hostile and retaliatory work environment. One of the claimants, Julie Johnson (“Ms. Johnson”), resided in South Carolina. Ms. Johnson was not a formal party to the case; however, Endoscopic Microsurgery served a subpoena upon her requiring her to appear in Baltimore, Maryland for a deposition. The issue presented to the court was whether Endoscopic Microsurgery could compel a claimant, who is not a formal party to a case, to appear in the forum jurisdiction for a deposition.

In the past, the EEOC has attempted to produce out-of-state claimants in Maryland for depositions. In this circumstance, however, the EEOC argued that requiring Ms. Johnson to appear in Baltimore, Maryland for a deposition would result in extreme hardship. Additionally, the EEOC argued that the Federal Rules of Civil Procedure do not require EEOC claimants to appear in the forum jurisdiction when they reside more than 100 miles from the forum. Thus, the EEOC requested that the court order Endoscopic Microsurgery to depose Ms. Johnson within 100 miles of her residence or alternatively, via videoconference. In response, Endoscopic Microsurgery argued that Ms. Johnson should have been compelled to provide deposition testimony in Maryland because she joined the lawsuit and was seeking compensation for her alleged damages.

United States District Court Magistrate Judge, James K. Bredar, relied upon a recently-drafted opinion by Magistrate Judge Paul Grimm of the United States District Court for the District of Maryland, EEOC v. Denny’s, Inc., Civil No. WDQ-06-2527, Order July 17, 2009, aff’d, 2009 WL 324, 6940 (D. Md. Oct. 2, 2009). In that opinion, Judge Grimm concluded that the EEOC claimants were not formal parties to the litigation and that they did not “choose” the District of Maryland to be the case’s forum. Furthermore, Judge Grimm focused on FED. R. CIV. P. 26(b)(2)(C) and held that, even if the EEOC claimants in that case were parties to the litigation, the cost-benefit balancing factors of that rule still would militate in favor of deposing the out-of-state claimants via telephone or videotape, rather than in person. Judge Bredar found Judge Grimm’s rationale equally applicable in the instant case and adopted it.

The court ordered that Endoscopic Microsurgery had the option of either having its counsel travel to South Carolina and take an in-person deposition within 100 miles of Ms. Johnson’s residence, or alternatively, arranging for a videoconference deposition. Otherwise, Endoscopic Microsurgery’s subpoena to take Ms. Johnson’s deposition was unenforceable.