E-Alert Case Updates

United States District Court for the District of Maryland Denies Protective Order Seeking Remote Deposition as Without Good Cause and Prejudicial to Opposing Parties

Webb v. Green Tree Lending Servicing LLC
No. 11-2105 (D. Md. July 16, 2012)
by Wayne Heavener, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Webb v. Green Tree Lending Servicing LLC, Magistrate Judge Paul W. Grimm of the United States District Court for the District of Maryland, denied a Motion for Protective Order by Plaintiff Sandy N. Webb (Plaintiff), requesting that her deposition be taken by telephone.  The Court found that Defendant Green Tree Servicing LLC (Green Tree) and Third Party Defendant Five Brothers Mortgage Company Services and Securing, Inc. (Five Brothers) were entitled to take Plaintiff’s deposition in-person, and in the state of Maryland.  The Court based its ruling upon Plaintiff’s failure to make a showing of good cause, and that the Green Tree and Five Brothers would be unfairly prejudiced by remotely deposing Plaintiff.  Therefore, the Court denied Plaintiff’s Motion, requiring Plaintiff to appear in Maryland for her deposition.

Plaintiff, an attorney proceeding pro se, requested that the Court issue a protective order requiring Green Tree and Five Brothers to take her deposition by telephone.  Plaintiff lived in Oregon, and wanted to avoid travelling to Maryland to participate in the deposition.  According to Plaintiff, Green Tree and Five Brothers failed to avail themselves of prior opportunities to depose Plaintiff.  Plaintiff pointed out that she had already travelled to Maryland for the deposition of a witness and a settlement conference, and argued that she could not financially or logistically afford travelling to the state for her deposition as well.  Plaintiff alleged that Green Tree and Five Brothers were trying to maximize the cost of the litigation as a deterrent to her continuing the suit.  Accordingly, Plaintiff moved for a protective to order to be deposed by phone, but indicated a willingness to be deposed by live video feed.

Both Green Tree and Five Brothers filed Oppositions Plaintiff’s Motion.  Green Tree argued that Plaintiff was required to attend a deposition in Maryland because she had brought her lawsuit in Maryland.  Therefore, absent a showing of good cause, Plaintiff should be required to attend her deposition in her chosen forum state.  Green Tree argued that Plaintiff’s proffered reasons for the protective order were conlcusory because she failed to submit any facts or figures to support her claim that travel would be unduly burdensome.  Furthermore, Green Tree argued that the expense of flying from Oregon to Maryland was minor when compared to the relief Plaintiff was seeking.  Five Brothers concurred in Green Tree’s arguments, and both defendants argued that not having Plaintiff present would be prejudicial to their cases.

The Court agreed with Green Tree and Five Brothers.  The Court looked to Federal Rule of Civil Procedure 26(c), which permits a Court to issue a protective order protecting a party from undue burden upon a showing of good cause.  Fed. R. Civ. P. 26(c).  Accordingly, the Court has the authority to order that a deposition be taken by remote means.  Fed. R. Civ. P. 30(b)(4).  The Court observed that the standard for issuing a protective order is high, requiring more than broad assertions of harm to support a showing of good cause.  In this case, the Court found that Plaintiff’s conclusory statements of expensing large sums of money failed to meet the high bar of showing good cause.  The Court also noted that Plaintiff selected Maryland as the forum for her suit, and therefore should have to attend her deposition in the state.

Additionally, the Court found that issuing a protective order would prejudice Green Tree and Five Brothers.  The Court found that Green Tree and Five Brothers made a particularized showing of prejudice in opposing Plaintiff’s request.  Noting that both Green Tree and Five Brothers had numerous documents they intended to use during Plaintiff’ deposition, the Court found that remote deposition would be both difficult and ineffective.  The Court gave special consideration to the fact that the deposition at issue was that of the Plaintiff, noting that Plaintiff’s deposition would likely include many disputed facts.  As a result, Green Tree and Five Brothers would be disadvantaged in not being able to observe Plaintiff’s demeanor.  Accordingly, the Court denied Plaintiff’s Motion for Protective Order.