United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION FOR PROTECTIVE
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Mandarich Law
Group, LLP (“Mandarich”)'s Motion for
Protective Order. Dkt. #16. Mandarich moves for a protective
order preventing it from being required to produce Ryan Vos,
its 30(b)(6) representative, for a deposition in Washington
State. Id. Instead, Mandarich proposes that this
deposition take place in California where it is located and
where Mr. Vos is a resident. Id. According to
Mandarich's briefing, Mr. Vos “does not routinely
travel for business purposes.” Id. at 2.
Mandarich has declined to pay for Plaintiff Thomas
Weinstein's counsel to travel to California, and suggests
that deposition could occur by video conference. See
Id. at 3-4. The Court notes that Ryan Vos is also
Mandarich's sole counsel of record in this case.
See Dkt. #6.
Weinstein argues it would be a financial burden to pay for
his counsel to travel to California for the deposition. Dkt.
#17. He notes that, under Washington Rule of Professional
Conduct 1.8, such a cost would ultimately be his burden as
the client. He submits a declaration informing the Court of
his financial status. He states that he makes $19.50 per
hour, has minimal savings, lives paycheck to paycheck, and
that his pregnant wife was injured on the job and is
currently on disability. Dkt. #17-2.
party or any person from whom discovery is sought may move
for a protective order in the court where the action is
pending - or as an alternative on matters relating to a
deposition, in the court for the district where the
deposition will be taken.” Fed.R.Civ.P. 26(c)(1).
“The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense…”
Id. “If a motion for a protective order is
wholly or partly denied, the court may, on just terms, order
that any party or person provide or permit discovery.”
Fed.R.Civ.P. 26(c)(3). “The decision to issue a
protective order rests within the sound discretion of the
trial court.” Seiter v. Yokohama Tire Corp.,
2009 WL 2461000, *1 (W.D. Wash. 2009).
the absence of special circumstances, ‘a party seeking
discovery must go where the desired witnesses are normally
located.'” Clairmont v. Genuity, Inc., No.
C02-1876L, 2004 WL 2287781, at *1 (W.D. Wash. Mar. 26, 2004)
(quoting United States v. $160, 066.98 from Bank of
America, 202 F.R.D. 624, 627 (S.D.Cal.2001)). “A
plaintiff's claim of financial hardship does not
constitute special circumstances, at least when… that
claim is not accompanied by other exceptional
circumstances.” Id. (citing General
Leasing Co. v. Lawrence Photo-Graphic Supply, Inc., 84
F.R.D. 130, 131 (W.D. Mo. 1979)). Factors to consider when
determining whether another location for the deposition is
location of counsel in the forum district; (2) number of
corporate representatives to be deposed; (3) likelihood of
significant discovery disputes arising which would
necessitate resolution by the forum court; (4) whether the
persons sought to be deposed often engage in travel for
business purposes; and (5) the equities with regard to the
nature of the claim and the parties' relationship.”
Lynch v. Safeco Ins. Co. of Am., No. C13-654-BAT,
2014 U.S. Dist. LEXIS 189107, *9-10 (W.D. Wash. Mar. 14,
2014) (citing Stonebreaker v. Guardian Life Ins.
Co., 820 F.Supp.2d 1096, 1098 (S.D. Cal. 2011). The
expense to the parties and judicial economy are also
considerations. Id. at *10 (citing Cadent Ltd.
v. 3M Unitek, 232 F.R.D. 625, 628-29 (C.D. Cal. 2005)).
A district court has “wide discretion to establish the
time and place of depositions.” Hyde & Drath v.
Baker, 24 F.3d 1162, 1166 (9th Cir. 1994).
case presents the exceptional circumstance of Mandarich's
sole attorney of record being named as the 30(b)(6)
deponent. Mr. Vos, although licensed to practice law
in the State of Washington, resides in California. He states
in briefing that he does not often engage in travel for
business purposes, however he is representing a client in
this district and could easily be required to travel here for
a hearing or the trial. Another exceptional circumstance is
the nature of Defendant's business. The Court is
convinced by the evidence submitted that Defendant routinely
avails itself of Washington State courts in its business,
including in prior legal action against Mr. Weinstein.
See Dkts. #5-1 and #17-1. This leads the Court to
doubt the credibility of Mr. Vos' unsubstantiated
statement that he does not routinely travel for business.
While Mr. Weinstein's claim of financial hardship does
not alone constitute special circumstances, combined with
these “other exceptional circumstances” it weighs
as a consideration before the Court. Mr. Weinstein has
presented credible evidence of an undue hardship to pay for
his counsel to travel to California for a deposition. Indeed,
his inability to pay a few thousand dollars is a fundamental
background fact in this action. See Dkt. #1-3. Given
the nature of the claim and the parties' relationship,
equity tips in favor of Plaintiff.
all of the above, and having reviewed the relevant briefing,
the declarations and exhibits attached thereto, and the
remainder of the record, the Court hereby finds and ORDERS
that Defendant Mandarich's Motion for Protective Order
(Dkt. #16) is DENIED. The deposition should occur as
requested by Plaintiff. The Court declines to strike any
arguments in Defendant's briefing.
 The Court also notes how Mr. Vos
acting as Mandarich's sole counsel and its
30(b)(6) witness may eventually lead to problems under
Washington Rule of Professional Conduct 3.7, even if it does
not violate the rule. Comment 1 to RPC 3.7 states,
“[c]ombining the roles of advocate and witness can
prejudice the tribunal and the opposing party and can ...