Duvall v. Arizona Department of Child Safety ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Honor Duvall, et al., No. CV-21-00167-PHX-ROS 10 Plaintiffs, ORDER 11 v. 12 Arizona Department of Child Safety, et al., 13 Defendants. 14 15 On December 20, 2021, the parties filed a notice of discovery dispute regarding the 16 location of Plaintiffs’ depositions.1 (Doc. 40). Plaintiffs currently reside in Texas and they 17 request the depositions be conducted via videoconferencing or defense counsel travel to 18 Texas. Defendants believe Plaintiffs should appear in Phoenix for in-person depositions. 19 A court “has wide discretion to establish the time and place of depositions.”2 Hyde 20 & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). Courts generally begin with a 21 “presumption that a plaintiff should submit to a deposition in the forum district.” 22 Huddleston v. Bowling Green Inn of Pensacola, 333 F.R.D. 581, 584 (N.D. Fla. 2019). 23 That presumption can be overcome upon a showing of “good cause,” the standard 24 applicable to protective orders in general. Id. To establish good cause meriting a protective 25 1 The parties’ discovery dispute submission does not comply with the Court’s procedures. Future disputes should be drafted in compliance with those procedures available on the 26 Court’s website. 2 Citing decisions by Arizona state courts, Plaintiffs argue the Court lacks the authority to 27 compel their attendance at depositions in Phoenix. (Doc. 40 at 5-6). Regardless of Arizona law, it has long been established that, in federal court, an out-of-state plaintiff can be 28 required to appear in the forum state for a deposition. Collins v. Wayland, 139 F.2d 677, 678 (9th Cir. 1944). 1 order, Plaintiffs “bear[] the burden of showing specific prejudice or harm will result if no 2 protective order is granted.” Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 3 1206, 1210-11 (9th Cir. 2002). 4 Here, Plaintiffs argue traveling to Phoenix will require they risk COVID-19 5 infection and shoulder “financial, work, and childcare burdens.” (Doc. 40 at 8). COVID- 6 19 presents a legitimate basis for parties to conduct virtual proceedings to the extent 7 possible. But Plaintiffs’ professed concern over the risk of infection is not supported by 8 their own actions. First, Plaintiffs admit they are not vaccinated and have not provided any 9 reason why they cannot be vaccinated. Second, Plaintiffs filed this lawsuit in November 10 2020. (Doc. 1-3 at 2). At that time, Plaintiffs resided in Oklahoma. (Doc. 1-3 at 5). After 11 filing, Plaintiffs moved to Texas. Plaintiffs have not explained why their move between 12 Oklahoma and Texas did not present an unacceptable risk while travel between Texas and 13 Arizona does. 14 As for the alleged financial, work, and childcare burdens, Plaintiffs have not 15 established those burdens are sufficient to merit a protective order. Litigation often 16 imposes financial burdens and Plaintiffs have not established how the cost of traveling to 17 Phoenix would be uniquely burdensome to them. Moreover, Plaintiffs will need to take 18 time off work and arrange childcare regardless of where the depositions occur. To lessen 19 the need for childcare, Defendants have offered to schedule the depositions such that 20 Plaintiffs can travel separately and one of them can remain home with the children. 21 Plaintiffs do not explain why such an arrangement is insufficient to alleviate any childcare 22 issues. 23 Plaintiffs have not established the Court should depart from the default rule 24 requiring they appear in the forum they chose for this litigation. The parties should work 25 together to arrange mutually acceptable dates for the depositions. 26 Accordingly, 27 /// 28 /// 1 IT IS ORDERED Plaintiffs’ depositions shall occur in Phoenix, Arizona. 2 Dated this 21st day of December, 2021. 3 fo - A —— . 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-