Li v. Norwich Univ.

Li v. Norwich Univ., No. 577-10-18 Wncv (Tomasi, J., Sept. 12, 2019).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 577-10-18 Wncv
Xingbo Li,
Plaintiff
v.
Norwich University,
Defendant
Opinion and Order on Plaintiff’s “Motion to Appear Remotely”
Plaintiff has filed a motion to allow him to appear remotely at his deposition
and the mediation in this case. He cites the fact that he is in China, and it would be
a hardship to attend those events in Vermont. Defendant argues that Plaintiff
chose the forum and that his deposition will involve a large number of documents,
which would be difficult to handle remotely. Further, it argues that it has a need to
assess Plaintiff’s demeanor. The Court makes the following determinations.
Though not styled as a motion for a protective order, the Court agrees with
Defendant that Vt. R. Civ. P. 26(c) provides the proper lens through which to assess
the request. In general, the person noticing the deposition selects the location, and
a plaintiff who avails herself of a jurisdiction should be subject to deposition in that
location. 8A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L.
Marcus, Federal Practice and Procedure § 2112 (3d ed.); Dalmady v. Price
Waterhouse & Co., 62 F.R.D. 157, 158–59 (D.P.R. 1973). The rule is not inflexible,
however. Alternative arrangements may be made when the plaintiff establishes
that travel to the forum state for the deposition would present a serious hardship,
such as in the case of physical infirmities. See Hyam v. Am. Export Lines, Inc., 213
F.3d 221, 222–23 (2d Cir. 1954). A showing of good cause for a protective order
changing the location of a deposition requires the plaintiff to present specific, rather
than generalized, information about the nature of her hardship. See Vt. R. Civ. P.
26(c); Cobell v. Norton, 213 F.R.D. 43, 47 (D.D.C. 2003); Dalmady, 62 F.R.D. at 159.
In this case, Plaintiff has made no such showing. First, his request is not
supported by an affidavit providing proof of any proffered “undue burden” under
Rule 26(c). Second, other than being in China, the Court cannot determine the level
of hardship involved. Third, to the extent the health of Plaintiff’s parents is a
concern, the Court cannot assess whether other family members may be able to
provide coverage for Plaintiff in his absence. Fourth, the Court cannot assess
whether some midpoint location for the deposition and mediation might be a
possible remedy if Plaintiff were to establish good cause for a protective order.
In sum, Plaintiff’s present motion comes up short of the type of proof needed
to obtain a protective order. The Court’s ruling is without prejudice, however.
Plaintiff may renew the motion with appropriate evidence. The Court also
encourages counsel to confer to determine whether other solutions may exist to
issues raised by Plaintiff.
Plaintiff’s motion is denied without prejudice.
Electronically signed on September 11, 2019 at 04:10 PM pursuant to
V.R.E.F. 7(d).
________________________
Timothy B. Tomasi
Superior Court Judge