Gee v. Suntrust Mortg., Inc.

This case was before the court on the defendant’s motion to compel the three named plaintiffs and twenty-five opt-in plaintiffs who live in twenty-five different cities across the country to appear for depositions in San Francisco or in three other cities of its choice.  The defendant argued that the deponents were required to appear in San Francisco, which is where the FLSA putative collective action was filed, because they have not established good cause for appearing elsewhere.  Prior to its motion, the defendant offered to take the depositions either in San Francisco or in three other cities it claims would be more convenient to the deponents.  The plaintiffs had offered to produce the deponents in 14 different cities, or alternatively suggested that the depositions be taken by video conference.  Plaintiffs opposed the motion, arguing that traveling to any of the cities selected by the defendant would be financially burdensome for them, and that requiring them to do so despite this burden would contradict the purpose of joining a collective action brought under the FLSA. Holding that the financial concerns expressed by the plaintiffs constituted good cause for excusing the deponents from traveling to the cities selected by the defendant for the depositions, the court denied the defendant’s motion.

Addressing the parties contentions, the court reasoned:

“One of the chief advantages of opting into a collective action, such as the one brought by Plaintiffs, is that it “lower[s] individual costs to vindicate rights by the pooling of resources.” Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 179, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Here, this advantage would be significantly reduced or even eliminated if the proposed deponents are required to travel hundreds of miles for their depositions. See, e.g., Bransfield v. Source Broadband Services, LLC, 255 F.R.D. 447, 450 (W.D.Tenn.2008) (rejecting defendants’ argument that opt-in plaintiffs in FLSA collective action must be required to appear for depositions in the forum where action was filed because doing so “would cancel much of the benefit gained by joining in the collective action” and because “the forum was chosen for [the opt-in plaintiffs]”). The Court is not persuaded by Suntrust’s interpretation of the case law cited by Plaintiffs, but even when taking its interpretation at face value, this case meets the criteria for excusing the deponents from appearing in the cities selected by Suntrust, as Suntrust has made no showing that the issues to be covered in the depositions are sufficiently complex to require in-person depositions.

Likewise, Suntrust’s argument that conducting the depositions via videoconference would be detrimental to its ability to question and observe the deponents is unconvincing. Parties routinely conduct depositions via videoconference, and courts encourage the same, because doing so minimizes travel costs and “permits the jury to make credibility evaluations not available when a transcript is read by another.” Fanelli v. Centenary College, 211 F.R.D. 268, 270 (D.N.J.2002) (citations omitted); see also Guillen v. Bank of America Corp., No. 10–cv–05825, 2011 WL 3939690, at *1 (N.D.Cal. August 31, 2011) (“A desire to save money constitutes good cause to depose out-of-state witnesses via telephone or remote means”). Accordingly, Suntrust’s motion is denied.”

Click Gee v. Suntrust Mortg., Inc. to read the entire Order Denying Motion to Compel.