GLASSWALL, LLC, Plaintiff, v. AGC FLAT GLASS NORTH AMERICA, INC., and POMA GLASS & SPECIALITY WINDOWS, INC., Defendants No. 3:17-CV-332-HSM-DCP United States District Court, E.D. Tennessee, Northern Division Filed July 20, 2018 Counsel James P. Cinque, Pro Hac Vice, Cinque & Cinque, PC, New York, NY, Jesse Dean-Kluger, Pro Hac Vice, Jesse Dean-Kluger, P.A., Miami, FL, W. Morris Kizer, Gentry, Tipton & McLemore, PC, Knoxville, TN, for Plaintiff. Michael James Dumitru, Richard C. Rose, Miller & Martin, PLLC, Chattanooga, TN, for Defendants Poplin, Debra C., United States Magistrate Judge MEMORANDUM AND ORDER *1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02. Now before the Court is Defendants' Motion to Compel [Doc. 62] and Plaintiff's Motion to Quash Rule 30(b)(6) Deposition Notice of Plaintiff Glasswall and for Protective Order and Memorandum Thereon [Doc. 67] (“Motion to Quash”). The parties appeared before the Court on July 11, 2018, for a motion hearing. Attorney W. Morris Kizer appeared on behalf of Plaintiff. In addition, Attorney Jesse Dean-Kluger appeared via telephone on behalf of Plaintiff. Attorneys Richard Rose and Michael Dumitru appeared on behalf of Defendants. Accordingly, for the reasons set forth below, Defendants' Motion to Compel [Doc. 62] is GRANTED IN PART AND DENIED IN PART and Plaintiff's Motion to Quash [Doc. 67] is DENIED. I. POSITIONS OF THE PARTIES The Court will summarize the Motions in the order in which they were filed. A. Defendants' Motion to Compel Pursuant to Federal Rule of Civil Procedure 37, Defendants request [Doc. 62] that the Court compel Plaintiff to: (1) produce electronically-stored information (“ESI”) pursuant to the parties' agreed-upon protocol; (2) supplement its amended initial disclosures and its response to Defendants' interrogatory number 7, relating to Plaintiff's calculation of damages; and (3) respond to Defendants' second requests for production of documents numbers 1-4 and 7-9, relating to Plaintiff's claim for loss of business damages. Defendants also request their reasonable attorney's fees incurred in filing the instant Motion. With respect to ESI, Defendants assert that the parties agreed to make productions by April 20, 2018, but Plaintiff did not produce any documents. With respect to supplementation, Defendants argue that Plaintiff's current disclosures and response to interrogatory number 7 lack any specificity regarding the categories and quantities of Plaintiff's alleged damages. Defendants state that Plaintiff provided an inflated damages number that was based on an estimate of four categories of damages. Finally, Defendants submit that their requests for production of documents pertain to Plaintiff's financial records, which are relevant because Plaintiff claims that it lost business opportunities and contracts as a result of Defendants' actions. Defendants maintain that they are entitled to Plaintiff's financial statements, offers to purchase Plaintiff, and documents relating to the eventual sale of Plaintiff to a third-party. Plaintiff responds [Doc. 63] that it has substantially complied with the ESI search and that the remaining documents will be produced by June 1, 2018. Further, Plaintiff asserts that it amended its initial disclosures to adequately identify its claimed damages. Specifically, Plaintiff disclosed five categories of damages: (1) legal fees incurred in defending the Monadnock claims (“Monadnock Action”); (2) out-of-pocket expenditures; (3) the arbitration award in the Monadnock Action; (4) interest and prejudgment interest in the Monadnock Action; and (5) legal fees and damages that may be awarded against Plaintiff in a case pending in the Eastern District of New York (“New York Action”). *2 With respect to the legal fees incurred in the Monadnock Action, Plaintiff asserts that the parties previously agreed that it only needed to provide the line item figures for each attorney, which has already been produced. In addition, Plaintiff states that it provided Defendants with its out-of-pocket expenditures when it produced a 162-page expenditure report. Plaintiff explains that it provided a copy of the arbitration award in the Monadnock Action to support its third category of damages. Plaintiff continues that the fourth category of damages is interest on the arbitration award, which is simply a computation. Further, Plaintiff asserts that it cannot produce a computation with respect to the fifth category of damages because the New York Action is still pending. Lastly, Plaintiff states that the requested financial documents are irrelevant in light of its amended initial disclosures. Plaintiff maintains that it deleted its request for damages with respect to loss of business and loss of business opportunities. Defendants filed a Reply [Doc. 66], asserting that Plaintiff has failed to produce any documents to support its damages claim for legal fees. In addition, Defendants acknowledge that Plaintiff produced an expenditure report, but they state that the expenditure report includes costs Plaintiff would have incurred regardless of Defendants' performance. Defendants assert that they do not have sufficient information to calculate Plaintiff's claimed interest damages. Finally, Defendants state that Plaintiff should be required to produce financial records relating to loss of business damages because such financial records may bear upon Plaintiff's claimed damages and whether such damages were actually incurred. B. Plaintiff's Motion to Quash Plaintiff's Motion [Doc. 67] requests that the Court quash Defendants' Rule 30(b)(6) Notice and order that the deposition of Plaintiff's corporate representative be held in Miami, Florida. Plaintiff states that it initially brought this lawsuit in Florida and that many of the actions between the parties occurred in Florida. Plaintiff further contends that courts adhere to the general presumption that the deposition of a corporate agent or officer should ordinarily be taken at the location of the corporation's principal place of business. Plaintiff asserts that it would be less costly to conduct the deposition in Miami because the deponent and Plaintiff's counsel both live in Florida. In addition, Plaintiff asserts that the convenience factor weighs in favor of taking the deposition in Miami. Plaintiff explains that the deponent is a Miami resident who is no longer Plaintiff's employee. Finally, Plaintiff asserts that this action has no connection to the present forum. In the alternative, Plaintiff requests that the Court enter an order abating the deposition, pending the resolution of Plaintiff's Motion to Transfer. Defendants object [Doc. 68], asserting that Plaintiff's Motion is filled with stereotypical and conclusory statements insufficient to override the presumption in the Sixth Circuit that a corporate plaintiff be deposed where the litigation is pending. Defendants maintain that there exists a presumption that a plaintiff should be deposed in the forum where the litigation is pending. Defendants argue that Plaintiff chose to litigant all claims arising from the agreement in the Eastern District of Tennessee. Further, Defendants contend that the principal place of business presumption generally applies to corporate defendants. Finally, Defendants argue that Plaintiff fails to demonstrate why a deposition in the Eastern District of Tennessee would cause undue or unreasonable burden on Plaintiff. II. ANALYSIS The Court has considered the parties' filings and the oral arguments presented at the hearing. Accordingly, for the reasons more fully explained below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Compel [Doc. 62] and DENIES Plaintiff's Motion to Quash [Doc. 67]. A. Defendants' Motion to Compel *3 As mentioned above, Defendants move the Court to compel Plaintiff to produce the following: (1) ESI; (2) supplementation with respect to Plaintiff's five categories of damages as set forth in its amended initial disclosures; and (3) financial information relating to Plaintiff's loss of business damages. During the hearing, the parties represented to the Court that Plaintiff had produced the ESI, and as such, Defendants' request to compel the production of ESI was moot. In addition, Plaintiff stated that it is no longer pursuing damages related to the loss of its business. As a result, Defendants stated that they no longer needed such documents regarding loss of business. During the hearing, the Court also addressed whether Plaintiff is required to supplement its discovery relating to its five categories of damages. As an initial matter, the Court observes that pursuant to the obligations under Rule 26(a)(1)(A)(iii), a party's initial disclosures must include “a computation of each category of damages claimed by the disclosing party.” (Emphasis added). Plaintiff's initial and amended disclosures simply provide the category of damages, without the required computation. At the hearing, however, the parties were able to agree to the production of documents. Specifically, with respect to the legal fees incurred in the Monadnock Action, Defendants argued that Plaintiff provided a summary report of attorney's fees but that the report does not include any details, such as the work performed and the billing rate. Plaintiff stated that it had an agreement with former defense counsel that a summary report would be sufficient. Plaintiff continued, however, that it could provide redacted invoices. Defendants agreed that redacted invoices were acceptable. In addition, Plaintiff also agreed to provide the interest amount on the award in the Monadnock Action. Accordingly, the Court ORDERS Plaintiff to provide Defendants a copy of the attorney invoices, which Plaintiff may redact to protect attorney-client information, incurred in the Monadnock Action and incurred to date in the New York Action. The Court further ORDERS Plaintiff to produce the interest calculation on the award in the Monadnock Action. Further, with respect to its out-of-pocket damages, Plaintiff argued that it had already produced such damages by providing Defendants a copy of an expenditure report. Defendants responded that the expenditure report includes all costs, including costs that do not relate to Defendants' alleged deficient performance. In response, Plaintiff stated it provided Defendants with a budget that they could use to determine out-of-pocket damages by subtracting the numbers in the expenditure report from the numbers in the budget. Later, Plaintiff agreed to provide that calculation to Defendants. Accordingly, the Court ORDERS Plaintiff to provide Defendants with its calculation and any documents in support thereof with respect to out-of-pocket damages in accordance with its requirements under Rule 26(a)(1)(A)(iii). Finally, Defendants have requested their attorney's fees incurred in filing the Motion. If the court grants a motion to compel or the discovery is provided after the motion was filed, the court must issue an award of the reasonable expenses incurred in making the motion, unless the movant failed to confer in good faith before filing the motion, the opposing party's objection was substantially justified, or other circumstances make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5). The Court declines to award attorney's fees at this time because the parties genuinely disputed whether Plaintiff's responses were deficient. See Fed. R. Civ. P. 37(a) Advisory Committee Notes to 1970 Amendment (where “the dispute over discovery is genuine, though ultimately resolved one way or the other by the court ... the losing party is substantially justified in carrying the matter to court.”). Further, the Court observes that Defendants offered no evidence as to their costs incurred and whether such costs were reasonable. The Court, however, ADMONISHES Plaintiff that future discovery deficiencies that result in motion practice may warrant an award of attorney's fees. Accordingly, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Compel [Doc. 62] B. Plaintiff's Motion to Quash *4 Plaintiff moves to quash Defendants' Rule 30(b)(6) Deposition Notice pursuant to Rule 26(c), or in the alternative, abate the deposition pending resolution of Plaintiff's Motion to Transfer Due to Improper Venue. At the hearing, Plaintiff stated that it was going out of business and that its Rule 30(b)(6) witness is a former employee. Plaintiff asserted that it did not have the ability to compel its former employee to attend the deposition in Tennessee. Plaintiff stated that all other depositions will occur in Florida and that the Rule 30(b)(6) witness's deposition should also occur in Florida. “Pursuant to Federal Rule of Civil Procedure 30(b)(1), the party noticing the deposition initially selects the deposition's location” Scooter Store, Inc. v. Spinlife.com, LLC, No. 2:10-CV-18, 2011 WL 2118765, at *1 (S.D. Ohio May 25, 2011). Under Rule 26(c), “A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.” Fed. R. Civ. P. 26(c)(1). Upon a showing of good cause, the “court may issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including “specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1)(B). As summarized above, Plaintiff asserts that the Court should adhere to the general presumption that the corporate representative's deposition should occur at the principal place of business, while Defendants contend that a presumption exists that a plaintiff should be deposed in the forum in which the litigation is pending. The Court finds the decision in Scooter Store, which both parties cited in their brief, instructive. With respect to the latter presumption (i.e., the deposition takes place in the forum in which litigation is pending), the court in Scooter Store noted that “this presumption wanes, where, as here, the plaintiff is not litigating in his choice of forum as a consequence of a defendant's successful motion to transfer venue pursuant to 28 U.S.C. § 1404(a).” Scooter Store, 2011 WL 2118765, at *2. With respect to conducting the corporate representative's deposition at its principal place of business, the court explained that courts “have often loosely referred to it as a ‘presumption,’ ” but courts have not attempted to “identify the type of presumption with any precision.” Id. (other citations omitted). The court characterized the argument that the corporate representative's deposition should take place at the principal place of business as unpersuasive. Id. Instead, the court explained, “A motion for a protective order not to have a deposition at a particular site, or to compel deposition in a particular location, is considered by reviewing three factors of the cost, convenience, and litigation efficiency of the designated location.” Id. Accordingly, the undersigned will follow suit and will analyze whether the cost, convenience, and litigation efficiency of taking the deposition in Chattanooga, as opposed to Miami, presents an undue burden or expense pursuant to Rule 26(c). Here, the Court finds that Plaintiff has not established good cause to quash the deposition and to enter a protective order. See In re CareSource Mgmt. Grp. Co., 289 F.R.D. 251, 253 (S.D. Ohio 2013) (“The party seeking to quash a subpoena bears the burden of proof.”). Specifically, the Court finds that Plaintiff has not set forth any facts as to how the deposition will present an undue burden or expense. With respect to cost, Plaintiff argues that the deponent and Plaintiff's counsel reside in Miami so taking the deposition in Miami would be less costly. Plaintiff, however, has local counsel. If the deposition were to occur in Miami, defense counsel would have to travel. If the deposition were to occur in Chattanooga, the deponent would have to travel. Someone will have to travel for this deposition. Plaintiff has not articulated any facts regarding the costs of taking the deposition in this district. Therefore, the Court finds Plaintiff has not met its burden. *5 With respect to convenience, Plaintiff argues that its corporate representative is no longer an employee and any disruptions due to extraneous travel for the deposition would be incurred by the employee. The Court has carefully considered Plaintiff's argument, but again Plaintiff offers no facts to justify its position. As Defendants emphasized in their brief, Plaintiff does not identify the witness, nor does Plaintiff discuss how such travel will result in an undue burden on the deponent. Plaintiff merely states that the deponent will have to engage in “extraneous travel.” This argument is the type of general stereotypical argument that does not establish good cause under Rule 26(c). Finally, with respect to litigation efficiency of the designated location, Plaintiff asserts that all key witnesses and documents are located in Florida. Again, Plaintiff does not identify these key witnesses or documents. The Court declines to find good cause to enter a protective order based on such conclusory statements. As a final matter, Plaintiff requests, in the alternative, that the Court enter an order, abating the deposition pending resolution of its Motion to Transfer. Plaintiff, however, has not provided any legal authority for its argument. Accordingly, the Court DENIES Plaintiff's Motion to Quash [Doc. 67].[1] III. CONCLUSION Accordingly, for the reasons explained above, Defendants' Motion to Compel [Doc. 62] is GRANTED IN PART AND DENIED IN PART and Plaintiff's Motion to Quash Rule 30(b)(6) Deposition Notice of Plaintiff Glasswall and for Protective Order and Memorandum Thereon [Doc. 67] is DENIED. Plaintiff SHALL provide the above discovery within fourteen (14) days of filing the instant Memorandum and Order. The Court further INSTRUCTS the parties to work together to agree on a mutual date for the Rule 30(b)(6) deposition. IT IS SO ORDERED. ENTER: Footnotes [1] During the hearing, defense counsel stated that he was agreeable to taking the deposition in Knoxville at Plaintiff's local counsel's office, as opposed to Chattanooga, the location stated in the notice. The parties are instructed to work together to determine whether the deposition should occur in Chattanooga or Knoxville.