*1 Before the Court are Defendants RubCorp, L.L.C. and Brian Field's (sometimes collectively referenced as “RubCorp”) Motion to Compel Deposition of Barry Meakings, Sr. (Dkt. #42) and Motion to Compel Deposition of Barry Meakings, Jr. (Dkt. #43). The Motions request that the Court order the depositions of both Meakings, Sr. and Meakings, Jr., and that the Court sanction Plaintiff Rubaroc, USA, Inc. for failure to appear at properly noticed depositions. Rubaroc filed Responses. (Dkt. #44–45). The Court, having considered Defendants' Motions, Rubaroc's Responses, the record, and the applicable law, GRANTS in part Defendants' Motion to Compel the Deposition of Barry Meakings, Jr. (Dkt. #43) and DENIES Defendants' Motion to Compel the Deposition of Barry Meakings, Sr. (Dkt. #42). The Court DENIES Defendants' requests for sanctions.

I. Background

On August 29, 2019, RubCorp served two notices of deposition on Rubaroc. One set the deposition of Barry Meakings, Jr. for September 12, 2019, and the other set the deposition of Barry Meakings, Sr. for September 13, 2019. Days before the depositions were to take place, Rubaroc filed a Motion for Protective Order as to Meakings, Sr. and a Motion for Protective Order as to Meakings, Jr. The motions requested that the Court prevent both of the depositions.

After the deposition dates passed, RubCorp filed the instant Motions to Compel, informing the Court that neither Meakings, Sr. nor Meakings, Jr. appeared at their depositions and requesting that the Court compel the depositions and sanction Rubaroc for failure to appear at properly noticed depositions. Rubaroc filed two Responses, agreeing to schedule the deposition of Meakings, Jr. at a mutually agreeable time and place, and arguing that it should not be responsible for producing Meakings, Sr. for deposition.

II. Motions to Compel

a. Law

Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” FED. R. CIV. P. 26(b)(1). This District's Local Rule 26 elaborates on relevance, stating that evidence is relevant if:

Local Rule CV-26(d). “Accordingly, there is a liberal policy with regard to the information considered relevant for purposes of discovery.” Monroe v. Cessna Aircraft Co., No. 2:05CV250, 2006 WL 1765905, at *2 (E.D. Tex. June 12, 2006). That liberal policy extends to deposition discovery. See United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991) (“ ‘[T]he deposition-discovery rules are to be accorded a broad and liberal treatment.’ ”) (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947)).

*2 As to Meakings, Sr., however, RubCorp's motion raises questions that go beyond whether the requested deposition implicates information relevant to the lawsuit. Meakings, Sr. is not a citizen of the United States, he is not a party in this action, and he lives in Canada. Additional considerations apply to potential deponents like Meakings, Sr. who live outside the United States. In such a case, there are two guiding questions: (1) Is the deponent a citizen of the United States?; and (2) Is the deponent a party to litigation in the United States? When a potential deponent is a United States citizen, the deponent must appear and produce documents for deposition at the local United States embassy or consulate pursuant to service of an appropriate subpoena. See 28 U.S.C. § 1783.

When a potential deponent is not a citizen of the United States, the deponent may appear voluntarily or when compelled through the appropriate international means of obtaining civil discovery. See FED. R. CIV. P. 28(b) (providing for the taking of deposition evidence abroad); FED.R. CIV. P. 29 (providing for the taking of deposition evidence abroad in a manner stipulated in writing by the parties); see also Pain v. United Techs. Corp., 637 F.2d 775, 788–89 (D.C. Cir. 1980) (discussing the application of those rules). If the deponent voluntarily appears in the United States, there is no need for pursuing international means to compel the deposition. See FED. R. CIV. P. 29(a); Pain, 637 F.2d at 788 n.64 (D.C. Cir. 1980). If the deponent must be compelled, the party seeking to compel the deposition must use the appropriate international means. See FED. R. CIV. P. 28(b)(3); Pain, 637 F.2d at 788 n.64 (D.C. Cir. 1980). The appropriate means and controlling law will depend upon the nation in which the deponent resides. If the party seeking to compel the deposition of an unwilling non-citizen, non-party living abroad does not act in accordance with the appropriate international means and controlling laws, a federal district court, alone, cannot compel the deposition. See, e.g., DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir. 2002) (recognizing “the unavailability of process to compel unwilling third-party witnesses to appear in the United States” when those witnesses “reside in Canada” but also recognizing “the availability of letters rogatory” to allow deposition in Canada); EFCO Corp. v. Aluma Sys. USA, Inc., 145 F. Supp. 2d 1040, 1048 (S.D. Iowa 2000), aff'd, 268 F.3d 601 (8th Cir. 2001) (“Although the Court might be able to arrange for written or even video depositions of these witnesses in Canada with the help of a Canadian court, the fact remains that this Court is without subpoena power [over the unwilling witnesses] ....”).

b. Discussion

i. Barry Meakings, Jr.

In its Response, Rubaroc has agreed to produce Meakings, Jr. at a mutually agreeable time and place. Because of the delay in holding his deposition and because of the parties' agreement, Defendants' Motion to compel his deposition is GRANTED.

ii. Barry Meakings, Sr.

Rubaroc asserts that it should not be responsible for producing Meakings, Sr. Rubaroc admits that it listed him as one of its corporate representatives in the Rule 26(a) disclosures, but states that it did so in error. See FED. R. CIV. P. 30(b)(6) & advisory committee's note, 1970 amendment (evincing that “officers, directors, or managing agents” are typical Rule 30(b)(6) designees and others may be designated “but only with their consent”). Rubaroc clarifies that Meakings, Sr. is not an officer, director, or owner of Rubaroc and is a “part of Rubaroc's international efforts, but not Rubaroc, USA, Inc.” (Dkt. #44). Rubaroc has also confirmed that Meakings, Sr. is a non-citizen living abroad in Canada who is represented by Canadian counsel, not Rubaroc's lawyers. Further, Meakings, Sr. is either unable or unwilling to travel to the United States to be deposed and is not a party to this action.

*3 RubCorp advances several arguments in support of its Motion to Compel as to Meakings, Sr., none of which addresses the law applicable to its attempt to compel the deposition of a non-citizen living abroad, who is also a non-party, and who has not consented to be deposed in the United States.

First, RubCorp correctly states that “[a] plaintiff should ordinarily be deposed in the forum in which he has chosen to sue.” Caraway v. Chesapeake Expl. L.L.C., 269 F.R.D. 627, 628 (E.D. Tex. 2010). But that principle is inapplicable here because Meakings, Sr. is not a plaintiff in this action. At most, Meakings, Sr. is listed as a “potential party” in the Rule 26(f) report. (Dkt. #13). That alone is insufficient to invoke the principle. Even if Meakings, Sr. were to become a plaintiff—and the deadline to add parties has long passed—the principle is suggestive, not mandatory. See Caraway, 269 F.R.D. at 628 (“[P]laintiff should ordinarily be deposed in the forum in which he has chosen to sue.”) (emphasis added); Williams v. Sprint/United Mgmt. Co., No. 03– 2200–JWL, 2006 WL 1867471, at *3 (D. Kan. June 30, 2006) (“As a general rule, a plaintiff will be required to make himself or herself available for examination in the district in which suit was brought.”) (emphasis added); Turner v. Prudential Ins. Co. of Am., 119 F.R.D. 381, 383 (M.D.N.C. 1988) (“Because the plaintiff often chooses the forum, he will more likely be required to attend his deposition when set in the forum district.”) (emphasis added).

Second, RubCorp asserts that Rubaroc must produce Meakings, Sr. because “depositions should occur in the forum chosen by a plaintiff when such venue choice was constrained.” (Dkt. #42). This is a mistaken reading of the law. RubCorp relies on Wilkerson v. University of North Texas, but Wilkerson states that “[t]here is a general presumption that a defendant's deposition will be held in the district of his residence,” and that this presumption “loses its force where the Plaintiff's choice of forum is effectively constrained.” No. 4:15-CV-00540, 2016 WL 9559042, at *1 (E.D. Tex. Dec. 15, 2016) (emphasis added); see also Six W. Retail Acquisition v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 107 (S.D.N.Y. 2001) (“There is a general presumption that a defendant's deposition will be held in the district of his residence.... Thus, a plaintiff may only over come [sic] this presumption by showing peculiar circumstances favoring depositions at a different location.”) (citations and internal quotation marks omitted). Because RubCorp seeks the deposition of Meakings, Sr., who is not a defendant or even a party to this action, this argument fails.

Put simply, there is no legal basis to support RubCorp's demand that Rubaroc be held responsible for producing Meakings, Sr. for deposition. Rubaroc does not have control over Meakings, Sr. and does not have an obligation to produce him for a deposition. Meakings, Sr. is not a party to this action, does not reside within the United States, and is not a citizen of this country.

It also appears that RubCorp has made no effort to correspond with Meakings, Sr.'s retained Canadian counsel to schedule his deposition. Further, in its motions RubCorp fails to acknowledge or address the customary international means and controlling laws for compelling the deposition of an unwilling non-citizen, non-party living abroad. Instead, RubCorp has demanded only that Rubaroc produce Meakings, Sr. The record suggests that Meakings, Sr. may have relevant information, but RubCorp has not pursued the appropriate means of obtaining his deposition.

*4 For these reasons, Defendants' Motion to compel Rubaroc to produce Meakings, Sr. for deposition is DENIED.

III. Sanctions

a. Law

Under Federal Rule of Civil Procedure 37, a party seeking discovery may move for an order compelling a deposition and for appropriate sanctions, including for a party's failure to attend a properly noticed deposition. FED. R. CIV. P. 37(d)(1)(A)(i); Barnes v. Madison, 79 F. App'x 691, 707 (5th Cir. 2003). Sanctions may include those listed in Rule 37(b)(2)(A)(i)–(vi) and must include payment of reasonable expenses, including attorney's fees, caused by the failure to appear, unless the failure was “substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(d)(3). When making that determination, a court may consider various factors, including whether the non-appearing party filed a motion for protective order before the deposition date and what grounds were provided for the non-appearance. See Barnes, 79 F. App'x at 707.

Generally, the court's award of sanctions “must be exercised with restraint and discretion” and should be reserved for “conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 44–46, 111 S.Ct. 2123, 115 L.Ed. 2d 27 (1991) (internal quotation marks omitted); see also Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996). If the court issues sanctions, they should be “the least severe sanctions adequate to accomplish the purpose for which the sanction was imposed.” Topalian v. Ehrman, 3 F.3d 931, 938 (5th Cir. 1993).

b. Discussion

RubCorp has not made a sufficient showing to warrant sanctions against Rubaroc. RubCorp issued deposition notices for Meakings, Sr. and Meakings, Jr., and it is undisputed that Rubaroc was aware of those notices weeks before the identified deposition dates. Rubaroc, however, did not file its motions seeking protective orders until just days before the depositions were to take place. Although Rubaroc's motions were dilatory under the circumstances, its actions do not rise to the level of sanctionable conduct.

Sanctions will not be awarded when the non-appearing party's failure to appear was “substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(d)(3). Rubaroc filed motions for protective orders before the set deposition dates. The motion regarding Meakings, Jr. stated that he was “out of the country until September 15, 2019 and therefore not available on the date his deposition is currently scheduled” and offered to reschedule the deposition at a mutually agreeable date and time. (Dkt. #31). The motion regarding Meakings, Sr. stated that he was “not under the control of Plaintiff and therefore, Plaintiff cannot provide his appearance at a deposition in the United States” for all of the reasons discussed herein. (Dkt. #30).

Rubaroc's motions should have been filed in a timelier manner. However, both motions were filed before the deposition dates and explained why Meakings, Sr. and Meakings, Jr. would not be presented for deposition on the scheduled dates. Given Rubaroc's agreement to schedule a date for the deposition of Meakings, Jr., its lack of control over Meakings, Sr., and the “restraint and discretion” required of a district court in awarding sanctions, the Court will not impose sanctions on Rubaroc.

IV. Conclusion

*5 For the foregoing reasons, the Court GRANTS in part Defendants' Motion to Compel the Deposition of Barry Meakings, Jr. (Dkt. #43) and DENIES Defendants' Motion to Compel the Deposition of Barry Meakings, Sr. (Dkt. #42). Further, the Court DENIES Defendants' requests for sanctions.

It is, therefore, ORDERED that Barry Meakings, Jr. be produced for deposition on or before December 20, 2019.

So ORDERED and SIGNED this 25th day of November, 2019.