Thing just keep getting interesting in the Third Degree Films, Inc. v. Bailey Zwarycz, case:1:11-cv-01833-BAH, District of Columbia. (Previous posting)
On 6 Apr 12, John Lowe (Zwarycz’s attorney) filed an opposition to Plaintiff’s motion to have the deposition of itself taken over the telephone. Zw_Opp_TeleDisp_01833(DC)
Mr. Lowe first informs that court that for the second time, Plaintiff has failed to abide by standing order regarding discovery disputes in this court.
- Plaintiff never met with nor tried to contact Zwarycz’s attorney concerning disputed parts of the Discovery.
- Plaintiff never provided Mr. Lowe the following basic information: “identity and position of the deponent, Plaintiff’s counsel’s scheduling conflicts that might enter into the dispute, the deponent’s scheduling problems, if there were any, and other factors that would be susceptible of discussion.”
- Then to top it all off, Mr. Lowe points out that Plaintiff didn’t even obtain the court’s permission to file the motion, as required by the standing order.
Looks like Plaintiff doesn’t want to be deposed. I wonder why? 
Mr. Lowe provided the following reasons as to why Plaintiff’s motion should be denied.
- Plaintiff selected the District of Columbia (DC) as the venue to bring this case. Even in this venue, Zwarycz resides 250 miles away in West Virginia. Mr. Lowe also cited one ruling in which a Plaintiff corporation was required to travel to the venue location.
- Plaintiff has failed to show any compelling circumstances to prevent the deposition being taken in the DC jurisdiction. Mr. Lowe cited a couples cases supporting the view that Plaintiff should be the one to travel:
These courts have reasoned that as the party initiating the lawsuit and choosing the forum, the plaintiff should be required to bear the burden of any inconvenience during discovery. Accordingly, these courts have found that plaintiffs should be required to travel to the forum state for a deposition unless compelling circumstances relieve them of their duty.
- Plaintiff fails to show any compelling reason why a telephonic deposition is needed. The only reason cited for a telephonic deposition was to prevent having Plaintiff travel 4600 miles. As Plaintiff decided on this jurisdiction, he must have realized that there would come a time when they would have to travel to the jurisdiction to accomplish any discovery and trial.
Furthermore, in initiating the sort of mass litigation that it has in this forum as well as others, including New York, Houston, and Maryland, to name just a few, Plaintiff cannot argue that it will be burdened by such travel when it was a foreseeable and highly expected aspect of such litigation. Plaintiff knew or should have known that initiating litigation in those fora would normally result in a need to travel to those fora for depositions, and should have factored that into its decision on litigating in those fora. The costs of such travel would seem relatively minor in light of the substantial claims involved in this case where the Plaintiff has sought to obtain $2,500 each from 152 Defendants through settlement alone; a factor that the court found compelling in the Clem case when determining the amount of hardship imposed on the deponent. Clem, 102 F.R.D. at 940. Moreover, courts have found that “a claim of financial hardship, taken alone, does not demonstrate the exceptional or compelling circumstances” required by the standard in Clem. Farquhar, 116 F.R.D. at 72. Accordingly, any burdens Plaintiff might incur by travelling to the forum jurisdiction for deposition do not amount to compelling circumstances.
- Zwarycz has good reason to oppose the telephonic deposition. A complex case involving 150 defendants, multiple documents, a foreign corporation, 3rd party ISP, and a number of similar law suits filed by Plaintiff and others which are likely pertinent to this case. Face-to-face deposition is the best way to observe the demeanor and conduct of Plaintiff as it pertains to proving an ulterior motive of Plaintiff and the abuse of process claim. The face-to-face deposition will also prevent any possible confusion when dealing with multiple existing documents and yet to be discovered documents based on the written deposition of Plaintiff. Mr. Lowe may also ask Plaintiff to provide diagrams, drawings, or other hand written items in response to questions. Finally Mr. Lowe address the relevant part that without being at the same location as Plaintiff, they can’t actually observe who is attending the deposition and possible coaching Plaintiff in his responses. Do you really think a Copyright Troll and a Porn Content Owner would ever even think of such an idea?
This was a very nicely written opposition to Plaintiff’s motion. I can’t see what issues Plaintiff will raise to dispute this opposition, but we will see. I sure it is bound to make everyone laugh.
DieTrollDie 
