Case 3:17-cv-00183-CAB-BGS Document 203 Filed 11/29/17 PageID.9226 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`v.
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`Plaintiff,
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`ESET, LLC and ESET SPOL. S.R.O.,
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` Case No.: 17CV183 CAB (BGS)
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`ORDER ON RULE 30(b)(6)
`DEPOSITIONS
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`Defendants.
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`[ECF No. 201]
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`On November 15, 2017, the Court ordered the parties to present their arguments in
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`a joint statement regarding the location of the depositions of Defendants’ Rule 30(b)(6)
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`witnesses.
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`Plaintiff served a Rule 30(b)(6) notice on Defendants ESET LLC and ESET SPOL.
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`BACKGROUND
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`S.R.O. (“ESET” unless otherwise distinguished) for San Diego.1 ESET identified 10
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`witnesses, 9 of whom are located in Slovakia, where Defendant ESET LLC’s parent,
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`Defendant ESET SPOL, has its principal place of business. Finjan moves this Court to
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`1 The deposition notice the parties submitted identifies Finjan’s counsel’s offices in
`Menlo Park, California as the location for the depositions, however, the Joint Statement
`indicates Finjan seeks to conduct the depositions in San Diego. (ECF No. 201 at 3, 6.)
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`17CV183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 203 Filed 11/29/17 PageID.9227 Page 2 of 4
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`order the depositions to take place in San Diego, whereas ESET moves for an order
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`requiring the depositions to take place in Slovakia.
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`DISCUSSION
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`Both Parties in their joint statement concur that there is a presumption that Rule
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`30(b)(6) depositions of corporate witnesses are held at a company’s headquarters. (ECF
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`No. 201 at 4-5.) However, since ESET in effect is seeking a court order setting the
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`location of the place of deposing these witnesses to Slovakia, a location other than the
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`noticed location of San Diego, the Court views ESET as requesting a protective order
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`under Federal Rule of Civil Procedure 26(c).
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`The general rule for setting the location of a corporate party’s deposition is that it
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`should ordinarily take place at its principal place of business. Cadent Ltd. v. 3M Unitek
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`Corp., 232 F.R.D. 625, 628 (C.D. Cal. 2005)(citation omitted). However, the deposition
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`of a party may be noticed wherever the deposing party designates, subject to the Court’s
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`power to grant a protective order designating a different place. Id. (citations omitted).
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`The Court may for good cause issue an order to protect a party from undue burden or
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`expense including specifying time and place for discovery. See Rule 26(c)(1)(B).
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`In determining whether to impose a protective order, the Court considers the initial
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`presumption that a corporate defendant should be deposed in the district of the
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`corporation’s principal place of business. However, a number of factors serve to
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`dissipate the presumption, which include location of counsel for the parties in the forum
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`district, the number of corporate representatives a party is seeking to depose, the
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`likelihood of significant discovery disputes arising which would necessitate resolution by
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`the forum court, whether the persons sought to be deposed often engage in travel for
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`business purposes, and the equities with regard to the nature of the claim and the parties’
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`relationship. Cadent Ltd., 232 F.R.D. at 628-629 (citations omitted). Whether the
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`defendant will suffer financial hardship is a main consideration. See id. at 629 (citations
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`omitted). The Court addresses each.
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`///
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`17CV183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 203 Filed 11/29/17 PageID.9228 Page 3 of 4
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`1. Location of Counsel in the Forum District
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`Although all counsel are in California, only ESET’s counsel are in the forum
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`district. However, since ESET’s counsel are located in the forum district, they would not
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`suffer any financial hardship were the Court to order the depositions in San Diego. This
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`factor weighs in favor of the depositions being conducted in San Diego.
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`2. Number of Corporate Representatives to be Deposed
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`ESET has identified 10 witnesses with knowledge of the thirty-nine 30(b)(6) topics
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`noticed by Finjan. Seven of these witnesses are in Bratislava, Slovakia, and two are in
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`Krakow, Poland. According to ESET, and not objected to by Finjan, five of these
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`witnesses lack passports or visas to travel to the United States. (ECF 201 at 6.)
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`According to ESET, were these witnesses ordered to be deposed here, the cost would be
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`nearly nine lost man-weeks of work. (Id.) Further, some of these witnesses have
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`knowledge as to only a single topic, and their deposition may take only a few hours. (Id.)
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`Judicial economy and the convenience of the parties, unnecessary trouble and
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`expense due to being required to travel a great distance are proper considerations in
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`deciding where the depositions should take place. Cadent Ltd., 232 F.R.D. at 629
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`(citations omitted). The Court finds this factor weighs heavily in favor of ordering the
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`depositions to take place in Slovakia.
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`3. Likelihood of Discovery Disputes
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`To date there have been no discovery disputes regarding objections during
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`depositions. Neither party in their Joint Statement mention this factor. The Court finds
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`this factor is neutral.2
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`4. Whether the Witnesses Often Engage in Travel for Business Purposes
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`Neither party has proffered information on this issue. However, ESET asserts that
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`2 Although due to time zone differences the Court would not be able to address issues that
`might arise during a deposition while it is taking place, counsel can arrange to contact the
`Court for resolution telephonically shortly after any dispute might arise.
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`17CV183 CAB (BGS)
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`Case 3:17-cv-00183-CAB-BGS Document 203 Filed 11/29/17 PageID.9229 Page 4 of 4
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`five of the 10 witnesses do not have passports or visas to travel to the U.S. This factor
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`appears to favor ESET, at least as to these five witnesses.
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`5. Equities Regarding the Nature of Claim and Parties Relationship
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` Neither party has proffered any information on this factor.
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`Considering all the factors, the Court finds that the Cadent factors weigh in favor
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`of ESET, and therefore finds that the presumption that Rule 30(b)(6) depositions of
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`corporate witnesses are held at a company’s headquarters has not been rebutted. It
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`appears from the Joint Statement that holding Finjan’s depositions of ESET’s 30(b)(6)
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`witnesses in Slovakia is more convenient, less time consuming, and less expensive.
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`Therefore, the Court orders these depositions be taken in Bratislava, Slovakia.3
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`The Court orders the Rule 30(b)(6) depositions be taken in Bratislava, Slovakia.
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`CONCLUSION
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`Dated: November 29, 2017
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`3 Finjan requests that if the depositions are ordered to take place in Slovakia, ESET be
`barred from bringing those witnesses at trial, represent its productions and other
`discovery responses are complete prior to the scheduling of the depositions, and bring
`those witnesses to the United States for deposition if ESET provides new discovery
`relevant to their testimony after they have been deposed in Slovakia. (ECF 200 at 4-5.)
`The Court does not find these conditions are justified or necessary at this time.
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`17CV183 CAB (BGS)
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