Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 07 November 2002
CASE NUMBER: 2002-SCA-0006
IN THE MATTER OF:
LAWN RESTORATION CORPORATION d/b/a
LAWN RESTORATION SERVICE, INC., and
LAWN RESTORATION SERVICES, INC.,
A corporation; and
JEFFREY JONES,
Individually and as Owner and/or President of
the Corporate Respondent,
Respondents.
ORDER DENYING MOTION
FOR PROTECTIVE ORDER
On November 1, 2002, I received a motion for protective order in which Respondents request that the depositions of two former employees not be had. The depositions which are the subject of the motion were noticed by the Office of the Associate Regional Solicitor for the Department of Labor to commence at 2:00 p.m. on Thursday, November 14, 2002, in Philadelphia, Pennsylvania. In the event I deny their request, Respondents ask in the alternative that the depositions be held on a Saturday or be scheduled to commence not later than 10:00 a.m. if held on a weekday. In support of their motion, Respondents assert that the Department has failed to enlist the witnesses' cooperation to voluntarily travel to the District of Columbia. Respondents also argue that an afternoon deposition in Philadelphia will result in unnecessary expenses to Respondent Jeffrey Jones and his counsel.
In a response to Respondents' motion received by me on November 5, 2002, the Department's counsel states that the time and location of the two scheduled depositions are a reasonable accommodation to the two deponents. According to the Department, both of these witnesses are Mexican nationals residing and working in the Philadelphia metropolitan area, and they will be leaving the United States to return to Mexico on or about November 26, 2002. The Department further reports that these witnesses have declined a request to voluntarily travel to Washington, D.C. for the purpose of being deposed, and they cannot be compelled to attend a deposition held more than 100 miles from their residence or place of business or held at a location outside the state in which they live or work. Counsel for the Department further notes that the Agency will incur expenses similar to those incurred by Respondents which expenses may be defrayed by Respondents if they opt to participate in the scheduled depositions from the Washington metropolitan area via telephone or video conferencing.
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Pursuant to 29 C.F.R. § 18.15 (2002), I may, upon a showing of good cause, make any order which justice requires to protect a party or person from undue burden or expense associated with another party's request for discovery. Respondents have failed to establish good cause to support the issuance of the protective order they seek.
As the Department correctly notes, a court may not compel a witness to attend a deposition scheduled at a location which is more than 100 miles from the witnesses' residence or place of business or which is outside the state in which the witness lives or works. Rule 45 of the Federal Rules of Civil Procedure states in relevant part:
(c) Protection of Persons Subject to Subpoenas.
. . . .
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
. . . .
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that . . . such a person may in order to attend trial be commanded to travel from any such place within the state in which the trail is held, . . . .
Fed.R.Civ.P. 45(c)(3)(A)(ii). Indeed, a principal purpose of the rule is to allow a court to protect witnesses, such as the two individuals who have been subpoenaed to attend the depositions scheduled for November 14, 2002, from incurring any undue burden or expense in complying with the subpoena.
According to the Department, both Pedro Ochoa Chavez and Isaac L. Vasquez reside near Philadelphia, Pennsylvania and work seven days a week at jobs paying $8.00 per hour. These two deponents reasonably fear that any missed work will jeopardize their employment during the brief time they have remaining before returning to Mexico, and they have therefore requested that any deposition be scheduled in the Philadelphia area at a time outside their regularly scheduled hours of employment. The Department's desire to accommodate their request is not unreasonable. Therefore, no good cause having been shown,
IT IS HEREBY ORDERED that Respondents' Motion for Protective Order is DENIED.
