CASE NO: 87-ERA-40

In the Matter of

JOHN C. REX
    Complainant

    v.

EBASCO CONSTRUCTORS, INCORPORATED
    Respondent

   Respondent has moved for an Order Compelling Complainant, John C. Rex, a resident of Olympia, Washington to appear for the taking of his deposition as a party to this proceeding in Houston, Texas on March 6, 1989.

   Complainant, through his Counsel, has objected ant has indicated that unless Ordered to do so, Complainant will refuse to appear in Houston for the taking of his deposition unless Respondent pays all expenses incident to such appearance, as well as a witness fee.

   In order to place my decision in the context of this proceeding as a whole, it is necessary to briefly set out some of the background of the case.

   In essence, this action arises pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. §5851) and Title

29 C.F.R. Part 24, wherein Complainant alleges he was discriminated against (terminated from employment) by Respondent after Complainant alleges certain improprieties in the performance by Respondent of a certain construction contract in Houston, Texas.

   All actions upon which this case is based occurred in Houston and Complainant has agreed that the proper venue for trial is Houston. Sometime after Complainant ceased work in Houston, he moved to the state of Washington. During the course of this litigation, Complainant has been represented by Counsel from a public interest firm in Washington, D.C., Appleton, Wisconsin and currently by Counsel having his office in Columbia, South Carolina.

   Under applicable regulations (See 29 C.F.R.§24.5) Complainant is entitled to an accelerated hearing and the procedure contemplates a speedy resolution without extensive discovery. In the event the Complainant desires discovery, he may waive the speedy trial provisions and undertake discovery.

   Here, Complainant waived the time restrictions and has undertaken extensive discovery. He has served at least one 25 page set of interrogatories and has taken the depositions of approximately 20 present and former employees of the Respondent. Respondent has made all requested individuals and documents available for deposition and has substantially complied with all discovery requests made by Complainant.

   Complainant, on the other hand, has not been overly cooperative in complying with Respondent's attempts to depose Complainant. On three separate occasions, Respondent's have noticed the deposition of Complainant in his home state, but each attempt has been frustrated by Complainant's proposed absence from the deposition situs on the date selected.

   Finally, in an attempt to reach a deposition date acceptable to Complainant, Respondent's left it up to Complainant's Counsel to choose a deposition date and Counsel for Respondent agreed to make themselves available on whatever date was selected by Complainant. Over a year passed without Complainant designating a date on which he would be available.

   When the case was rescheduled for trial to be held in Houston on April 3, 1989, Counsel for Respondent noticed Complainant's deposition to be taken in Houston on March 6, 1989. As noted above, Complainant's Counsel has indicated that unless Respondent pays Complainant's expenses and a witness fee, he will not appear. This motion followed.

   Normally, a witness cannot be compelled to appear for deposition at a place more than 40 miles distance from his residence unless a witness and mileage fees are paid. The

Federal Rules of Civil Procedure and 29 C.F.R. Part 24 are, however, silent on whether the travel expenses of a party need be paid by the opposition as a condition precedent to that party responding to a notice of deposition or subpoena. Here no subpoena has been issued, but that is of no mayor consequence, as the effect of seeking an Order compelling attendance is a request for the functional equivalent of a subpoena. 29 C.F.R. §18.24 which addresses the need for prepayment of a witnesses expenses as a condition precedent to compelling his appearance at trial is not controlling as Complainant is not a witness, he is a party to this action which he agrees is properly triable in Houston. He removed himself from Houston voluntarily.

    Here Respondent sought on three occasions to take Complainant's deposition in his home state. Three times Respondent's were rebuffed by Complainant. Had Complainant not objected, he would not now be faced with the prospect of having to travel to Texas from Washington. The expense he now faces is of his own making. Discovery is not a one-sided affair, but both parties must mutually respect the process. While one may argue that the financial equities favor denial of the Respondent's motion, those equities are counterbalanced by the tactical advantage of early deposition of the Complainant which was lost by Respondent's delay incurred in their good faith attempt to accommodate Complainant.

   It is therefore Ordered that the Motion to Compel Complainant's Attendance for the purpose of deposition be and the same is in, all respects granted. In the event Complainant ultimately prevails in this cause, he may wish to seek reimbursement for such travel as a litigation cost to be taxed against Respondent.

      ROBERT L. RAMSEY
      Administrative Law Judge

Dated: MAR 03 1989

San Francisco, California

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