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Case 0:08-md-01916-KAM Document 1623 Entered on FLSD Docket 11/08/2017 Page 1 of 8

Case No. 08-01916-MD-MARRA/JOHNSON



This Document Relates To: ATS ACTIONS

Does 1-976 (10-cv-80652)
Does 1-677 (11-cv-80404)
Does 1-2146 (17-cv-80475)

Plaintiffs Motion to Recover Deposition Travel Costs

Pursuant to Rule 26(c)(1)(B), the Plaintiffs hereby move the Court for an award of costs

spent bringing four bellwether plaintiffs to Fort Lauderdale, FL, for depositions taken by the

Defendant between September 28 and October 2, 2017. The amount requested is $8,189, and

includes out of pocket costs in the US and Colombia, but no attorneys fees, even though the

logistics required many hours of work. These expenses are supported by the Declarations of Paul

David Wolf, Silvia Sanmiguel David and Lina Maria Delgado, and the receipts attached thereto.

The Defendant was asked its position on the motion on November 7, 2017, but has not

replied. The Defendant did state during a break in the first bellwether deposition that undersigned

counsel would be responsile for paying for additional hotel rooms and flights if the two depositions

scheduled for September 28, 2017 could not be completed that day, and are expected to oppose

the motion.


On July 6, 2017, the Defendants sent Notices of Deposition to undersigned counsel for the

eight bellwether plaintiffs jointly chosen by the parties pursuant to the Court's Order Setting Trial

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Dates & Discovery Deadlines. D.E. 1361. On the same day, the Plaintiffs filed a Motion for a

Protective Order requesting that the depositions be taken by video, and for more time to respond

to Defendant's Interrogatories and Requests for Production. D.E. 1496. On August 10, 2017, the

Court denied the motion, including the request for more time. D.E. 1535 at 2.

After the Court denied the motion, four of the eight Plaintiffs1 then raced to obtain passports

and visas. They lost the first week in an unsuccessful attempt to obtain passports in the town of

Montería. The Colombian agency in Montería is supposedly only open on Fridays, but was not

open on the Friday that we tried to go. Then the Plaintiffs made overnight trips to Medellín, which

is about eight hours away by bus, to apply for passports. A week or so later, counsel obtained the

passports for the Plaintiffs and arranged for their interviews at the U.S. Embassy in Bogotá for the

soonest possible date. The Plaintiffs then spent four days traveling to Bogotá for their interviews,

which was a two-day bus trip each way, staying overnight in Medellín, Bogotá, and Medellín again

on their return home. 2 The Embassy delivered the visas in three to five days each. Two days prior

to each deposition,3 the Plaintiffs flew to Medellin, staying in either hotels or with relatives. They

flew to Fort Lauderdale the next day, sat for depositions the day after that, and flew back to

Of the remaining four, one is deceased, and three were unable to travel for medical or financial
reasons, and have separately moved the Court for a Protective Order, asking that their cases be
stayed and replaced with others. See D.E. 1562.
These Plaintiffs have done a lot of traveling. In retrospect, we should have put them on internal
flights, rather than a four-day bus trip. One of them was apparently ill the entire time. These four
plaintiffs, at least, are highly motivated to bring their cases to trial.
The Defendants noticed two depositions per day, and then claimed during a break in the first
deposition that the second deposition would have to be postponed if the first were not completed
by the close of business. However, the longest of the four depositions (the first) took only about
two and a half hours.
The transcript of the first deposition shows that the Defendant did not believe that Plaintiffs'
counsel should object to translation errors and miscommunications between the attorney and the
witness. Chiquita's counsel then called the Court's chambers to ask the Court to order undersigned
counsel not to object to translation errors. The deposition transcripts will show that the witnesses
often did not understand the questions asked, and that the only objections I made were to
translations that were not understood. By the fourth deposition, things were going smoothly.
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Medellín the day after that. Then we put them on internal flights back to Apartadó. This was a lot

of traveling and cost a lot of money, and was only necessary because the Defendant didn't want to

take the depositions by video.

Although the Court denied Plaintiff's Motion for Protective Order for Video Depositions

because the Plaintiffs chose the forum and would normally be required to travel to the forum for

depositions, the Court never said who was supposed to pay for it. It appears that most courts

permit telephone or video depositions when travel to the forum presents an undue burden, and

when they don't, they require the party requesting the more expensive method to pay for it. In the

instant case, the four bellwether plaintiffs earn between $100 and $250 per month each, and the

financial burden on their counsel, a solo practitioner with several Colombian assistants, is extreme.


I. Deposing the Plaintiffs in Florida puts an undue financial burden on the Plaintiffs
which should be shouldered by the Defendants.

Under Federal Rule of Civil Procedure 26(c), the Court may, for good cause, issue an order

to protect a party or person from annoyance, embarrassment, oppression, or undue burden or

expense, including specifying "the allocation of expenses" for the disclosure of discovery. FRCP

26(c)(1)(B). In addition, Rule 26(b)(2)(C) requires the Court to limit the extent of discovery

otherwise allowed by the Federal Rules if the Court determines that the discovery sought may be

obtained from a less expensive source. Id. As with the certified translator issue, see D.E. 1586,

each party to a case is generally presumed to bear the “ordinary burden of financing his own suit.”

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 179 (1974). "It follows that each party seeking

discovery is expected to bear any special attendant costs." In re Puerto Rico Elec. Power Authority,

687 F.2d 501, 507 (1st Cir. 1982).

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A. The Defendant refused less-costly options such as taking the depositions by

Courts commonly order a requesting party to pay the costs of depositions that impose

undue burdens on party-deponents, particularly where the party taking the deposition refuses less

costly options. See Zito v. Leasecomm Corp., 233 FRD 395, 398 (S.D.N.Y. 2006) (requiring

defendants to pay cost of video depositions if they refused less expensive option of telephone

depositions); Estate of Gerasimenko (granting motion to take depositions by telephone unless

requesting party paid expenses of video or in-person depositions overseas); National Community

Reinvestment Coalition v. NovaStar Financial, Inc., 604 F.Supp.2d 26 (D.D.C. 2009) (although

court granted plaintiff's motion requiring rule 30(b)(6) witness to travel from Kansas to

Washington, D.C., the order was conditioned on plaintiff's paying the costs of the witnesses travel)

cf. Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625 (C.D.Cal 2005) (court ordered individuals

who lived and worked in New Jersey and Israel to travel to Los Angeles to attend depositions, but

ordered the parties to split the costs).

B. The indigency of a party may be taken into account in assigning costs.

The indigency of a party may be taken into account in determining the reasonableness of

discovery requests and assignment of costs. Courts typically consider the ability of the client to

pay these expenses, rather than the lawyer. In the instant case, the four Bellwether plaintiffs earn

between $100. and $250. per month, see Declaration of Lina Maria Delgado, D.E. 1517-2,4 and

cannot pay any of the litigation expenses, which are being paid by their attorney. This

compromises counsel's ability to bring the case to trial and pay for other necessary litigation

In writing this declaration, Ms. Delgado obtained statements from the bellwether plaintiffs as to
their incomes. The Defendant hasn't requested the information in discovery, and although a
damages estimate is normally part of Rule 16(a) disclosures, it was not part of the Court's Global
Order Setting Trial Dates and Discovery Deadlines. D.E. 1361.
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expenses. See Leist v. Union Oil Co. of California, 82 FRD 203 (ED Wis. 1979) (unemployed

plaintiff was permitted to take the deposition of a corporate employee where the suit was brought,

rather than where the deponent resided); Robinson v. Tracy, 16 FRD 113 (WD Mo. 1954)

(protective order issued where plaintiff lacked funds to travel and was not herself an important

witness5); Sullivan v. Southern Pacific Co., 7 FRD 206 (SDNY 1947) (plaintiff who sued in New

York was unable to travel from Minnesota without an attendant and for financial reasons; court

ordered the deposition taken in Minneapolis at defendant's expense, or by means of written

interrogatories); Coburn v. Warner, 12 FRD 188 (SDNY 1951) (plaintiff who resided in Boston

and brought action in New York not required to travel to New York for deposition where elderly

dependent and ill brother and sister depended on her presence at night, and her continued absence

from work would jeopardize her employment; defendant allowed to proceed by written

interrogatories or by traveling to Boston where deponent lived).

As general rule, a plaintiff who has selected the forum for filing her complaint may be

required to appear there for a deposition; but special circumstances, such as hardship or financial

burden may outweigh the prejudice to the defendant and require the general rule to yield to the

exigencies of a particular case. de Dalmady v. Price Waterhouse & Co., 62 F.R.D. 157, 158 (DPR

1973). It is when a person will suffer a great hardship by, or is economically incapable of

submitting to a deposition as notified, that a motion under Rule 26(c) of the Federal Rules of Civil

Procedure is most apt. Id. at 159; Hyam v. American Export Lines, Inc., 213 F.2d 221, 222 (2nd

Cir. 1954); Patrnogic v. United States Steel Corp., 43 F.R.D. 402 (D.C.N.Y. 1967); cf. General

Leasing Co. v. Lawrence Photo-Graphic Supply, Inc., 84 F.R.D. 130, 131 (WD M. 1979) (In the

absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance

The Plaintiffs in the instant case are not necesarily eyewitnesses to the events. They are the legal
heirs of the decedents.
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from the deposing party's residence, the deposing party should be required to take the deposition

at a location in the vicinity in which the deponent resides, even if the deponent is a party); Hyam

v. American Export Lines, 213 F.2d 221 (2nd Cir. 1954) (requiring plaintiff to come from Bombay

to New York for deposition would be so burdensome that trial court committed reversible error in

dismissing case for his failure to appear).

However, any presumption is "merely a decision rule that facilitates determination” when

other relevant factors such as cost, convenience, and litigation efficiency do not favor one side

over the other. Id.; Six West Retail Acquisition v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 107

(SDNY 2001). Although there appears to be no 11th Circuit precedent, courts in New York

consider these factors in balancing the parties' interests. Here, the cost, convenience and litigation

efficiency all favor taking the depositions by video. The Court considered the Plaintiffs' choice of

forum, and the Defendant's forum non conveniens arguments, and determined that the Plaintiffs

must appear in Florida. However, this added very little "demeanor evidence," since the

Defendants' counsel were not able to speak Spanish and had to depend on an interpreter. Although

the determination is within the Court's discretion, the Court may still find these three factors



For the foregoing reasons, the Court should GRANT Plaintiffs' Motion and award the

Plaintiffs $8,189 in costs.

Respectfully submitted,

/s/ Paul Wolf

Paul Wolf, CO Bar #42107
Attorney for Plaintiffs

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PO Box 46213
Denver, CO 80201
(202) 431-6986
fax: n/a.

November 8, 2017

Certificate of Conferral

I hereby certify that on November 7, 2017, I contacted four of the counsel for the
Defendants at Blank Rome LLP by email, none of whom replied. Counsel for the Defendant did
not respond, butpreviously stated that the Plaintiffs would be responsible for paying for their own
travel costs in the event the depositions could not be completed on the days they were scheduled.

/s/ Paul Wolf
Paul Wolf

Certificate of Service

I hereby certify that on November 8, 2017, I filed the foregoing document, and its attached
exhibits and declarations, with the Clerk of the Court using the Court's electronic case filing (ECF)
system, which should provide notices to all persons entitled to receive them.

/s/ Paul Wolf
Paul Wolf

Case 0:08-md-01916-KAM Document 1623 Entered on FLSD Docket 11/08/2017 Page 8 of 8

Case No. 08-01916-MD-MARRA/JOHNSON



This Document Relates To: ATS ACTIONS

Does 1-976 (10-cv-80652)
Does 1-677 (11-cv-80404)
Does 1-2146 (17-cv-80475)

Proposed Order

In consideration of Plaintiffs' Motion to Recover Deposition Travel Costs, and all

oppositions, responses and replies, and exhibits and attachments thereto, and finding that the

Plaintiffs have submitted suffcient proof of their costs, it is hereby

ORDERED that the Defendant shall pay the Plaintiffs $8,189.

Done this ________ day of ______________, 2017.

U.S. Disrict Judge