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Employer Ordered that it Could Not Depose Claimant Within State
(May 2011) By Kevin M. Cox, Associate
For more information, contact Paul
Farquharson.
Equal Employment Opportunity Comm. v. Endoscopic Microsurgery Assoc., P.A.,
No. JKB-10-2693 (D. Md. May 5, 2011) |
View pdf
The Equal Employment Opportunity Commission (“EEOC”) filed
a lawsuit against Endoscopic Microsurgery Associates, P.A., (“Endoscopic
Microsurgery”), its CEO and owner Dr. Mark Noar, and its practice administrator,
Martin Virga. The complaint alleged that Endoscopic Microsurgery subjected
various female employees to a sexual hostile and retaliatory work environment.
One of the claimants, Julie Johnson (“Ms. Johnson”), resided in South Carolina.
Ms. Johnson was not a formal party to the case; however, Endoscopic Microsurgery
served a subpoena upon her requiring her to appear in Baltimore, Maryland for a
deposition. The issue presented to the court was whether Endoscopic Microsurgery
could compel a claimant, who is not a formal party to a case, to appear in the
forum jurisdiction for a deposition.
In the past, the EEOC has attempted to produce out-of-state
claimants in Maryland for depositions. In this circumstance, however, the EEOC
argued that requiring Ms. Johnson to appear in Baltimore, Maryland for a
deposition would result in extreme hardship. Additionally, the EEOC argued that
the Federal Rules of Civil Procedure do not require EEOC claimants to appear in
the forum jurisdiction when they reside more than 100 miles from the forum.
Thus, the EEOC requested that the court order Endoscopic Microsurgery to depose
Ms. Johnson within 100 miles of her residence or alternatively, via
videoconference. In response, Endoscopic Microsurgery argued that Ms. Johnson
should have been compelled to provide deposition testimony in Maryland because
she joined the lawsuit and was seeking compensation for her alleged damages.
United States District Court Magistrate Judge, James K.
Bredar, relied upon a recently draft opinion by Magistrate Judge Paul Grimm
of the United States District Court for the District of Maryland, EEOC
v. Denny’s, Inc., Civil No. WDQ-06-2527, Order July 17, 2009, aff’d,
2009 WL 324, 6940 (D. Md. Oct. 2, 2009). In that opinion, Judge Grimm
concluded that the EEOC claimants were not formal parties to the litigation
and that they did not “choose” the District of Maryland to be the case’s
forum. Furthermore, Judge Grimm focused on Fed. R. Civ. P. 26(b)(2)(C) and
held that, even if the EEOC claimants in that case were parties to the
litigation, the cost-benefit balancing factors of that rule still would
militate in favor of deposing the out-of-state claimants via
telephone or videotape, rather than in person. Judge Bredar found Judge
Grimm’s rationale equally applicable in the instant case and adopted it.
The court ordered that Endoscopic Microsurgery had the
option of either having its counsel travel to South Carolina and take an
in-person deposition within 100 miles of Ms. Johnson’s residence, or
alternatively, arranging for a videoconference deposition. Otherwise,
Endoscopic Microsurgery’s subpoena to take Ms. Johnson’s deposition was
unenforceable.
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