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D'Amico Dry v. Nikka Finance, Inc.

United States District Court, S.D. Alabama, Southern Division

October 19, 2018

d'AMICO DRY d.a.c., f/k/a d'Amico Dry Limited, Plaintiff,
v.
NIKKA FINANCE, INC., as owner of the M/V SEA GLASS II, Defendant.

         IN ADMIRALTY

          ORDER

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         This cause is before the undersigned on Defendant's motion for protective order (Doc. 123) and Plaintiff's response (Doc. 134).[1] This order DENYING Defendant's motion for protective order is entered pursuant to 28 U.S.C. § 636(b)(1)(A) and General Local Rule 72(a)(2)(S).[2]

         FACTUAL BACKGROUND

         This admiralty action has been pending in this Court since June 22, 2018, based upon d'Amico's verified complaint against Defendant Nikka and the within Rule B attachment of the M/V SEA GLASS II (compare Doc. 1 with Doc. 76), the vessel being arrested in the jurisdiction of this Court that same day (see Doc. 10). This Court has recognized that “[t]he crux of the dispute between d'Amico and Defendant Nikka . . . is whether d'Amico can collect against Nikka, under an alter ego theory, on the $1, 766, 278.54 foreign judgment entered in favor of d'Amico and against Primera [Maritime (Hellas) Limited].” (Doc. 40, at 1-2 (footnotes omitted)).[3]

         The Court entered its Expedited Rule 16(b) Scheduling Order on July 6, 2018 (Doc. 46) and since that time the undersigned has been presented with and attempted to resolve numerous discovery disputes between d'Amico and Nikka through informal discovery conferences (compare Id. at 5-6 (informing the parties that before the filing of any formal written motions, the undersigned should be utilized as a resource to facilitate the resolution of discovery disputes) with, e.g., Docs. 89, 93, 107, 112-13, 116, 124 & 128 (orders referencing the Court's informal conferencing requirement, etc.)). Indeed, as relates to the instant motion for protective order, whereby Nikka seeks to protect Paul Coronis-its 30(b)(6) representative and records custodian-from a videotaped deposition (see Doc. 123), this motion is the culmination of several discovery impasses in this case related to this deposition (compare Id. with Docs. 107 & 112-13). In the context of considering and granting Plaintiff's motion to amend scheduling order (Doc. 98), the undersigned parenthetically “made clear that Nikka would be required to tender a representative for its 30(b)(6) deposition[.]” (Doc. 107, at 2 n.1; see also Id. (noting that “Nikka's counsel communicated with Paul Coronis during a break in the hearing regarding his availability for deposition . . . prior to the new close of discovery on October 5, 2018.”)).[4] And, later, when the parties began sparring over the date on which Paul Coronis' deposition was to be taken and the length of the deposition (see Doc. 112), the undersigned urged the parties to reach agreement on the date of the deposition but, barring agreement, ordered that it occur prior to the close of discovery on October 5, 2018 in Piraeus, Greece, and be limited “to a maximum of 9 hours in a single day, excluding time attributable to objections and breaks.” (Doc. 113.) The parties did ultimately agree to take Mr. Coronis' deposition outside the discovery deadline, on October 24, 2018, in London, England, which leads to the present dispute (see Doc. 123).

         On October 4, 2018, Nikka filed its present motion, seeking a Rule 26(c) protective order prohibiting d'Amico from videotaping Mr. Coronis' deposition on three bases: (1) d'Amico failed to notify Mr. Coronis properly that this deposition would be videotaped; (2) the only purpose of a videotaped deposition is to harass, embarrass, and intimidate Mr. Coronis; and (3) Mr. Coronis does not consent to, nor will he sign a release allowing, the videotaping of his deposition, as violative of his rights to privacy under the Data Protection Act and EU Data Protection Regulations 2018 and the European Convention on Human Rights and the Human Rights Act. (See Doc. 123). Therein, Nikka has set forth the contents of the 30(b)(6) deposition notice it received sometime in August of 2018 (id. at 4)[5] and argues that this notice violates the requirements of Fed.R.Civ.P. 30(b)(3)(A) (see Id. at 3-4). In addition, it is Nikka's position that because Mr. Coronis gave a two-day deposition in the New York action-a deposition that was not videotaped-and, later, extensive testimony during a four-day bench trial, testimony deemed credible (over that of d'Amico's witness Luciano Bonaso), “[t]he only apparent reason for d'Amico's insistence on videotaping Mr. Coronis's deposition is to intimidate and harass him because d'Amico is upset that a Federal Judge found Mr. Coronis to be credible and d'Amico's own witness was found to be dishonest and not credible.” (Id. at 6; see also Id. (“d'Amico's hostile attitude toward Mr. Coronis is clearly the only reason d'Amico is insisting on videotaping his deposition because d'Amico knows it will cause Mr. Coronis ‘annoyance, embarrassment, [and] oppression.' Indeed, Mr. Coronis has communicated to d'Amico that he does not consent to having his testimony videotaped because, as a citizen of the European Union, who is not accustomed to being deposed, let alone having his testimony videotaped, feels taping his deposition will cause him extreme embarrassment and intimidation and will have a negative effect on his testimony.”)). Finally, Nikka has expounded on its privacy argument as follows:

Mr. Coronis is a citizen of the European Union. Under the Data Protection Act and EU General Data Protection Regulations 2018, which is in force in the United Kingdom where the deposition will occur, and under the European Convention on Human Rights and the Human Rights Act (collectively, the “Acts”), every European Union citizen has a right to privacy. Under these Acts, captured video footage counts as personal data if the subject can be identified. Here, Mr. Coronis will be identified in the videotaped deposition and, thus, under the Acts, d'Amico is required to obtain Mr. Coronis's consent and signed release before d'Amico records, uses or stores video of him, otherwise d'Amico will be in breach of the law. Mr. Coronis has serious privacy concerns about the videotaping of his deposition as he thinks the only purpose of the video is to annoy, embarrass, and oppress him and violate his privacy interests. Thus, he does not consent to his deposition being videotaped.

(Id. at 6-7.)

         d'Amico filed its response in opposition on October 12, 2018, and while the undersigned has no need to reference that response at length here, it need be noted that the day after Nikka filed the present motion, that is, on October 5, 2018, Plaintiff did issue a Supplemental Notice of Deposition by Videotape (and transcription) of Nikka Finance, Inc. (see Doc. 134, Exhibit 1).

         CONCLUSIONS OF LAW

         Rule 26(c) provides that “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending” and, further, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Id. Indeed, “[w]hen warranted, a party may object to the nonstenographic recording of a deposition under Rule 26(c).” Burr v. Phillip Morris USA, 2011 WL 13143904, *2 (M.D. Fla. Oct. 19, 2011), citing Fed.R.Civ.P. 30 advisory committee's notes to the 1993 amendments. With these very general principles in mind, the undersigned considers, in turn, Nikka's arguments in favor of issuance of a protective order prohibiting d'Amico from videotaping Mr. Coronis' deposition.

         A. Rule 30(b)(3) and its Application to this Case.

         Rule 30(b)(3)(A) of the Federal Rules of Civil Procedure provides that “[t]he party who notices the deposition must state in the notice the method [that is, audio, audiovisual, or stenographic means] for recording the testimony.” Id.; see also Burr, supra, at *2 (“A deposition may be recorded by audio, audiovisual, or stenographic means, and the method for recording must be stated in the deposition notice.”). However, Rule 30(b)(3)(B) goes on to provide that “[w]ith prior notice to the deponent and other parties, any ...


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