Factors To Consider In Defendant’s Deposition Location

It has been a long-standing general principle in Nevada that the party wishing to take a defendant’s deposition must travel to where the defendant is located–until now.

In Okada v. Eighth Judicial Dist. Court, the Nevada Supreme Court did away with this general principle and instead provided five-factors that must be considered when a party notices a defendant’s deposition in a location different from where the defendant resides:

(1) The location of counsel for the parties in the forum district;

(2) The number of corporate representatives a party is seeking to depose;

(3) The likelihood of significant discovery disputes arising that would necessitate resolution by the forum court;

(4) Whether the persons sought to be deposed often engage in travel for business purposes; and

(5) The equities with regard to the nature of the claim and the parties’ relationship.

Now, Nevada courts apply these factors to determine if a defendant will be forced to travel for their deposition. In Okada, for instance, the Court determined that because the defendant often traveled for business and had previously traveled to Las Vegas for a prior deposition, and traveling to the defendant would involve all counsel going to Japan for a ten-day deposition, the Court held that the defendant would have to travel to Las Vegas.

The Okada factors run contrary to the established presumption that a defendant should not be forced to travel because a defendant has no choice to be involved in the litigation. Before Okada, if a plaintiff noticed a defendant’s deposition in a location other than defendant’s residence or place of business and defendant objected, the plaintiff had the affirmative burden of demonstrating peculiar circumstances. The rationale for the deference given to the defendant was that the plaintiff is free to choose the forum within which to litigate. Because defendants are not before the court by choice, it is the plaintiff who should bear any reasonable burdens of inconvenience that the action presents.

However, now this clear-cut presumption can no longer be relied upon, and defendants involved in litigation in Nevada must demonstrate the Okada factors weigh in their favor to avoid incurring the hardship and burden of travel for a defendant’s deposition.  For more information, contact Brittni Bailus in LGC’s Las Vegas office.