ROBERT PATTERSON, Senior District Judge
Defendant Jack Banks moves for a protective order setting the location of his deposition in Toronto, Canada, or, in the alternative, requiring Plaintiff, Silva Run World Wide Limited ("Plaintiff) to conduct the deposition by video conference or telephonically. For the following reasons, Defendant's motion is denied.
Under Rule 30(b)(6), when a corporation receives a subpoena for a deposition, the corporation, "shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf." Fed.R.Civ.P. 30(b)(6). In this case, Plaintiff served a notice to depose Mr. Banks in his individual capacity, and also on behalf of Gaming Lottery Corporation.
There is a presumption that depositions of corporate officers will take place at the corporate officer's residence or the corporation's principal place of business. Buzzeo v. Board of Education, Hempstead. 178 F.R.D. 390, 392 (E.D.N.Y 1998). Because the presumption is based on the principle that plaintiffs, rather than defendants, choose the forum, the presumption is overcome when a plaintiff is constrained in selecting a forum. The Topps Co. v. Productos Stani Sociedad Anomia Industrial v Commercial, 2001 U.S. Dist. Lexis 5037, at *9 (S.D.N.Y. 2001). Trial courts have discretion to deny motions for a protective order after considering the cost, convenience and efficiency of conducting depositions at the defendant's principal place of business rather than the district of the litigation. See Devlin v. Transp. Comm. Int'l Union, 2000 U.S. Dist. Lexis 264, at *9 (S.D.N.Y. 2000); Doe v. Karadzic, 1997 U.S. Dist. Lexis 1073, at *10-11 (S.D.N.Y. 1997);Mill-Run Tours Inc. v. Khashoggi, 124 F.R.D. 547, 550 (S.D.N.Y. 1989) ("Because courts retain substantial discretion to designate the site of a deposition, the presumption appears to be merely a decision rule that facilitates determination when other relevant factors do not favor one side over the other.").
Here, Plaintiff was constrained in selecting a forum. Plaintiffs claims against Defendant arise under the securities laws of the United States. Moreover the transactions in question occurred in New York.
Concerns of cost, convenience and efficiency also militate against conducting the depositions in Toronto. The lawyers of Plaintiff, Defendant and Defendants seven other co-defendants are located in New York City, as are all the documents upon which the deposition will be based. Given the importance of Mr. Banks' role in the transactions in dispute, it is highly likely that each defendant will want to be represented by at least one lawyer at the deposition.
Finally, the only factor in favor of holding the deposition in Toronto is possible inconvenience to the Defendant. However, in cases where protective orders have been granted, courts have cited the inconvenience to the Defendant in missing work days. Six West Retail Acquisistion Inc. v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 108 (S.D.N.Y. 2001); Realuyo v. Diaz, 2000 U.S. Dist. Lexis 7241, at *4-5 (S.D.N.Y. 2000). Here, the Defendant has made no such claim, nor is the corporation's place of business a factor favoring a deposition in Toronto. Gaming Lottery Corporation no longer has offices in Canada.
As of the this date Mr. Banks will not be deposed as a Rule 30(b)(6) witness for defendant Diversinet, Incorporated which does have its primary place of business in Toronto.
The only support Defendant provides for his claim that travel to New York is inconvenient is his assertion, "as part of the resolution of criminal charges, I agreed to remain out of the United States for five years." (Declaration of Jack Banks, 12/18/2003 at ¶ 2.) The September 27, 2000 plea agreement between Defendant and the New York County District Attorney states, "Following his [Defendant's] sentence, he [Defendant] will leave the United States and not ever return to the United States except on those occasions when required or permitted to do so by court order". (Letter from Assistant District Attorney, John W. Moscow to Gustave H. Newman of 9/27/90 at ¶ 3 (emphasis added).) At the time of sentencing, New York State Supreme Court Justice Fried made it clear that Mr. Banks would obey the order of Judge Patterson "or any other judge, in any case that involves these defendants (Mr. Banks and Mr. Weltman)." (Letter from Deborah Clark-Weintraub to Judge Patterson dated 10/17/2000 available in: court file for In Re Gaming Lottery Securities Litigation, Master File No. 96 Civ. 5567.) Plaintiff is requesting just such a court order.
Considering the lack of choice of Plaintiff in selecting a forum, and the convenience and cost to the parties, Defendant's motion for a protective order is denied and he shall be deposed in New York. Because of the role of the defendant in the transactions in question, and the amount of documents his deposition will concern, Defendant's motion to testify via video conference or telephonically is also denied.
IT IS SO ORDERED.