UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
UNITED STATES OF AMERICA )
ex rel. Harry Barko, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-1276 (EGS)
)
HALLIBURTON COMPANY, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Pending before the Court are two motions for protective
orders filed by defendants in response to discovery requests made
by plaintiff Harry Barko. The first motion was jointly filed by
defendants Halliburton Company, Kellogg Brown and Root, Inc.,
Kellogg Brown & Root Services, Inc., KBR Technical Services Inc.,
Kellogg Brown & Root Engineering Corporation, Kellogg Brown &
Root International, Inc. (a Delaware Corporation), and Kellogg
Brown & Root International, Inc. (a Panamanian Corporation)
(collectively, the “KBR defendants”). A separate motion for a
protective order was filed by defendant Daoud & Partners, Ltd.
(“Daoud”). Upon consideration of defendants’ motions, the
responses and replies thereto, the applicable law, and the entire
record herein, and for the following reasons, the Court hereby
GRANTS the KBR defendants’ motion for a protective order, and
GRANTS IN PART AND DENIES IN PART Daoud’s motion for a protective
order.
I. BACKGROUND
Plaintiff filed this qui tam action in June 2005 against the
KBR defendants, Daoud, and another defendant. Plaintiff, who was
a contract administrator for one of the defendants, alleges that
defendants used a subcontracting procedure that inflated the
costs of constructing laundry facilities and services on military
bases in Iraq.
The KBR defendants and Daoud filed separate motions to
dismiss the plaintiff’s complaint. The KBR defendants’ motion to
dismiss asserts no jurisdictional defenses; they argue the case
should be dismissed for failure to state a claim under Federal
Rule of Civil Procedure Rule 12(b)(6) and for failure to plead
fraud with particularity under Rule 9(b). Daoud’s motion to
dismiss, on the other hand, argues that the Court lacks personal
jurisdiction over it. In response, the Court entered an Order on
June 17, 2010 permitting limited jurisdictional discovery. After
the Court entered the June 17, 2010 Order, plaintiff served
document requests on both Daoud and the KBR defendants. In
addition, he noticed a Rule 30(b)(6) deposition of Daoud, as well
as a Rule 30(b)(6) deposition of the KBR defendants. The
defendants filed their motions for protective orders shortly
thereafter.
II. ANALYSIS
The KBR defendants’ motion for a protective order seeks an
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order stating that the KBR defendants shall not be required to
answer any discovery requests or appear for any depositions until
further order of the Court. It argues that (i) the Court only
authorized limited jurisdictional discovery against Daoud, not
the KBR defendants, and (ii) the requests are unreasonable,
duplicative, unduly burdensome, and cover topics related to the
merits of the case rather than jurisdictional issues. Daoud’s
motion for a protective order objects only to the deposition
noticed by plaintiff. Daoud asks that the Court order that the
deposition of Daoud’s Rule 30(b)(6) witness take place in Amman,
Jordan rather than Washington, DC. In addition, Daoud argues
that the topics noticed by the plaintiff are overbroad and
irrelevant to the question of jurisdiction. The motions filed by
the KBR defendants and Daoud are now addressed in turn.
A. The KBR Defendants’ Motion for a Protective Order
The KBR defendants’ primary argument is that the Court’s
June 17th Order only authorized the plaintiff to obtain discovery
from Daoud, the party that raised a jurisdictional defense, not
the KBR defendants. Plaintiff disputes the KBR defendants’
interpretation of the Court’s July 17th Order, arguing that Court
“did not place any explicit limits as to which parties are
subject to the discovery.” Pl.’s Opp’n to KBR Defs.’ Mot. at 10.
For the following reasons, the Court finds plaintiff’s
interpretation unpersuasive.
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The Court’s July 17, 2010 Order states, in part, as follows:
Upon consideration of defendant Daoud’s motion to
dismiss, response and reply thereto, and substantially
for the reasons stated by plaintiff, the Court finds
that jurisdictional discovery is appropriate.
Jurisdictional discovery is limited to three
depositions and a request for production of
documents. . . . The parties are directed to file a
joint status report, including a recommendation for
further proceedings, by no later than August 15, 2010.
In the event that counsel are unable to agree on a
joint recommendation, each party shall file an
individual recommendation by that time.
The language of the July 17th Order makes it clear that the
Court’s grant of limited jurisdictional discovery was intended to
allow plaintiff to seek discovery only against Daoud. In
particular, the Court prefaced the sentence granting
jurisdictional discovery with the language “[u]pon consideration
of defendant Daoud’s motion to dismiss” and limited the plaintiff
to one document request.
Nor has plaintiff provided any persuasive reason why
jurisdictional discovery against the KBR defendants, particularly
in the form of broadly worded requests relating to another
defendant, is warranted under these circumstances. A plaintiff
who is permitted to conduct jurisdictional discovery is entitled
to “precisely focused discovery aimed at addressing matters
relating to personal jurisdiction.” GTE New Media Servs. Inc. v.
Bell South Corp., 199 F.3d 1343, 1352 (D.C. Cir. 2000).
Plaintiff includes in his opposition to the motion by the
KBR defendants a lengthy discussion of the KBR defendants’ role
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in another case, namely Adhikari v. Daoud & Partners, No. 09-
1237, pending in the District Court for the Southern District of
Texas. According to plaintiff, some or all of the KBR defendants
are also named as defendants in the Texas action, and these KBR
defendants have taken the position that Daoud is subject to
personal jurisdiction in that case. Plaintiff argues that, as a
result of their stance in the Texas action, the KBR defendants
“must have information that supports [their] litigation position
that there exists personal jurisdiction over Daoud in the United
States.” Pl.’s Opp’n to KBR Defs.’ Mot. at 8. Plaintiff claims
that he is entitled to this information. The Court finds this
argument unpersuasive, as plaintiff fails to demonstrate why the
KBR defendants’ position in the Texas case is relevant to whether
plaintiff should be entitled to jurisdictional discovery against
the KBR defendants in this action.
In light of the language of the June 17th Order and the
limited scope of the jurisdictional discovery, a protective order
barring plaintiff from seeking discovery against the KBR
defendants at this time is hereby GRANTED.
B. Daoud’s Motion for a Protective Order
1. The Location of the Deposition
Daoud seeks an order requiring that any Rule 30(b)(6)
deposition of Daoud be conducted in Amman, Jordan. In support of
its position, Daoud cites to case law indicating that the
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deposition of a corporation should ordinarily be taken at its
principal place of business. See, e.g., Nat’l Cmty. Reinvestment
Coal. v. Novastar Fin., Inc., 604 F. Supp. 2d 26, 31 (D.D.C.
2009); Work v. Bier, 107 F.R.D. 789, 793 n.4 (D.D.C. 1985).
Plaintiff concedes that there is a general presumption that
a deposition should take place at the corporation’s principal
place of business, but he argues that there is sufficient
justification to deviate from the presumption in this case. In
particular, plaintiff argues that (i) the case involves a foreign
deponent; (ii) Jordan is not a signatory to the Hague Convention
on the Taking of Evidence Abroad in Civil or Commercial Matters
and thus, according to plaintiff, “any deposition taken in
Jordan, for which the deponent has not agreed to conduct the
deposition under the Federal Rules of Civil Procedure, will be
taken according to Jordanian law”; (iii) there are no commercial
stenographer services available for voluntary depositions in
Jordan, and the parties would therefore be required to bring
someone from the United States for this purpose; (iv) if Daoud’s
representative refuses to answer questions at the deposition, the
plaintiff would be forced to use the complex, time-consuming
letter rogatory process resulting at best in testimony taken
according to Jordanian law; (v) the defendant’s discovery conduct
suggests that it will be “uncooperative or obstructionist” and
likely to lead to discovery disputes requiring judicial
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intervention; and (vi) balancing the cost and capability to
travel of the two parties, having the deposition in Jordan puts a
greater burden on the plaintiff than would be on the defendant if
the deposition were conducted in the United States. Pl.’s Opp’n
to Daoud’s Mot. at 9-15.
After careful consideration of plaintiff’s arguments, the
Court concludes that it need not deviate from the general rule
that a corporation’s deposition should be held in its principal
place of business. Unlike the circumstances in Triple Crown
America, Inc. v. Biosynth AG, No. 96-7476, 1998 U.S. Dist. LEXIS
6117 (E.D. Pa. April 30, 1998) or In re Honda American Motor Co.,
168 F.R.D. 535 (D. Md. 1996) cited by plaintiff, the instant case
does not involve a foreign jurisdiction in which the taking of a
deposition pursuant to the Federal Rules was barred by the law of
the foreign country. On the contrary, Daoud has explicitly
agreed that it “will appear for this jurisdictional deposition in
Amman, Jordan pursuant to the Federal Rules.” Daoud’s Mem. at 5.
Plaintiff fails to cite a single case ordering the deposition of
a foreign corporation to take place in the United States when the
foreign corporation was contesting personal jurisdiction and
consented to a deposition abroad in accordance with the Federal
Rules.
To the extent that plaintiff objects to the expense and
inconvenience of a deposition in Jordan, this is an insufficient
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basis to order the defendant to appear for a deposition in the
United States. Nor do the facts of this case warrant compelling
a deposition in the United States based on the speculative
statement by the plaintiff that the deposition may require
judicial intervention. Accordingly, the Court hereby ORDERS that
the Rule 30(b)(6) deposition of Daoud shall take place in Amman,
Jordan.1
Plaintiff has also requested that, in the event the
deposition of Daoud must take place in Jordan, the Court order
Daoud to bear the costs of conducting the deposition, including
the costs of traveling and bringing a stenographer to Jordan.
The Court finds no basis for granting this request. Accordingly,
plaintiff’s request is DENIED.
2. Scope of Deposition Topics
Daoud argues that all of plaintiff’s topics, because they
lack temporal restrictions, are overbroad. In addition, Daoud
argues that many of the 34 topics included in plaintiff’s
deposition notice go beyond purely jurisdictional issues. The
Court agrees and finds that plaintiff’s jurisdictional discovery
should be limited to the time period prior to the filing of the
1
Nothing in this Order or in the Court’s June 17, 2010
Order, however, is intended to affect the parties rights under
Rule 30(b)(4) of the Federal Rules of Civil Procedure providing
that “[t]he parties may stipulate – or the court may on motion
order - that a deposition be taken by telephone or other remote
means. For the purpose of this rule . . . the deposition takes
place where the deponent answers the questions.” Fed. R. Civ. P.
30(b)(b)(4).
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complaint. See McFarlane v. Esquire Magazine, 74 F.3d 1296,
1300-1301 (D.C. Cir. 1996); Allen v. Russian Fed’n, 522 F. Supp.
2d 167, 193 (D.D.C. 2007).
At this time, however, the Court finds it unnecessary to
further tailor the topics included in plaintiff’s deposition
notice to Daoud. Though the topics are broadly worded, plaintiff
has provided an adequate explanation of their relevance to
jurisdictional issues and asserts that he “does not intend to ask
questions beyond the scope of Daoud’s jurisdictional ties to the
United States.” Pl.’s Opp’n to Daoud’s Mot. at 17. Plaintiff is
admonished to tailor his questions during the deposition
accordingly.
III. CONCLUSION
Therefore, for the reasons set forth above, it is by the
Court hereby
ORDERED that the KBR defendants’ motion for a protective
order is GRANTED; and it is
FURTHER ORDERED that Daoud’s motion for a protective order
is GRANTED IN PART AND DENIED IN PART. The Rule 30(b)(6)
deposition of Daoud shall take place in Amman, Jordan. The
remaining portions of Daoud’s motion for a protective order are
DENIED. An appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
October 14, 2010
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