Jacobs v. Floorco Enterprises, LLC, Slip Copy (2020) — Memorandum Opinion and Order (Exhibit D, Document 171-4)

What This Document Is

A verbatim Westlaw printout of a March 18, 2020 magistrate-judge order in Jacobs v. Floorco Enterprises, attached as Exhibit D to Blue Flame's supplemental-authorities memorandum (171.0). Not a Blue Flame filing on its own merits; ruled on four unrelated discovery motions in an employment case, only one of which (the Tu deposition) is relevant to why Blue Flame cited it.

Factual Summary

Of the order's four rulings — a motion to compel document production, a motion to disqualify defense counsel, a motion to strike deposition errata sheets, and a renewed motion to compel the deposition of Floorco's president, Paul Tu — only the fourth is relevant to Blue Flame's citation. Tu, a China resident subject to a Chinese court order barring him from leaving mainland China amid unrelated litigation there, offered to be deposed remotely; plaintiff Jacobs sought to compel Tu's in-person appearance in Kentucky, arguing a remote deposition was of uncertain legality under Chinese law and citing a U.S. Embassy/court-reporter warning that it could violate Chinese law. The court found "special circumstances" (cost, convenience, litigation efficiency, and the unlikelihood the Hague Convention would produce a deposition) justified compelling Tu's appearance in Kentucky under U.S. procedural rules rather than Chinese-law channels — but, "in the face of both Tu's sworn testimony that he is not permitted at present to travel outside of China and the current restrictions imposed by the United States and other countries on travel in light of COVID-19," declined to set a deadline for when that deposition must occur, instead ordering the parties to meet and confer on a proposed date.

Key Facts

Cited by Blue Flame (171.0) for the "remote deposition appears unlawful" finding regarding depositions of Chinese-resident witnesses, and for the court's refusal to impose a deposition deadline given COVID-19 travel restrictions.
Procedurally mixed outcome, unlike Blue Flame's framing as purely favorable: the court granted the motion to compel Tu's deposition (in principle), while withholding only the deadline — a distinction from cases (Squires, 171.3) that denied compulsion outright.
The $150,000 salary figure appearing in this document (Jacobs's alleged Floorco compensation) belongs to the unrelated underlying employment dispute and has no connection to Blue Flame, Chain Bridge, or the PPE wire-transfer dollar-figure register tracked elsewhere in this docket.

Source Caveats

Unrelated third-party litigation; not evidence in the Blue Flame case. Reproduced here solely as a legal-authority attachment.
The order's outcome as to Tu is a compelled-but-undated deposition, not an outright denial of compulsion; Blue Flame's memo (171.0) cites it selectively for the COVID-deadline-deferral holding.

Date: 2021-08-03

Cite this document

“Jacobs v. Floorco Enterprises, LLC, Slip Copy (2020) — Memorandum Opinion and Order (Exhibit D, Document 171-4).” Original at ecf.vaed.uscourts.gov, dated 2021-08-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-08-03-jacobs-v-floorco-enterprises-llc-slip-copy-2020/, SHA-256 4c96f2ae9f94c2e4869dc4760d3a0e130036a4aef371e598490b42fbaf0a5c04.

Full text

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EXHIBIT D
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at PageID #811.) Jacobs alleged that he initially worked as
an independent contractor for Floorco's predecessor company
2020 WL 1290607
until Floorco's President, Paul Tu (“Tu”), orally offered him
Only the Westlaw citation is currently available.
the position of Vice President of Sales and Marketing. (Id.
United States District Court, W.D. Kentucky,
at 811-12.) Jacobs contended that Tu offered to pay him
Louisville Division.
$150,000 plus commission incentives. (Id. at 812.) Jacobs
alleged that he worked in this position and was paid this salary
Michael JACOBS, Plaintiff,
until January 31, 2009, when his paychecks began coming up
v. short. (Id. at 816.) The problems with his paychecks continued
FLOORCO ENTERPRISES, between 2009 and 2013 until he was terminated by Tu in June
2013. (Id. at 816-17.)
LLC, Defendant.
On January 20, 2017, Jacobs filed a Complaint against
CIVIL ACTION NO. 3:17-CV-90-RGJ-CHL
Floorco asserting breach of contract and wage and hours
|
claims. (DN 1-1.) Jacobs claimed that Floorco failed to pay
Signed 03/18/2020
him his wages in violation of an oral employment contract and
Attorneys and Law Firms Kentucky wage and hour law. (Id.; DN 18.) After the case was
removed to this Court, the Court dismissed Jacobs's breach of
Andrew S. Epstein, Bahe Cook Cantley & Nefzger PLC, contract claim. (DN 23.) The Court recently allowed Jacobs
Louisville, KY, for Plaintiff. to amend his complaint to add claims of promissory estoppel,
equitable estoppel, fraud, unjust enrichment, and vicarious
Kyle D. Johnson, Souhila El Moussaoui, Frost Brown Todd
liability. (DNs 90, 91.) Additional background information
LLC, Louisville, KY, for Defendant.
pertinent to each pending motion will be set forth in the
section pertaining to each motion below.

MEMORANDUM OPINION AND ORDER
II. DISCUSSION
Colin H Lindsay, Magistrate Judge
A. Jacobs's Motion to Compel (DN 38)
*1 Before the Court are four motions filed by Plaintiff, Jacobs propounded a request for production seeking “the
Michael Jacobs (“Jacobs”): (1) a Motion to Compel (DN 38); production of all e-mails between Paul Tu (Floorco's
(2) a Motion to Disqualify Defense Counsel (DN 41); (3) a
President) and any manager of Floorco.”2 (DN 43, at PageID
Motion to Strike Defense Errata Sheets (DN 51); and (4) a
# 359.) Floorco objected to the request to the extent it
Renewed Motion to Compel the Deposition of Paul Tu (DN
sought emails protected by either the attorney-client privilege
75).1 Defendant, Floorco Enterprises, LLC (“Floorco”), filed and/or work product doctrine and produced a privilege log
responses to each motion (DNs 43, 46, 60, 86), and Jacobs identifying twenty-eight emails it was withholding on those
filed replies (DNs 44, 48, 63, 87). Therefore, these motions grounds. (Id.; DN 38-1.) The privilege log claimed the work
are ripe for review. product doctrine alone as the reason for withholding five e-
mails and both the attorney-client privilege and the work
For the reasons set forth below, Jacobs's Motion to Compel product doctrine as the reason for withholding twenty-three
(DN 38) is GRANTED IN PART and DENIED IN PART, other e-mails. (DN 38-1.) On March 22, 2019, Jacobs's
his Motion to Disqualify (DN 41) is DENIED, his Motion to counsel sent Floorco's counsel a letter challenging the
Strike (DN 51) is GRANTED, and his Motion to Compel the applicability of the attorney-client privilege and work product
Deposition of Paul Tu (DN 75) is GRANTED. doctrine given the timing of the e-mails in comparison to the
filing of the instant action and given that the e-mails were
exchanged between non-attorney representatives of Floorco.
I. BACKGROUND
(DN 38-2.) In response, Floorco's counsel indicated that
This case involves an employment dispute between Jacobs
Floorco stood by its objections. (DN 38-3.) Jacobs then filed
and Floorco, which is a wholesaler of material used for the
the instant motion seeking to compel production of all twenty-
construction and installation of hardwood flooring. (DN 91,
eight e-mails identified on Floorco's privilege log and/or for

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the Court to conduct an in camera review of the e-mails to fact that “memories fade and witnesses whose jobs are on the
determine whether they were properly withheld on the basis line have a tendency to conceal damaging evidence when not
of Floorco's stated objections. (DN 38; DN 38-1.) The Court forced to be truthful by irrefutable proof of past statements
directed Floorco to submit the e-mails in question for an in they have made.” (DN 44, at PageID # 381.)
camera review. (DN 89.)
In response, Floorco indicated that even though the e-mails
*2 As to attorney-client privilege, Jacobs argued that are dated prior to the filing of the instant action, the e-mails
because the e-mails were between representatives of Floorco, were all exchanged after an e-mail from Jacobs to Tu dated
it was suspect that all of the listed e-mails were made for February 4, 2015, in which Jacobs indicated that he had
the purpose of facilitating the rendition of legal services discussions with the United States Labor Department and
or transmitting advice from counsel. (DN 38, at PageID the Kentucky Labor Cabinet regarding the monies owed to
# 262-63.) Jacobs argued that it was possible that the him. (DN 43-4.) Jacobs stated, “If you do not have a plan
communications were only in part for that purpose such to correct the situation between you and I in a reasonable
that the proper remedy was the redaction of the privileged manner in a reasonable time, I am not choosing to pursue this
portion of the e-mail. (Id. at 263.) In response, Floorco through legal means, I am being forced to pursue it legally
admitted that the authors and recipients listed on the privilege by you.” (Id.) He also stated, “Please get back to me with
log were not lawyers. (DN 43, at PageID # 360.) Floorco your thoughts on this—I must move forward immediately
produced an affidavit from each of the listed individuals if we cannot come to a reasonable agreement.” (Id.) After
demonstrating that they were Floorco's President, Tu (DN this e-mail, Floorco argued that its representatives believed
43-1); Finance Manager, Freida Bayliss (“Bayliss”) (DN litigation was imminent, and it attached affidavits of those
43-2); and Operations Manager, Richie Berry (“Berry”) authors and recipients identified on the privilege log to
(DN 43-3). The affidavits also indicated that the e-mails substantiate this claim.3 (DN 43, at PageID # 364.) Floorco
exchanged between Tu, Bayliss, and Berry regarding Jacobs also argued that Jacobs had not shown a substantial need for
were created as a result of Jacobs's threat to sue and the information because he could obtain the same information
“included confidential discussions regarding internal strategy through deposition testimony. (Id. at 366-67.)
for purposes of assisting Floorco in obtaining legal advice
regarding this matter from an attorney.” (DN 43-1, at PageID *3 Having reviewed the e-mails submitted for an in camera
# 369-70; DN 43-2, at PageID # 371-72; DN 43-3, at PageID review, the Court will now address Jacobs's Motion.
# 373-74.) Bayliss's and Berry's affidavits also stated that
they possessed authority to seek legal advice on behalf of
Floorco and that to their knowledge, the e-mails exchanged
“have at all times been treated as confidential.” (DNs 43-2, 1. Legal Standard
43-3.) Floorco argued that the communications withheld were
Because this is a diversity case, this Court applies Kentucky
“made primarily to assist [Floorco] in obtaining legal advice
law to the applicability of the attorney-client privilege. In
and to prepare for a possible lawsuit.” (DN 43, at PageID #
re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir.
362.)
2006); Fed. R. Evid. 501. Kentucky's attorney-client privilege
is set forth in the Kentucky Rules of Evidence. Haney v.
As to the work product doctrine, Jacobs argued that because
Yates, 40 S.W.3d 352, 354 (Ky. 2000); Ky. R. Evid. 503. It
the e-mails on the privilege log were exchanged months
protects confidential communications made “for the purpose
before he filed suit, it was unlikely they were prepared in
of facilitating the rendition of professional legal services” if
anticipation of litigation as required. (DN 38, at PageID #
those communications are between the individuals identified
263-65.) Jacobs also argued that even if the e-mails were
in the Rule. Ky. R. Evid. 503(b). The Rule explicitly states
prepared in anticipation of litigation, he has a substantial need
that communications between “representatives of the client”
for the information given the likelihood the e-mails contain
or “the client and a representative of the client” are covered if
factual information substantiating his claims that Floorco
made for a purpose set forth in the Rule. Id. A representative
shorted his pay and/or admissions from Floorco's managers
of the client is defined as either “[a] person having authority
regarding whether money is still owed to him. (Id. at 264-65;
to obtain professional legal services, or to act on advice
DN 44, at PageID # 381-82.) Jacobs argued that he could
thereby rendered on behalf of the client” or “[a]ny employee
not obtain this information from any other source given the
or representative of the client who makes or receives a

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confidential communication: (i) [i]n the course and scope of the ‘written or oral information transmitted to the attorney and
his or her employment; (ii) [c]oncerning the subject matter recorded as conveyed by the client,’ ... may be obtained upon
of his or her employment; and (iii) [t]o effectuate legal a showing of substantial need and inability to otherwise obtain
representation for the client.” Ky. R. Evid. 503(a)(2). The without material hardship.” In re Columbia/HCA Healthcare
applicability of the privilege to a particular communication Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir.
“depends ... on the facts and circumstances under which the 2002) (quoting In re Antitrust Grand Jury, 805 F.2d 155,
communication was made.” Lexington Pub. Library v. Clark, 163 (6th Cir. 1986) and citing Toledo Edison Co. v. G.A.
90 S.W.3d 53, 59 (Ky. 2002). The burden to establish the Techs., Inc., 847 F.2d 335, 339-40 (6th Cir. 1988)). “However,
privilege is on the party claiming the privilege, who “must absent waiver, a party may not obtain the ‘opinion’ work
provide the court with sufficient information to show the of his adversary; i.e., ‘any material reflecting the attorney's
existence of the elements of the privilege and to allow review mental impressions, opinions, conclusions, judgments, or
of that decision by higher courts.” Collins v. Braden, 384 legal theories.’ ” Id. (quoting In re Antitrust Grand Jury, 805
S.W.3d 154, 164-65 (Ky. 2012). F.2d at 163-64).

The Kentucky Supreme Court has explained that the attorney-
client privilege “protects only those disclosures necessary to
2. Analysis
obtain legal advice which might not have been made absent
the privilege.” Clark, 90 S.W.3d at 60 (quoting Fisher v. *4 Ordinarily, the Court would first address whether
United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d the requested materials were relevant prior to determining
39 (1976)). Further, the privilege “is triggered only by a whether the attorney-client privilege or the work product
client's request for legal, as contrasted with business, advice.” doctrine protected the materials from disclosure. Fed. R. Civ.
Id. (quoting In re Grand Jury Subpoena Duces Tecum, 731 P. 26(b)(1) (“Parties may obtain discovery regarding any
F.2d 1032, 1037 (2d Cir. 1984)). Therefore, “[o]nly in those non-privileged matter that is relevant to any party's claim or
situations in which client communications otherwise intended defense and proportional to the needs of the case.”); Genesco,
to apprise an attorney of business matters contain an implied Inc. v. Visa U.S.A., Inc., 302 F.R.D. 168, 192 (M.D. Tenn.
request for legal advice on such matters will the attorney- 2014). However, Floorco did not contest in its response
client privilege apply.” Brown v. Tax Ease Lien Servicing, that the e-mails identified on its privilege log were relevant
LLC, No. 3:15-CV-208-CRS, 2017 WL 6939338, at *11 and otherwise discoverable if found not to be privileged
(W.D. Ky. Feb. 16, 2017) (citing Clark, 90 S.W.3d at 60). or protected by the work product doctrine. Therefore, the
Court will proceed to separately address the propriety of each
As the work product doctrine is a procedural rule of federal
designation on Floorco's privilege log below.4 If necessary,
law, it is governed by Fed. R. Civ. P. 26. In re Powerhouse,
the Court will then address in Section II(A)(2)(k) below
441 F.3d at 472; Pinnacle Sur. Servs. v. Manion Stigger, LLP,
whether Jacobs has made a sufficient showing of substantial
370 F. Supp.3d 745, 755 (W.D. Ky. 2019). The doctrine
need and that he cannot obtain the substantial equivalent of
protects “documents and tangible things that are prepared in
the materials by other means pursuant to Fed. R. Civ. P. 26(b)
anticipation of litigation or for trial by or for another party
(3)(A)(ii).
or its representative....” Fed. R. Civ. P. 26(b)(3)(A) (emphasis
added). To determine whether a document was prepared
in anticipation of litigation, the Court asks “(1) whether
a document was created because of a party's subjective a) Ref. Nos. 1-4
anticipation of litigation ... and (2) whether that subjective
Ref. Nos. 1-4 are a series of e-mails between Berry and
anticipation of litigation was objectively reasonable.” United
States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006). Tu regarding a February 11, 2015, e-mail from Jacobs.5
“[A]n ordinary business purpose” does not suffice. In re Jacobs's February 11, 2015, e-mail followed up on Jacobs's
Prof'ls Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009). prior February 4, 2015, e-mail in which Jacobs requested
“[T]he burden is on the party claiming protection to show payment of the outstanding balance he believed was owed
that anticipated litigation was the ‘driving force behind the to him. Floorco attached Jacobs's February 4, 2015, e-mail
preparation of each requested document.’ ” Id. (quoting to its response to Jacobs's Motion to Compel. (DN 43-4.)
Roxworthy, 457 F.3d at 595). “So-called ‘fact’ work-product, Therein, Jacobs indicated that if Tu did not “have a plan

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to correct the situation ... in a reasonable manner in a ineligible for protection under the work product doctrine
reasonable time, [Jacobs] [was] not choosing to pursue this merely because they were prepared by Floorco employees.
through legal means, [he] [was] being forced to pursue it
legally....” (Id.) Jacobs also stated therein that he “must Though Ref. Nos. 1-4 are otherwise eligible for protection
move forward immediately if [they] [could not] come to a under Fed. R. Civ. P. 26(b)(3), they were not prepared
reasonable agreement.” (Id.) Floorco claimed that Ref. Nos. because of Floorco's subjective anticipation of litigation
1-4 were protected from disclosure by the work product as required to trigger the protection of the work product
doctrine. (DN 38-1, at PageID # 267.) doctrine.6 Roxworthy, 457 F.3d at 594. Tu's February 4,
2015, and February 11, 2015, e-mails gave Floorco an
Jacobs argued that an e-mail is not a document or tangible objectively reasonable subjective anticipation of litigation,
thing within the meaning of Fed. R. Civ. P. 26(b)(3) such but Ref. Nos. 1-4 discuss how Floorco will respond to Tu's
that the work product protection does not apply to e-mails. request for funds and not his threat of legal action. Ref.
(DN 44, at PageID # 378-79.) While Jacobs cited to Liberty Nos. 1-2, 4 only mention “going to legal” in passing and as
Corp. Capital Ltd. v. Sec. Safe Outlet, Inc., 937 F. Supp. something to be avoided, and Ref. Nos. 1-4 do not contain any
2d 891, 901 (E.D. Ky. 2013), in support of this proposition, larger discussions of Floorco's strategy with respect to any
that case is distinguishable. In Liberty Corporate, the United anticipated litigation. As the Supreme Court has explained,
States District Court for the Eastern District of Kentucky the work product doctrine is designed to allow an attorney
was construing the terms of an insurance policy, not applying to “assemble information, sift what he considers to be the
the federal work product doctrine. Id. Further, the passage relevant from the irrelevant facts, prepare his legal theories
cited by Jacobs only explicitly discussed whether customer and plan his strategy without undue and needless interference
“e-mail addresses obtained from an electronic backup copy ... to promote justice and to protect their clients' interests.”
of [a] customer database” were tangible property. Id. The Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91
court therein found that the same were not tangible property L.Ed. 451 (1947); see also Columbia/HCA Healthcare, 293
under either the general definition of the term or under F.3d at 294. Ref. Nos. 1-4 do not contain any equivalent
the specific terms of the insurance policy at issue, which information or discussion. Instead, the e-mails appear to have
excluded electronically stored information from the policy's largely been exchanged for the “ordinary business purpose”
definition of tangible property. Id. Therefore, the case does of Jacobs's demand for funds, which does not suffice to trigger
not support an argument that an e-mail is not a “document the protection of the work product doctrine.
or tangible item” for purposes of the federal work product
doctrine. While Jacobs also cited in support to the Black's While the Court recognizes that “[i]f a document is prepared
Law Dictionary definition of the term “tangible property,” in anticipation of litigation, the fact that it also serves an
Black's Law Dictionary elsewhere defines a “document” ordinary business purpose does not deprive it of protection,”
as “embrac[ing] any information stored on a computer, the Court cannot conclude that the e-mails between Tu and
electronic storage device, or any other medium.” Document, Berry were prepared because of Jacobs's threat to pursue to
Black's Law Dictionary (11th ed. 2019). Accordingly, an e- the matter legally as required. In re Prof'ls, 578 F.3d at 439.
mail is a “document” that can be protected by the work Indeed, it appears that Ref. Nos. 1-4 “would have been created
product doctrine. in essentially similar form irrespective” of Jacobs's threat
of pursuing the matter legally given that Jacobs had been
*5 Documents need not be prepared by an attorney to trigger consistently demanding payment from Floorco. Roxworthy,
the protection of the work product doctrine. Fed. R. Civ. P. 457 F.3d at 599 (quoting United States v. Adlman, 134 F.3d
26(b)(3)(A) states that “documents and tangible things that 1194, 1202 (2d Cir. 1998)). Accordingly, Jacobs's Motion to
are prepared in anticipation of litigation or for trial by or for Compel (DN 38) will be granted as to Ref. Nos. 1-4.
another party or its representative” may not be discovered
by a party. Fed. R. Civ. P. 26(b)(3)(A). “Thus, whether a
document is protected depends on the motivation behind
its preparation, rather than on the person who prepares it.” b) Ref. No. 5
Caremark, Inc. v. Affiliated Comput. Servs., Inc., 195 F.R.D.
*6 Ref. No. 5 is a March 7, 2016, e-mail from Bayliss to Tu
610, 615 (N.D. Ill. 2000). Therefore, Ref. Nos. 1-4 are not
again regarding the Kentucky Labor Cabinet's investigation
of Jacobs's claims. Floorco claimed this e-mail was protected

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from disclosure by the work product doctrine. (DN 38-1, at to any third party, establish that the e-mails are confidential
PageID # 267.) As above, the Court concludes Ref. No. 5 is communications within the meaning of Ky. R. Evid. 503.
a document prepared by or for a party or its representative
within the meaning of Fed. R. Civ. P. 26(b)(3)(A). However, To be protected by the attorney-client privilege, the
Ref. No. 5 was not prepared because of Floorco's subjective confidential communications must also be exchanged
anticipation of litigation as required.7 Roxworthy, 457 F.3d at between persons covered by the Rule. Ky. R. Evid. 503(b)
594. Ref. No. 5 largely consists of a recitation of Bayliss's (1)-(5) list the individuals between whom communications
conversations with a Labor Cabinet representative. As with are protected, which includes communications “[b]etween
Ref. Nos. 1-4 above, the e-mail contains no discussion of representatives of the client or between the client and a
strategy with respect to Jacobs's threat of litigation, nor does representative of the client....” Ky. R. Evid. 503(b)(4). Ky. R.
it even appear to explicitly reference Jacobs's stated intent to Evid. 503(a)(2) defines “representative of the client” as
pursue legal action. Therefore, Ref. No. 5 was not prepared
(A) A person having authority to obtain professional legal
because of anticipation of litigation from Jacobs. Instead, the
services, or to act on advice thereby rendered on behalf
e-mail was prepared as a summary of Bayliss's conversation
of the client; or
with the Labor Cabinet for Tu. Jacobs's Motion to Compel
(DN 38) will be granted as to Ref. No. 5. (B) Any employee or representative of the client who
makes or receives a confidential communication:

(i) In the course and scope of his or her employment;
c) Ref. Nos. 6-8
(ii) Concerning the subject matter of his or her
Ref. Nos. 6-8 are a series of March 7, 2016, e-mails between
employment; and
Tu and Bayliss in part regarding the Kentucky Labor Cabinet's
investigation and position and in part discussing obtaining (iii) To effectuate legal representation for the client.
legal representation. Floorco claimed these e-mails were Ky. R. Evid. 503(a)(2). Floorco argued that both Tu and Berry
protected by both the attorney-client privilege and the work fall within the scope of this definition, stating that “[i]n their
product doctrine. (DN 38-1, at PageID # 267-68.) respective capacities, [Tu and Bayliss] ... have the authority
to obtain professional legal services and to act on legal advice
The attorney-client privilege protects only confidential
rendered on behalf of Floorco.”8 (DN 43, at PageID # 361.)
communications. Ky. R. Evid. 503(a)(5) states that “[a]
Given their respective positions—Tu as Floorco's President
communication is ‘confidential’ if not intended to be
and Bayliss as Floorco's Finance Manager—and Bayliss's
disclosed to third persons other than those to whom disclosure
representation in her affidavit that she has “authority to seek
is made in furtherance of the rendition of professional
legal advice on behalf of Floorco,” (DN 43-2, at PageID #
legal services to the client or those reasonably necessary
372), both Tu and Bayliss are representatives of the client
for the transmission of the communication.” Ky. R. Evid.
within the meaning of Ky. R. Evid. 503(a)(2)(A).
503(a)(5). Tu stated in his affidavit that obtaining Berry
and Bayliss's input on Jacobs's e-mails and threat to sue
*7 Though Ref. Nos. 6-8 are confidential communications
“was necessary and essential for purposes of obtaining legal
exchanged between representatives covered by Ky. R. Evid.
advice for Floorco” and that the “emails included confidential
503, based the content of the same, Ref. Nos. 6-8 were
discussions regarding internal strategy for purposes of
not “made for the purpose of facilitating the rendition of
assisting Floorco in obtaining legal advice regarding this
professional legal services to the client” as required. Ky. R.
matter from an attorney.” (DN 43-1.) Bayliss and Berry
Evid. 503(b). While Floorco stated in its privilege log that
echoed Tu's sentiment regarding the content of the e-
all three e-mails were “sent for the purpose of facilitating the
mails in their affidavits and also stated that “[t]o [their]
rendition of legal representation,” that statement appears to be
knowledge, those emails have at all times been treated as
true of only a portion of Ref. Nos. 6 and 7. Specifically, only
confidential.” (DN 43-2, at PageID # 372; DN 43-3, at PageID
the first independent clause in the last sentence of Ref. No. 6
# 374.) These representations regarding how Tu, Bayliss, and
prior to the closing salutation and the sixth through eighth and
Berry treated the e-mails, especially in light of the absence of
last sentences of Ref. No. 7 are communications regarding
any information that Ref. Nos. 6-8 have ever been disclosed
facilitating legal representation. These passages alone do not

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convert the whole of Ref. Nos. 6 and 7 into attorney-client representatives covered by Ky. R. Evid. 503. However, based
privileged e-mails. Collins, 384 S.W.3d at 165 n. 5 (“It is on their content, Ref. Nos. 9-10, 12 were not “made for
worth noting that if the [attorney-client] privilege applies to the purpose of facilitating the rendition of professional legal
only some of the statements or parts of the documents, the services to the client” in their entirety as required. Ky. R.
statements or parts of documents not covered are nevertheless Evid. 503(b). Instead, Ref. Nos. 9-10, 12 are only partially
properly discoverable.”). Instead, the remainder of these e- protected by the attorney client privilege. Specifically, (1)
mails and the whole of Ref. No. 8 were prepared in response to the entire first paragraph and the phrase in the second-to-last
Bayliss's explanation of the Labor Cabinet's position and were sentence beginning with “and” and ending with “laws” of Ref.
not made for the purpose of facilitating legal representation. No. 9, (2) the third sentence and the independent clause after
As to Ref. No. 8, the mere use of the word “legally” is an the comma in the fifth sentence of Ref. No. 10, and (3) the
insufficient reference to the facilitation of legal representation last sentence of Ref. No. 12 are communications regarding
to justify protection under the attorney-client privilege. facilitating legal representation such that the attorney-client
privilege protects those portions from disclosure. These
Floorco also claimed that Ref. Nos. 6-8 were protected from passages contain both explicit and implicit references to
disclosure by the work product doctrine. (DN 38-1, at PageID legal representation sufficient to trigger the privilege. The
# 267-68.) As with Ref. Nos. 1-5 above, Ref. Nos. 6-8 are remaining portions of the e-mails are merely a recitation
documents prepared by or for a party or its representative of Bayliss's conversations with the Kentucky Labor Cabinet
within the meaning of Fed. R. Civ. P. 26(b)(3)(A). However, representative, Tu's reaction to the same, and a discussion of
once again, Ref. Nos. 6-8 were not prepared because of Floorco's financial position, which facially do not relate to
Floorco's subjective anticipation of litigation as required. legal representation.
Roxworthy, 457 F.3d at 594. Ref. Nos. 6-8 simply contain a
further discussion of what Bayliss was told by Labor Cabinet As to the work product doctrine, Ref. Nos. 9-10, 12 are
representative and what Floorco's financial options were in documents prepared by or for a party or its representative
response. They contain no discussion of strategy with respect within the meaning of Fed. R. Civ. P. 26(b)(3)(A). However,
to Jacobs's threat of litigation, nor do they even explicitly again, Ref. Nos. 9-10, 12 were not prepared because of
or implicitly reference Jacobs's stated intent to pursue legal Floorco's subjective anticipation of litigation as required.
action. Therefore, Ref. Nos. 6-8 were not prepared because of Roxworthy, 457 F.3d at 594. Ref. Nos. 9-10, 12 simply
anticipation of litigation from Jacobs and are not protected by contain a further discussion of what Bayliss was told by
the work product doctrine. Labor Cabinet representative, Tu's reaction to the same, and
Floorco's financial position. They contain no discussion of
Accordingly, the Court will grant in part Jacobs's Motion to strategy with respect to Jacobs's threat of litigation, nor do
Compel (DN 38) and direct Floorco to produce a copy of they even explicitly or implicitly reference Jacobs's stated
Ref. No. 6 redacting the first independent clause in the last intent to pursue legal action. Therefore, Ref. Nos. 9-10, 12
sentence, a copy of Ref. No. 7 redacting the sixth through were not prepared because of anticipation of litigation from
eighth and last sentences, and Ref. No. 8 in its entirety. Jacobs and are not protected from disclosure by the work
product doctrine.

*8 Accordingly, the Court will grant in part Jacobs's Motion
d) Ref. Nos. 9-10, 12
to Compel (DN 38) and direct Floorco to produce a copy
Ref. Nos. 9-10, 12 are a series of March 8, 2016, and March of Ref. No. 9 redacting the entire first paragraph and the
9, 2016, e-mails between Bayliss and Tu in part discussing phrase in the second-to-last sentence beginning with “and”
the Kentucky Labor Cabinet's investigation and position and and ending with “laws,” a copy of Ref. No. 10 redacting the
in part discussing obtaining legal representation. Floorco third sentence and independent clause after the comma in the
claimed these e-mails were protected by both the attorney- fifth sentence of the e-mail, and a copy redacting the last
client privilege and the work product doctrine. (DN 38-1, at sentence of Ref. No. 12.
PageID # 268.)

As to attorney-client privilege, Ref. Nos. 9-10, 12 e) Ref. Nos. 11, 13
are confidential communications exchanged between

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Ref. Nos. 11, 13 are March 9, 2016, and April 21,
2016, respectively, e-mails between Tu and Bayliss. In its
privilege log, Floorco described both as “[e]mail[s] following
g) Ref. Nos. 15-19
[Jacobs]'s threat of filing a legal claim regarding Labor
Cabinet's investigation sent for the purpose of facilitating Ref. Nos. 15-19 are a series of April 22, 2016, e-mails
the rendition of legal representation” and argued that they and a May 5, 2016, e-mail between Tu and Bayliss, which
were protected by both the attorney-client privilege and the Floorco argued were protected by the attorney-client privilege
work product doctrine. (DN 38-1, at PageID # 268-69.) and the work product doctrine. (DN 38-1, at PageID #
The Court finds this to be an unfair characterization of 269-70.) For each of these e-mails, Floorco indicated that
the purpose of Ref. Nos. 11, 13. Ref. Nos. 11, 13 do not the e-mail was sent “for the purpose of facilitating the
explicitly reference counsel or contain any implied references rendition of legal representation.” (Id.) This is an inaccurate
to seeking legal representation. Instead, they discuss Floorco's characterization of Ref. Nos. 15-19, which facially relate
inventory, financial position, and Bayliss's—not Floorco's— only the Floorco's financial position and ability to meet the
conversations with the Labor Cabinet representative. This is demands of the Labor Cabinet representative to whom Bayliss
an insufficient purpose to trigger the protections of either the had been speaking. This is no way involves facilitating legal
work product doctrine or the attorney-client privilege for the representation, nor do Ref. Nos. 15-19 contain any explicit or
reasons set forth above. Because Ref. Nos. 11, 13 were not implicit references to an attorney or legal advice. Therefore,
sent for the purposes prescribed by either protection claimed Ref. Nos. 15-19 were not produced for the purpose prescribed
by Floorco, they are not protected even though the Court by Ky. R. Evid. 503(b). As to the work product doctrine,
otherwise concludes that Ref. Nos. 11, 13 are confidential because Ref. Nos. 15-19 were produced solely for the purpose
communications exchanged between representatives covered of determining how Floorco could respond to the Labor
by Ky. R. Evid. 503 and documents prepared by or for a party Cabinet, the Court finds the same were not created because
or its representative within the meaning of Fed. R. Civ. P. of Jacobs's threat of litigation. Because they were not sent
26(b)(3)(A). Accordingly, Jacobs's Motion to Compel (DN for the purposes prescribed by either protection claimed
38) will be granted as to Ref. Nos. 11, 13, and the Court will by Floorco, they are not protected even though the Court
direct Floorco to produce Ref. Nos. 11, 13. otherwise concludes that Ref. Nos. 15-19 are confidential
communications exchanged between representatives covered
by Ky. R. Evid. 503 and documents prepared by or for a party
f) Ref. No. 14 or its representative within the meaning of Fed. R. Civ. P.
26(b)(3)(A). Accordingly, Jacobs's Motion to Compel (DN
Ref. No. 14 is an April 21, 2016, e-mail between Tu and 38) will be granted, and the Court will direct Floorco to
Bayliss. Floorco argued that it was protected by both the produce Ref. Nos. 15-19.
attorney-client privilege and the work product doctrine. (DN
38-1, at PageID # 269.) While Ref. No. 14 is a confidential
communication exchanged between representatives covered
h) Ref. No. 21
by Ky. R. Evid. 503 and is a document prepared by or for
a party or its representative within the meaning of Fed. R. *9 Ref. No. 21 is a May 5, 2016, e-mail between Bayliss
Civ. P. 26(b)(3)(A), Ref. No. 14 is only partially entitled to and Tu. Floorco argued Ref. No. 21 was protected by both
protection under the attorney-client privilege. Again, the bulk the attorney-client privilege and the work product doctrine.
of Ref. No. 14 discusses Floorco's financial position and how (DN 38-1, at PageID # 270.) Ref. No. 21 is a confidential
to respond to the Labor Cabinet, which the Court has already communication exchanged between representatives covered
found to be insufficient to trigger the protections of the by Ky. R. Evid. 503 and a document prepared by or for
work product doctrine. Only the third and fourth sentences of a party or its representative within the meaning of Fed. R.
Ref. No. 14 contain an implied reference to facilitating legal Civ. P. 26(b)(3)(A). Though it does contain at least one
representation such that the same is protected by the attorney- implied reference to legal representation, which is protected
client privilege. Therefore, Jacobs's Motion to Compel (DN by the attorney client privilege, the vast majority of Ref. No.
38) will be granted in part as to Ref. No. 14, and the Court 21 involves only a discussion of Floorco's response to the
will direct Floorco to produce a copy of Ref. No. 14 redacting Labor Cabinet and/or incoming fees, which are not protected.
the third and fourth sentences. Ref. No. 21 is likewise not protected by the work product

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doctrine because it was prepared in response to the Labor doctrine because they were not prepared because of Jacobs's
Cabinet and not “because of” the threat of litigation from threat of litigation and were again prepared as a response
Jacobs. Therefore, Jacobs's Motion to Compel (DN 38) will to the Labor Cabinet's investigation. Accordingly, Jacobs's
be granted in part as to Ref. No. 21, and the Court will require Motion to Compel (DN 38) will be denied as to Ref. Nos. 20,
Floorco to produce a copy of Ref. No. 21 that redacts the first 22, 26-28.
line item and amount in the list that begins the e-mail and the
amount of money listed after the word “total.”

k) Fed. R. Civ. P. 26(b)(3)(i)-(ii)

i) Ref. Nos. 23-25 *10 Because the Court has not found that any e-mail on
Floorco's privilege log was protected solely by the work
Ref. Nos. 23-25 are two May 5, 2016, e-mails and a May 10, product doctrine, the Court need not assess whether Jacobs
2016, e-mail between Bayliss and Tu.9 Again, Floorco listed made a showing of substantial need and that he could not
the same as protected by both the attorney-client privilege obtain the substantial equivalent of the materials without
and the work product doctrine. (DN 38-1, at PageID # undue hardship. See St. Luke Hospitals, 160 S.W.3d at 777
270-71.) Ref. Nos. 23-25 are confidential communications (“[W]hen a communication is protected by the attorney-client
exchanged between representatives covered by Ky. R. Evid. privilege it may not be overcome by a showing of need by
503 and documents prepared by or for a party or its an opposing party to obtain the information contained in the
representative within the meaning of Fed. R. Civ. P. 26(b) privileged communication.”).
(3)(A). However, they are not protected by the attorney-
client privilege because they do not contain any explicit
B. Jacobs's Motion to Disqualify (DN 41)
or implicit references to obtaining legal representation or
Jacobs moved to disqualify Floorco's counsel, Kyle Johnson
facilitating legal representation. As to the work product
(“Johnson”), contending that Johnson is a fact witness in
doctrine, they were not prepared “because of” the threat
this case. (DN 41.) Jacobs argued that Johnson represented
of litigation from Jacobs and again, were prepared in
Floorco in relation to the complaint Jacobs filed with the
response to Bayliss's communications with the Labor Cabinet.
Kentucky Labor Cabinet; that prior to Johnson's involvement
Indeed, Ref. Nos. 23-25 only discuss the preparation of
at least one Floorco representative repeatedly admitted that
documentation requested by the Labor Cabinet representative
Floorco owed money to Jacobs; and that subsequently
with whom Bayliss had been speaking. Therefore, Jacobs's
Johnson sent a letter and e-mail asserting that Jacobs was
Motion to Compel (DN 38) will be granted as to Ref. Nos.
not Floorco's employee, stating no money was owed, and
23-25.
“reneging” on prior promises to pay. (Id. at PageID #
348-49.) Jacobs argued that because Floorco's intentions in
promising to pay and then changing its mind are relevant to
j) Ref. Nos. 20, 22, 26-28 Jacobs's promissory estoppel, equitable estoppel, and fraud
claims, “Johnson's testimony about the content, meaning,
Ref. Nos. 20, 22, 26-28 are a series of May 5, 6, and and intention behind his letter and e-mail [a]re material to
11, 2016, e-mails between Tu and Bayliss, which Floorco Plaintiff's case....” (Id. at 351.) In response, Floorco argued
argued were protected from disclosure by the attorney- that Johnson's actions were all taken within the scope of his
client privilege and the work product doctrine. (DN 38-1, at responsibilities as counsel for Floorco, that Johnson had no
PageID # 270-71.) Ref. Nos. 20, 22, 26-28 are confidential independent personal knowledge regarding the underlying
communications exchanged between representatives covered facts of the case, and that Jacobs could obtain the facts sought
by Ky. R. Evid. 503 and documents prepared by or for a through testimony from Floorco representatives themselves.
party or its representative within the meaning of Fed. R. (DN 46.)
Civ. P. 26(b)(3)(A). Further, they are communications for the
purpose of facilitating legal representation and contain either “Disqualification of an attorney sought to be called as a
an explicit discussion of legal advice and representation or witness for an opposing party is subject to a strict standard
an implied recognition of the need for legal advice sufficient of review because ‘a litigant may call his or her opponent's
to trigger the protection of the attorney-client privilege. Ref. attorney as a trial tactic, seeking to disqualify the opposing
Nos. 20, 22, 26-28 are not protected by the work product

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party's counsel as witness.’ ” Boodram v. Coomes, No. 1:12- Jacobs moved to strike the errata sheets submitted by Floorco
CV-00057-JHM, 2014 WL 12823642, at *7 (W.D. Ky. Nov. after the depositions of Bayliss and Berry. (DN 51.) The
20, 2014) (quoting Hall v. MLS Nat'l Med. Evaluations, Inc., Parties took the depositions of Bayliss and Berry on April 24,
No. 05-185-JBC, 2008 WL 533542, at *2-3, 2008 U.S. Dist. 2019. (DN 51, at PageID # 525.) On June 5, 2019, counsel for
LEXIS 15071 at *6-7 (W.D. Ky. Feb. 27, 2008)). See also Floorco sent a letter to the court reporter who transcribed the
Zurich Ins. Co. v. Knotts, 52 S.W.3d 555, 560 (Ky. 2001) depositions enclosing errata sheets purporting to make three
(“[D]isqualification is a drastic measure [that] courts should changes to Berry's deposition transcript and seven changes to
be hesitant to impose except when absolutely necessary.”). Bayliss's deposition. (DN 51-1.) Jacobs argued that, with one
Courts in this District have previously held that the Kentucky exception as to a change to correct spelling on Bayliss's errata
Supreme Court Rules governing professional conduct are sheet, the errata sheets all improperly attempted to make
“persuasive authority, if not governing standards, for practice substantive changes to the testimony of Berry and Bayliss in
before this Court.” Kittel v. C-Plant Fed. Credit Union, No. violation of the Federal Rules of Civil Procedure and Sixth
5:08-cv-114-TBR, 2010 WL 292689, at *1 (W.D. Ky. Jan. 20, Circuit caselaw interpreting the same. (DN 51, at PageID #
2010) (quoting Carlsen v. Thomas, 159 F.R.D. 661, 664 (E.D. 526-27.) In response, Floorco argued that a motion to strike
Ky. 1994)). SCR 3.130(3.7)(a) provides that “[a] lawyer shall was not the proper procedural tool to use, that there existed
not act as advocate at a trial in which the lawyer is likely to no live controversy for this Court to address at this time in
be a necessary witness unless ...” one of several exceptions the case, and that the changes listed on the errata sheets were
are met. Interpreting this rule, the Kentucky Supreme Court within the scope permitted by Fed. R. Civ. P. 30(e) and Sixth
in Zurich Ins. Co. v. Knotts reversed the disqualification Circuit case law interpreting the same. (DN 60.)
of an attorney where the moving party had failed to show
that the attorney's testimony was “important to [movant's] As to Floorco's initial argument that a motion to strike errata
proof at trial”; there was “any probability that [the attorney's] sheets is not proper, Rule 30(e) does not specify by what
testimony w[ould] conflict with that of other witnesses;” vehicle a movant should challenge an errata sheet that does
and that the testimony to be elicited from the attorney was not substantively or procedurally comport with the Rule.
“unattainable from other sources.” Knotts, 52 S.W.3d at Other courts in this Circuit have entertained a motion to strike
560. See also Commonwealth Orthopaedic Ctrs., P.S.C. v. under such circumstances. See, e.g., Ramirez v. Bolster &
Philadelphia Indemn. Ins. Co., No. 09-109(WOB), 2010 WL Jeffries Health Care Grp., LLC, No. 1:12-cv-205-GNS, 2016
4568805, at * 3 (E.D. Ky. Nov. 3, 2010). WL 4132294, at *3 (W.D. Ky. Aug. 3, 2016) (collecting
cases); James T. Scatuorchio Racing Stable, LLC v. Walmac
*11 Applying these principles to the instant case, the Court Stud Mgmt., LLC, No. 5:11-374-DCR, 2014 WL 1744848, at
finds that Jacobs has not demonstrated that Johnson is a *3 (E.D. Ky. Apr. 30, 2014). Accordingly, the Court finds no
necessary witness in the instant action. Johnson does not error in addressing Jacobs's Motion. Likewise, the Court is
appear to have personal knowledge of any fact related to unpersuaded by Floorco's argument that no live controversy
the action other than those gained through his representation exists regarding the challenged errata sheets because Floorco
of Floorco. Further, to the extent Jacobs seeks testimony had not yet attempted to use the changes in support of
regarding Floorco's intentions with respect to his pay, Jacobs their substantive arguments. Floorco presented no binding
has not demonstrated that this testimony is unattainable authority to support the application of this concept at this
from other sources, specifically Floorco's directors and level of review when the larger case and controversy of the
managers. Additionally, Jacobs's Motion underestimates claims detailed in Jacobs's complaint remain pending before
the prejudice disqualification would work on Floorco by the Court. Accordingly, the Court will now address Jacobs's
emphasizing the number of other lawyers at Johnson's firm motion.
who could undertake Floorco's representation. Regardless of
their number, no attorney could immediately match Johnson's
“knowledge of the case” or “the degree of confidence and
1. Legal Standard
trust” Johnson has developed with Floorco. Knotts, 52 S.W.3d
at 560. Accordingly, Jacobs's Motion (DN 41) will be denied. Fed. R. Civ. P. 30(e)(1) provides that

(1) Review; Statement of Changes. On request by the
C. Jacobs's Motion to Strike (DN 51) deponent or a party before the deposition is completed, the

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responded by stating that her claim was based on her 2005
deponent must be allowed 30 days after being notified by
termination, which was different from her prior deposition
the officer that the transcript or recording is available in
testimony. The district court refused to consider a claim
which:
based on plaintiff's 2005 termination given her deposition
(A) to review the transcript or recording; and testimony, and the Sixth Circuit affirmed. In doing so, the
Sixth Circuit observed in passing that once plaintiff realized
(B) if there are changes in form or substance, to sign her deposition testimony regarding the scope of her claims
a statement listing the changes and the reasons for was incorrect, “[u]nder Rule 30(e)(1)(B), she had thirty
making them.” days following her deposition to make changes ‘in form or
Fed. R. Civ. P. 30(e)(1). The Rule does not define what it substance.’ [Plaintiff] was, after all, under a general duty
means by “changes in form or substance.” However, in Trout to supplement or correct discovery responses.” Id. at 568
v. FirstEnergy Generation Corp., 339 F. App'x 560 (6th Cir. (quoting Fed. R. Civ. P. 30(e)(1)(B)). Floorco contended this
2009), the Sixth Circuit suggested that Rule 30(e)(1) does not language suggested that a deponent may make substantive
allow a deponent to change his or her testimony under oath. changes to his or her deposition testimony and criticized
The Sixth Circuit explained, “Rule 30(e) does not allow one Jacobs for relying on Trout, an unpublished Sixth Circuit case,
to alter what was said under oath. If that were the case, one over Carter, which is published binding precedent. (DN 60,
could merely answer the questions with no thought at all[ ], at PageID # 566.) However, the Court does not read Carter
then return home and plan artful responses.... A deposition is to fully support the proposition for which it is offered by
not a take home examination.” Id. (citations omitted) (quoting Floorco because other than simply quoting the language of
Tuttle v. Tyco Elecs. Installation Servs., Inc., No. 2:06-cv-581, Rule 30, the Carter court did not offer any explanation of
2008 WL 343178, at *4 (S.D. Ohio Feb. 7, 2008)). Though what it means by the term “form or substance.” Further, the
unpublished and only discussed in passing, a majority of language by the Carter opinion was mere dicta and the issue
district courts within the Sixth Circuit have interpreted Trout of the interpretation of Rule 30(e) was not squarely before that
to provide that an errata sheet is not a vehicle for a deponent court. Skanska, 278 F.R.D. at 410 n.1. Accordingly, the Court
to make substantive changes to deposition testimony.10 finds both the language and reasoning of Trout to be the proper
approach, especially in light of the many decisions from other
*12 Floorco cited to Carter v. Ford Motor Co., 561 F.3d district courts in this Circuit reaching the same conclusion.
562, 568 (6th Cir. 2009), in support of the proposition that a
deponent can make substantive changes beyond corrections
to typographical errors. (DN 60, at PageID # 566.) In Carter,
2. Analysis
the Sixth Circuit affirmed the district court's grant of summary
judgment to the defendant in a sex discrimination and Family Berry's errata sheet listed three proposed changes as follows:
Medical Leave Act case. Carter, 561 F.3d at 563. In response
to defendant's motion for summary judgment, plaintiff had
Page Line Transcript Reads Transcript Should Read

21 10 Yes Yes, he became a W-2 employee in
2005.

21 12 Yes Yes, he was a W-2 employee.

31 12 Yes Yes, but I don’t know what the
arrangement between Mike and Paul
was.
was not necessary given the alterations proposed. Berry's
(DN 51-1, at PageID # 531.) The listed reason for each initial response to whatever question was asked of him was
of the three changes was “clarification.” (Id.) Though no an unqualified “yes.” To allow any additional change to
Party attached Berry's deposition so the Court could view offer qualifying explanation along with his “yes” is a change
the answers and proposed revisions in context, the same beyond the scope contemplated by Trout. Accordingly,

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Bayliss's errata sheet listed seven proposed changes, only six
Jacobs's motion (DN 51) will be granted as to Berry's errata
of which Jacobs challenged in his instant motion, as follows:
sheet.

Page Line Transcript Reads Transcript Should Read

46 12 Salaried employee. Salaried W-2 employee

150 21 Yes. Yes, but only because Patricia Major
stated that Floorco had to pay the
money.

189 19 Employee W-2 employee

189 24 Employee W-2 employee

194 12 He-Paul most likely promised Mike in If this happened, Paul would most
their conversation. likely have made the promise in their
conversation. But I was not privy to
their conversations and don’t know if
a promise was made.

114 25 This e-mail is not about whether This e-mail is not about whether
he was paid or not, it’s whether to he was paid or not. It’s about the
accrue payroll that wasn’t paid. It’s accrual.
about the accrual.
*13 Jacobs moved to compel Floorco to produce its
(DN 51-1, at PageID # 533.) Again, the listed reason for President, Tu, who resides in China, for a deposition. (DN
all of the above changes was “clarification.” (Id.) Here 75.) The Parties attempted to compromise to schedule Tu's
again, Bayliss's proposed changes do not appear to be deposition over the course of several months, as detailed in
made for the purpose of correcting typographical errors or Jacobs's Motion (DN 75) and Floorco's Response (DN 86).
other transcription errors. Floorco did not argue that the
court reporter inaccurately transcribed Bayliss's testimony, Jacobs first requested Tu's deposition on November 19, 2018,
and Jacobs's submitted an affidavit from the court reporter and followed up regarding his request multiple times in the
who transcribed Bayliss and Berry's depositions affirming months thereafter. (DN 75, at PageID # 648; DN 75-1, at
that the original transcript she prepared accurately reflected PageID # 663-66.) On February 21, 2019, Jacobs unilaterally
the testimony given by Bayliss and Berry (DN 51-2). noticed Tu's deposition for May 30, 2019, at counsel's office
Bayliss's revised responses qualify her initial responses to in Louisville. (DN 35; DN 75-1, at PageID # 668.) However,
an impermissible degree—in some cases dramatically. To Jacobs's counsel e-mailed Floorco's counsel the same date
permit Floorco to amend testimony in this manner after indicating that he was willing to reschedule the deposition
the deposition has closed when Jacobs's counsel has no for a different date if more convenient for Tu. (DN 75-1,
reasonable opportunity to ask follow up questions would at PageID # 668.) In response, Floorco's counsel indicated
“defeat the purpose of the discovery deposition process.” that he would reserve the date on his calendar but did “not
Ramirez, 2016 WL 4132294, at * 3. Instead, Bayliss's have authorization to state that [Floorco] w[ould] make Paul
opportunity to further explain or clarify her deposition Tu available on that date and time.” (Id. at 666.) When
testimony will come at any trial of this matter. Id. Jacobs's counsel reached out to confirm the deposition was
Accordingly, Jacobs's motion (DN 51) will likewise be going forward as scheduled in early May, he was informed by
granted as to Bayliss's errata sheet. Floorco's counsel that Tu was not going to be able to travel
to the United States before the end of the discovery period.
D. Jacobs's Renewed Motion to Compel the Deposition (Id. at 669-71; DN 75-3.) The Parties discussed taking Tu's
of Paul Tu (DN 75) deposition via video or teleconferencing but there was some

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concern that this sort of deposition would put the Parties and/ obtained from a Chinese law firm, which it had translated
or Tu in violation of Chinese law. (Id. at 670.) by an attorney in Floorco's counsel's office who is fluent in
Chinese. (Id. at 758 n.2.) The legal opinion, as translated,
On June 10, 2019, Jacobs filed his first motion to compel stated, “Currently, there is no law requiring that a foreign
Tu's deposition. (DN 50.) Thereafter, the Parties reached an court can obtain a witness' statements only when such witness
agreement to take Tu's deposition remotely and filed a motion testifies in the court, and the law does not preclude a witness
with the Court to extend the discovery deadline to allow the from testifying through two-way audiovisual transmission
Parties additional time to complete the deposition. (DNs 57, technologies.” (DN 86-12, at PageID # 780.) Floorco also
75-11, 86-3, 86-4, 86-5, 86-6, 86-7, 86-8.) However, the court attached a declaration from Tu in which he represented under
reporter Jacobs selected to take Tu's deposition advised her penalty of perjury that he did not oppose Jacobs's request
that her company could no longer facilitate the deposition to take his deposition and affirmed that he was “currently
because she had been informed by the U.S. Embassy in under a court order precluding [him] from traveling outside
China that the deposition would violate Chinese law and of mainland China in relation with a civil litigation [he
could subject the participants to criminal penalties.11 (DNs was] involved in mainland China, unrelated to the present
61-2, 75-5.) Though Floorco argued that the court reporter case.” (DN 86-11, at PageID # 777.) Tu even represented
appeared to be misunderstanding the advice she received from that he attempted to buy a plane ticket to Hong Kong online
the Embassy, Jacobs's counsel refused to take the deposition but a message popped up indicating a ticket could not be
remotely from China given the advice he received. (DNs 75-6, issued to him due to travel restrictions. (Id. at 777-78) In his
86-10, 86-13.) reply, Jacobs maintained that Floorco had not demonstrated
that a remote deposition was legal under Chinese law and that
*14 The Parties then-explored the possibility of taking the special circumstances existed in this matter to make Kentucky
deposition while Tu was in Hong Kong and scheduled Tu's the proper venue for Tu's deposition. (DN 87.)
deposition for August 29-30, 2019 to be taken remotely from
Hong Kong. (DNs 72, 75-7, 75-8, 86-1, 86-2.) Because the
Parties had reached an agreement, the Court denied Jacobs's 1. Legal Standard
initial motion to compel without prejudice, granting Jacobs
leave to refile if the deposition did not take place as scheduled. Pursuant to Fed. R. Civ. P. 30, a party may depose any
(DN 71.) However, in confirming the August deposition person. While a deponent's attendance may be compelled by
dates, Floorco's counsel alerted Jacobs's counsel that Tu was subpoena, if necessary, under Fed. R. Civ. P. 45, “a subpoena
facing legal trouble in China and was prohibited by a Chinese is not necessary if the person to be examined is a party
Court from leaving mainland China until the issue was or an officer, director, or managing agent of a party.” 8A
resolved. (DN 75-8.) Two days before the scheduled August Charles Alan Wright & Arthur R. Miller, Federal Practice
deposition, Floorco's counsel informed Jacobs's counsel that and Procedure Civil § 2107 (3d ed. Aug 2019). Instead, “if
Tu would not be able to travel to Hong Kong for the deposition a corporation is a party, the [deposition] notice compels it
and again offered a remote deposition from China. (DN to produce any officer, director or managing agent named in
75-10.) The instant motion followed. the deposition notice.” El Camino Res. Ltd. v. Huntington
Nat. Bank, No. 1:07-CV-598, 2008 WL 2557596, at *2 (W.D.
Jacobs argued that the Court should compel Tu to appear in Mich. June 20, 2008); see also Martin Cty. Coal Corp. v.
person for his deposition in Kentucky. (DN 75, at PageID Universal Underwriters Ins. Services, Inc., No. 08-93-ART,
# 653-57.) In response, Floorco argued that Jacobs should 2010 WL 4629761, at *2 (E.D. Ky. Nov. 8, 2010); E.E.O.C.
have to take the deposition where Tu is located.12 (DN 86, v. Honda of America Mfg., Inc., No. 2:06-CV-0233, 2007 WL
at PageID # 755-58.) Further, Floorco argued that Jacobs had 682088, at *1 (S.D. Ohio Feb. 28, 2007). As to the location
not yet attempted to utilize the Hague Convention to take of a noticed deposition, generally, “an examining party may
Tu's deposition and that alternatively Jacobs could take Tu's set the place for the deposition of another party wherever he
deposition remotely while Tu was located in China. (Id. at wishes subject to the power of the court to grant a protective
758.) Floorco viewed the court reporter's e-mail regarding the order under Rule 26(c)(2) designating a difference place.”
legality of taking Tu's deposition remotely to only cover a Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987)
situation where the attorneys traveled to China to conduct a (quoting Wright & Miller, Federal Practice and Procedure
deposition. (Id. at 759.) Floorco attached a legal opinion it Civil, § 2112); see also In re FCA US LLC Monostable Elect.

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Gearshift Litg., No. 16-MD-02744, 2017 WL 4216193, at 2012)). Here, Floorco did not offer any proof that appearing
*3 (E.D. Mich. Sept. 22, 2017). District courts in the Sixth for a deposition in Kentucky would impose a significant
Circuit have held that a rule has “evolved” such that “in disruption on Tu's life and business. Indeed, the Parties'
federal litigation, in the absence of special circumstances, a correspondence in attempting to schedule Tu's deposition
party seeking discovery must go where the desired witnesses recognized that Tu did sometimes travel to the United States
are normally located.” Id. Here, Tu is a resident of China, for business, which suggests that the disruption, if any, to Tu
and therefore, generally, it would be Jacobs's obligation to would be minimal. (See DN 75-1.) The Court notes that it
depose Tu in China. Jacobs admitted that absent special appears requiring Jacobs to attempt to take Tu's deposition in
circumstances, he would be required to travel to where the China would impose a significant hardship and inconvenience
witness is located for a deposition but argued that special on counsel given the logistics involved of attempting to
circumstances existed here to justify forcing Tu to travel arrange and attend such a deposition. Accordingly, the Court
to Kentucky for his deposition. (DN 87, at PageID # 787.) concludes that the convenience factor weighs in favor of
“[D]istrict courts within the Sixth Circuit have considered requiring Tu to appear for a deposition in Kentucky.
the factors of cost, convenience, and litigation efficiency” in
determining whether special circumstances exist to overcome As to the final factor, litigation efficiency, the Court
the general rules regarding the location for a deposition. recognizes that requiring the Parties to attempt to conduct a
Schall v. Suzuki Motor of America, Inc., No. 4:14-cv-74- deposition in China will substantially impair, if not eliminate,
JHM, 2017 WL 5622498, at *4 (W.D. Ky. Nov. 21, 2017) this Court's ability to intervene if a discovery dispute arises
(objections to magistrate judge's order overruled in Schall v. during Tu's deposition. Further, Jacobs argued that it is
Suzuki Motor of America, Inc., No. 4:14-cv-749-JHM, 2018 “impossible” or at least “highly unlikely” that the Hague
WL 283266, at *1 (W.D. Ky. Jan. 3, 2018)). Convention procedure would result in a deposition of Tu.
(DN 87, at PageID #787-88.) In support of his argument,
Jacobs cited to an article and publication from the American
Bar Association suggesting that China rarely grants such
2. Analysis
requests. (Id. at 788 n.6.) Floorco has not pointed the Court
*15 As to the first factor, cost, Jacobs argued that Floorco to any authority suggesting that it is likely any request
has “nearly limitless resources” and is more capable of submitted by Jacobs to take Tu's deposition pursuant to
bearing the burden of international travel than Jacobs, an the Hague Convention would be granted, nor was the
individual. (DN 87, at PageID # 787.) If a difference in Court able to find any reliable authority that suggested
available funds for travel were sufficient to overcome the the same. The Court is unpersuaded by Floorco's reading
presumptive location for a deposition, then the rule requiring of the communications Jacobs received from his chosen
depositions to take place at the corporation's principal place court reporter and the U.S. Embassy in China regarding
of business in the case of a Rule 30(b)(6) deposition or the the legality of taking a remote deposition and the purported
witness's location in the case of Rule 30(b)(1) deposition legal opinion it obtained in support. The Court was provided
never would never have arisen. As the Court has previously with no information regarding the reliability of the legal
observed, “the Court will not permit the parties' relative size advice provided by the Chinese firm or the accuracy of the
and resources alone to control the outcome in disputes....” translation. Further, the opinion did not purport to rely on any
Pogue v. Northwestern Mut. Life Ins. Co., No. 3:14-cv-598- particular source of Chinese law that the Court could use to
CRS-CHL, 2016 WL 2343898, at *3 (W.D. Ky. May 3, verify its interpretation of the same. The Court will neither
2016). Accordingly, the Court finds that the cost factor, and direct nor encourage the Parties to engage in potentially
more specifically, Jacobs's argument regarding the respective illegal conduct. Because attempting to take the deposition
resources of the Parties, is non-dispositive of the instant issue. of Tu in China does not appear likely to succeed under the
Hague Convention process and a remote deposition appears
The second factor, convenience, looks to “whether there is unlawful, the Court concludes the convenience factor weighs
any hardship to counsel, where the deponent lives, and to what in favor of compelling Tu to appear for a deposition in
extent the deponent's affairs may be disrupted by having to Kentucky.
travel to the site of the deposition.” Schall, 2017 WL 5622498,
at *6 (citing MEMC Elect. Materials v. Balakrishnan, No. *16 Despite Floorco's attempts to distinguish it, the Court
2:12-cv-344, 2012 WL 1606053, at *3 (S.D. Ohio May 8, finds this case to be similar to Recaro N. Am., Inc.

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v. Holmbergs Childsafety Co., No. 09-12256, 2011 WL Instead, the Court will require the Parties to meet and confer
5864727, at *3, 2011 U.S. Dist. LEXIS 134978 at *8 (E.D. as to the issue and propose a deadline for Tu's deposition to
Mich. Nov. 22, 2011), relied upon by Jacobs. In Recaro, the the Court in submitting the revised scheduling order required
plaintiff served notices to take the Rule 30(b)(6) depositions by the Court's November 25, 2019, and December 16, 2019,
of certain Swedish and Chinese corporate defendants and the Orders (DNs 90, 94).14 Because the Parties had previously
Rule 30(b)(1) depositions of certain officers, directors, and agreed to take Tu's deposition remotely from Hong Kong,
managing agents of those companies at plaintiff's counsel's the Court emphasizes that its instant ruling does not prohibit
office in Michigan. Id. at *2-3. Defendants objected that the Parties from making other arrangements to take Tu's
the depositions should have to take place in the respective deposition to the extent they can agree to do so.
country of each deponent pursuant to the Hague Convention.
Id. at *3. The United States District Court for the Eastern
District of Michigan found that special circumstances existed III. ORDER
to justify requiring that the depositions be conducted in For the reasons set forth above, IT IS HEREBY ORDERED
Michigan. Id. at *8. The court noted that the defendant had as follows:
not raised the applicability of the Hague convention until
near in time to the close of fact discovery and cited that (1) Jacobs's Motion to Compel (DN 38) is GRANTED IN
defendants had previously been content to proceed under the PART and DENIED IN PART as set forth herein. On or
Federal Rules. Id. at *6-7. The court noted that defendants did before April 13, 2020:
business in Michigan and that “Michigan has a strong interest
in protecting its corporate citizens from defective, foreign (a) Floorco is directed to produce Ref. Nos. 1-5, 8, 11, 13,
manufactured equipment.” Id. at *7. The court emphasized 15-19, and 23-25.
that affidavits submitted by the defendants suggested that
(b) Floorco is directed to produce copies of Ref. Nos. 6-7,
the court could not assume any request to the Sweden and
9-10, 12, 14, and 21 redacted as set forth in Section II(A)
Hong Kong authorities to approve the depositions would be
(2) above.
granted, that the deponents were involuntary witnesses, and
that defendants could not ensure the witnesses' attendance at (c) Floorco shall determine whether the attachments to Ref.
overseas depositions. Id. Therefore, the court concluded that No. 25 have already been produced. If so, Floorco shall
special circumstances justified applying the Federal Rules advise Jacobs in writing of that fact. If not, Floorco is
to the depositions in lieu of the Hague Convention and directed to either produce the attachments, if responsive,
requiring the deponents to appear in Michigan. However, the or, if privileged or protected from disclosure by the work
court did require the plaintiff's counsel to “pay the travel product doctrine considering the analysis in the Court's
expenses, including reasonable airfare, hotel, food, and rental instant opinion, list the attachments on an amended
car expenses if needed for each deponent.” Id. at *9. Like in privilege log.
Recaro, Floorco is organized as a Kentucky limited liability
company, holds a corporate license to do business here, and (d) Floorco shall serve an amended privilege log reflecting
appears to intend to continue to do business here. (DN 87, the documents withheld and the reason for withholding
at PageID # 787.) Further, there is no indication that the them in accordance with this opinion.
Chinese authorities will approve Tu's deposition. While Tu is
a willing witness, unlike the witnesses in Recaro, the Court is (2) Jacobs's Motion to Disqualify (DN 41) is DENIED.
persuaded that a finding of special circumstances is warranted
(3) Jacobs's Motion to Strike (DN 51) is GRANTED. All
here.13
proposed changes on the errata sheets for the depositions of
Richie Berry and Freida Bayliss are struck except for the sole
Accordingly, the Court will grant Jacobs's Motion to Compel
change in the spelling of “Nu-Kote” listed on Bayliss's errata
Tu to appear for a deposition in Kentucky. However, in the
sheet. On or before April 13, 2020, Floorco shall prepare and
face of both Tu's sworn testimony that he is not permitted at
serve amended errata sheets in accordance with this opinion
present to travel outside of China and the current restrictions
and serve a copy of the same on Jacobs to be attached to
imposed by the United States and other countries on travel in
Bayliss and Berry's depositions. Floorco shall also serve a
light of COVID-19, the Court will not yet impose a deadline
as to when Tu must travel to Kentucky for his deposition.

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(5) On or before March 31, 2020, the Parties shall submit
copy of the instant opinion and amended errata sheets on the
a revised scheduling order, as required by the Court's
court reporter who transcribed the depositions at issue.
November 25, 2019, and December 16, 2019, Orders (DNs
90, 94), that includes a proposed deadline for Tu's deposition.
*17 (4) Jacobs's Renewed Motion to Compel the Deposition
of Paul Tu (DN 75) is GRANTED. Tu shall appear for his
deposition in Kentucky or in any other location as to which All Citations
the Parties can agree he may be produced.
Slip Copy, 2020 WL 1290607

Footnotes
1 The Court previously denied Jacobs's initial motion to compel Paul Tu's deposition (DN 50) as moot given the Parties'
then-agreement to conduct the deposition. (DN 71.)
2 No party produced a copy of the actual request or Floorco's response for the Court's review.
3 Tu stated in his affidavit that “[t]he e-mails [he] subsequently exchanged with Richie Berry and Freida Bayliss with regard
to Michael Jacobs [after Jacobs's February 4, 2015, e-mail] were created because of Michael Jacobs' [sic] threat to
sue.” (DN 43-1, at PageID # 370.) Bayliss likewise stated that in light of the e-mail from Jacobs in February 2015, “[t]he
e-mails [she] subsequently exchanged with Paul Tu and/or Richie Berry regarding Michael Jacobs were created after
and because of Michael Jacobs' [sic] threat to sue Floorco for the purpose of preparing for the prospect of litigation.” (DN
43-2, at PageID # 372.) Richie Berry's affidavit included a similar statement. (DN 43-3, at PageID # 374) (“The e-mails
I exchanged with Paul Tu and/or Freida Bayliss after receipt of the February 4, 2015 e-mail were created because of
Michael Jacobs' [sic] threat to sue Floorco and in preparation for the prospect of litigation.”).
4 In the instant opinion, the Court will refer to the e-mails on Floorco's privilege log by the reference number (“Ref. No.”)
assigned to each in the first column on the log. (DN 38-1.)
5 Jacobs's February 11, 2015, e-mail is not listed on the privilege log, and therefore, the Court has no reason to believe
a discussion of the content of the same is inappropriate herein.
6 Though Tu and Berry indicated in their respective affidavits that the e-mails the two exchanged were “created because
of Michael Jacobs' [sic] threat to sue,” the Court concludes this is at least partially a question of law for the Court's
determination, not a factual question for the Parties. (DN 43-1, at PageID # 370; DN 43-3, at PageID # 374.) To find
otherwise would mean that any party could trigger the protection of the work product doctrine anytime it could find a
witness willing to swear that the purpose for the creation of a particular document was the threat of litigation. Though the
Court does not question the veracity of Tu and Berry's beliefs, the same are not dispositive of the instant case given the
content and context of the messages they exchanged.
7 Again, though Bayliss's affidavit contained the same statement as Tu's and Berry's that the e-mails she exchanged with
Tu “were created because of Michael Jacobs' [sic] threat to sue Floorco,” the Court finds it is not bound by the same for
the same reasons set forth in the previous footnote. (DN 43-3, at PageID # 374.)
8 Though Floorco argued that Berry had the same authority, the Court need not address whether Berry falls within the
provisions of Ky. R. Evid. 503(a)(2) because all of the e-mails on Floorco's privilege log as to which it claimed the attorney-
client privilege were exchanged between Tu and Bayliss. (DN 38-1.)
9 The Court notes that Ref. No. 25 appears to contain attachments that are not listed individually on the privilege log.
Because the attachments are not listed on the privilege log, the Court must assume that the same are either non-
responsive to Jacobs's propounded discovery requests or have already been produced. The Court will direct Floorco to
determine whether the attachments to Ref. No. 25 have already been produced. If so, Floorco should advise Jacobs of that
fact. If not, Floorco is directed to either produce the attachments, if responsive, or, considering the Court's instant opinion,
if protected by either the attorney-client privilege or the work product doctrine, list the attachments on the amended
privilege log the Court will direct Floorco to produce below.
10 See Caudill Seed & Warehouse Co., Inc. v. Jarrow Formulas, Inc., No. 3:13-cv-82-CRS, 2019 WL 1435934, at *5 n.1
(W.D. Ky Mar. 29, 2019); Ramirez v. Bolster& Jeffries Health Care Grp., LLC, No. 1:12-cv-205-GNS, 2016 WL 4132294,
at *3 (W.D. Ky. Aug. 3, 2016) (collecting cases); James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC,
No. 5:11-374-DCR, 2014 WL 1744848, at *3 (E.D. Ky. Apr. 30, 2014); Clare v. Chrysler Grp., LLC, No. 13-11225, 2014
WL 2515212, at *1 (E.D. Mich. June 4, 2014); Walker v. 9912 E. Grand River Assocs., LP, No. 11-12085, 2012 WL
1110005, at *3-4 (E.D. Mich. Apr. 3, 2012); Giebel v. Lavalley, No. 5:12-CV-750, 2013 WL 6903784, at *4-5 (N.D. Ohio

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Dec. 31, 2013); Hall v. U.S. Cargo & Courier Service, LLC, No. 2:16-CV-330, 2019 WL 2524424, at *2 (S.D. Ohio June
18, 2019); Tchankpa v. Ascena Retail Grp., Inc., No. 2:16-CV-895, 2018 WL 1472527, at *1 (S.D. Ohio Mar. 26, 2018);
European Pensions Mgmt. Ltd. v. Columbus Life Ins. Co., No. 1:16-CV-542, 2017 WL 4540233, at *12 (S.D. Ohio Oct.
11, 2017); Horter Inv. Mgmt., LLC v. Cutter, No. 1:15-CV-00477, 2017 WL 1424327, at *3 (S.D. Ohio Apr. 20, 2017);
McClendon v. Hightowers Petroleum Co., No. 1:14-CV-00619, 2016 WL 2859625, at *2 (S.D. Ohio May 16, 2016); Jones-
McNamara v. Holzer Health Systems, Inc., No. 2:13-CV-616, 2015 WL 196048, at *4 (S.D. Ohio Jan. 14, 2015); Mullins
v. Cyranek, No. 1:12-CV-384, 2014 WL 3573498, at *2 (S.D. Ohio July 21, 2014); Lewis v. Hawkins, No. 3:16-CV-315-
TAV-HBG, 2017 WL 4322825, at *6, 2017 U.S. Dist. LEXIS 162003 at *16 (E.D. Tenn. Sept. 28, 2017); Dentsply Int'l v.
U.S. Endodontics, LLC, No. 2:14-CV-196, 2015 WL 12672022, at *, 2014 U.S. Dist. LEXIS 181352 at *4 (E.D. Tenn. Nov.
18, 2014); CNB Bancshares, Inc. v. StoneCastle Sec. LLC, No. 3:09-CV-33, 2012 WL 2887256, at *3 (E.D. Tenn. July 13,
2012); Jeffries v. Emerson Indus. Automation, No. 14-CV-2431-SHL-TMP, 2015 WL 11019142, at *1 (W.D. Tenn. Aug.
6, 2015); Hensley v. Methodist Healthcare Memphis, No. 13-2436-STA-CGC, 2014 WL 11514824, at *2 (W.D. Tenn.
July 28, 2014); Taylor v. W. Tenn. State Penitentiary, No. 2:11-CV-02843-CGC, 2014 WL 2036048, at *2 (W.D. Tenn.
May 16, 2014); E.E.O.C. v. Skanska USA Building, Inc., 278 F.R.D. 407, 412 (W.D. Tenn. 2012). But see Hank v. Great
Lakes Constr. Co., No. 1:16-CV-02104, 2017 WL 10127362, at *1 n.3 (N.D. Ohio Aug. 2, 2017), reconsideration denied,
2017 WL 10127363 (N.D. Ohio Aug. 21, 2017); Jermano v. Graco Children's Products, Inc., No. 13-CV-10610, 2015 WL
1737548, at *2 (E.D. Mich. Apr. 16, 2015).
11 The e-mail the court reporter received from the U.S. Embassy appeared to be copied from the U.S. Department of State's
Judicial Assistance Country Information page for China, which stated under the heading “Taking Voluntary Depositions
of Willing Witnesses” that:
China does not permit attorneys to take depositions in China for use in foreign courts. Under its Declarations and
Reservations to the Hague Evidence Convention and subsequent diplomatic communications, China has indicated
that taking depositions, whether voluntary or compelled, and obtaining other evidence in China for use in foreign courts
may, as a general matter, only be accomplished through requests to its Central Authority under the Hague Evidence
Convention. Consular depositions would require permission from the Central Authority on a case by case basis and the
Department of State will not authorize the involvement of consular personnel in a deposition without that permission.
Participation in such activity could result in the arrest, detention or deportation of the American attorneys and other
participants.
Judicial Assistance Country Information: China, https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-
Country-Information/China.html (last visited Mar. 12, 2019). Compare id., with DN 75-5.
12 Floorco also argued that Jacobs's motion was not properly brought because it did not oppose taking Tu's deposition. (DN
86, at PageID # 751.) Floorco's argument is misplaced given that Jacobs has noticed at least two depositions for Tu and
because Floorco does oppose presenting Tu for deposition in Kentucky as requested by the present motion.
13 Because Floorco did not request cost-shifting if the Court granted Jacobs's motion, the Court does not address the
propriety of the same herein.
14 The Court understands that scheduling Tu's deposition is likely to involve many factors outside of the control of the
Parties. The Parties are directed to do their best to develop a scheduling order that accommodates those factors and
are advised that the Court will consider all factors in both setting and ruling on a request for an extension of the deadline
for Tu's deposition.

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