action is being litigated. This not only permits predictability in prospective litigation, it also pragmatically permits the trial court to resolve disputes which may take place during the course of deposition without undue expenditure of time, both the parties' and the court's. It is a secondary policy that depositions should be taken where the deponent works or resides. Third, when these two rules conflict, the court will consider the nature of the testimony and for which party the testimony will be offered. If plaintiff wishes to depose a liability witness, it should bear the expense of going to the witness. If defendant wishes to establish an affirmative defense by deposing a witness, it should bear the inconvenience of going to the witness. Fourth, the court will examine the nature of the witness himself. As a general rule, status of a witness as a party tips the balance in favor of requiring him to come to the forum, while non-party witnesses should be deposed "at home."
In light of these factors, it is preferable to depose a plaintiff's designated representative in the forum that plaintiff has chosen, in this case the Western District of Pennsylvania. 3M suggests that it did not "choose the forum" because it could only bring this action in one venue, the Western District of Pennsylvania, where Dacar does business. It is true that frequently plaintiffs do not choose the forum in the sense of selecting the one most advantageous forum from many available. Nonetheless, it is plaintiffs which make the primary choice to bring suit or not, and thus choose a forum. It is only appropriate that in making that decision plaintiffs must consider the costs of prosecuting that suit, rather than rely on shifting the cost onto defendants before adjudication on the merits.
We also do not give much weight to the distinction which 3M would have us draw between officer, director, or managing agent, and an "ordinary employee." Whether ordinary or not, Mr. Litman here is to be deposed as 3M's designated representative on a variety of subjects relevant to 3M's complaint and Dacar's defenses, and stands on the same footing as an officer, director, or managing agent.
This decision does not, as 3M suggests, open a wedge for defendant Dacar to harass and impede 3M's business operations by requiring indispensable 3M scientific and management employees to travel to Pittsburgh for days on end. First of all, counsel for both 3M and Dacar are proficient and experienced and can be trusted to resolve the vast majority of disputes amicably. Secondly, our decision here that a senior patent counsel for 3M who is a designated representative must travel to Pittsburgh does not give Dacar carte blanche to notice depositions of all 3M witnesses in Pittsburgh. In fact, it is clear that with the exception of the very few witnesses in Mr. Litman's class, depositions shall be taken at a witness' residence or place of business.
For the foregoing reasons, it is therefore
ORDERED, that defendant Dacar Chemical Company's Motion to Compel the attendance of Mark A. Litman, Esquire, at a deposition to be taken in Pittsburgh, Pennsylvania, is granted.