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Gilbert v. E.I. Dupont De Nemours & Co.

United States District Court, D. Connecticut

June 9, 2016

JEFFREY N. GILBERT
v.
E.I. DUPONT DE NEMOURS & CO., AXALTA COATING SYSTEMS, LLC and PASSONNO PAINTS, INC.

          RULING ON AXALTA COATING SYSTEMS, LLC AND PASSONNO PAINTS, INC.’S MOTIONS FOR PROTECTIVE ORDER [Doc. ##39, 40]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are the motions of defendants Axalta Coating Systems, LLC ("Axalta") and Passonno Paints, Inc. ("Passonno"), seeking orders of protection from the production of documents sought in connection with two notices of deposition served by plaintiff, Jeffrey N. Gilbert ("plaintiff"). [Doc. ##39, 40]. Plaintiff has filed a Memorandum of Law in Opposition to Axalta and Passonno's Motions for Protective Order. [Doc. ##41, 44]. Axalta and Passonno have each filed a reply to plaintiff's opposition. [Doc. ##43, 47]. For the reasons articulated below, the Court GRANTS Axalta and Passonno's Motions for Protective Order. [Doc. ##39, 40].

         A. Background

         Plaintiff brings this products liability action against Axalta, Passonno, and a defendant not implicated by the Motions for Protective Order, E.I. Du Pont de Nemours & Co. See Doc. #1, Complaint. Upon the referral of District Judge Alvin W. Thompson, on October 28, 2015, the undersigned conducted a telephonic case management and scheduling conference. [Doc. ##36, 38]. Following this conference, the Court entered a Scheduling Order requiring, inter alia, that all written discovery be served and responded to on or before February 5, 2016. [Doc. #37 at 1]. Depositions of all fact witnesses were to be completed by April 29, 2016. Id. Fact discovery also closed on April 29, 2016. Id.

         On April 19, 2016, just ten days before the fact witness deposition deadline and the close of discovery, plaintiff served via electronic mail three notices of deposition, one directed to each named defendant. The notice directed to Axalta set a deposition for April 28, 2016, of "an individual at Axalta ... with the most knowledge of Axalta['s] ... paint products, testing of their paint products, warnings about their paint products, sales of their paint products, and of the facts which are the subject of this action." [Doc. #39-2]. The notice also included a Request to Produce at Deposition seven categories of documents. Id.

         Similarly, the notice directed to Passonno set a deposition for April 28, 2016, of "an individual at Passonno ... with the most knowledge of Passonno['s] ... paint products, testing of their paint products, warnings about their paint products, sales of their paint products, and of the facts which are the subject of this action, " [Doc. #40-2]. The notice similarly included a Request to Produce at Deposition seven categories of documents. Id.

         In accordance with the Local Rules, counsel for plaintiff and defendants Axalta and Passonno (hereinafter Axalta and Passonno are collectively referred to as the "defendants") held a good faith meet and confer to discuss defendants' objections to the April 19, 2016, notices of deposition. As a result, the parties have reached a tentative resolution of all issues, except the Requests to Produce at Deposition seeking document production. Presumably as a result of this meet and confer, on May 12, 2016 and May 24, 2016, plaintiff re-issued the respective Notices of Deposition, each of which (six in total) contemplates a different topic of examination, and which seek the same Requests to Produce at Deposition, albeit now distributed amongst the separate notices. See Doc. ##41-1, 43, 44-1, 47. Defendants do not object to the depositions of their respective corporate representatives.

         B. Legal Standard

         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Notwithstanding the breadth of the discovery rules, the district courts are afforded discretion under Rule 26(c) to issue protective orders limiting the scope of discovery. See Fed.R.Civ.P. 26(c)(1). Rule 26(c) of the Federal Rules of Civil Procedure provides, in pertinent part: "The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed.R.Civ.P. 26(c)(1). The movant bears the burden of demonstrating good cause for the issuance of the protective order. See Brown v. Astoria Fed. Sav. & Loan Ass'n, 444 F.App'x 504, 505 (2d Cir. 2011). "To establish good cause under Rule 26(c), the party must set forth a 'particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.'" Bernstein v. Mafcote, Inc., 43 F.Supp. 3d 109, 113 (D. Conn. 2014) (citing Jerolimo v. Physicians for Women, P.C, 238 F.R.D. 354, 356 (D. Conn. 2006)).

         C. Discussion

         Defendants' motions seek an order protecting them from being required to respond to the Requests to Produce at Deposition set forth in the April 19, 2016, notices of deposition.[1] Each moving defendant asserts the same arguments in support of granting a protective order, specifically, that (1) the notices are an attempt to circumvent the Scheduling Order and (2) the notices fail to provide the requisite 30 days pursuant to Rule 34 in which to respond to document requests. Plaintiff's response, which notably does not rely on any binding authority, claims that the notices of deposition were made pursuant to Rule 30(b)(2), and therefore, "whether the plaintiff can attach a Rule 34 request for documents to a Rule 30(b)(2) party deposition notice after the deadline for written discovery had passed depends on the nature and volume of the documents or things sought by the deposition notice." [Doc. #41 at 3l; Doc. #43 at 3]. Plaintiff continues: "If the documents sought are few and simple and closely related to the oral examination sought the document request falls under Rule 30(b)(2)." Id. at 3-4 (citing Carter v. United States, 164 F.R.D. 131, 133 (D. Mass. 1995)).

         Plaintiff's argument is misplaced and unpersuasive. The original notices provided less than ten days in which to produce a corporate witness for the deposition.[2] "That is simply not enough notice[.]" Lagnese v. Town of Waterbury, No. 15CV00975(AWT), 2015 WL 7432318, at *2 (D. Conn. Nov. 23, 2015) (deposition notices issued one to six calendar days before scheduled deposition did not provide enough notice), adhered to on reconsideration sub nom. Lagnese v. City ofWaterbury, No. 15CV00975(AWT), 2015 WL 9255540 (Dec. 18, 2015). This is particularly true of providing notice to corporations, such as the defendants here, ...


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