United States District Court, D. Connecticut
JEFFREY N. GILBERT
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,
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
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].
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.
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
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.
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.
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.
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. 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)).
argument is misplaced and unpersuasive. The original notices
provided less than ten days in which to produce a corporate
witness for the deposition. "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