Othon v. Wesleyan University

          ORDER RE: MOTION FOR PROTECTIVE ORDER

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

         On May 30, 2019, plaintiff Christine Othon filed a Motion for Protective Order and Costs. [Doc. #110] Plaintiff seeks to postpone her deposition, which has been noticed for June 6, 2019, to a later date. Plaintiff argues that the deposition should be delayed because: (1) defendant has not fully complied with the Initial Discovery Protocols, see Doc. #110 at 1; (2) plaintiff is not available on June 6, 2019, see Doc. #110-1 at 7; (3) plaintiff has not made travel arrangements to appear for her deposition, see Doc. #110-1 at 9-10; (4) defendant may engage in “deposition by ambush, ” Doc. #110-1 at 10-11; and (5) defendant has not filed an Answer to the Amended Complaint, see Doc. #110-1 at 13-14. Defendant has filed an opposition to the motion, see Doc. #113, and plaintiff has filed a reply, see Doc. #114. The Court conducted a telephonic hearing on the instant motion on June 3, 2019, at which counsel for each party appeared. For the reasons set forth herein, the Court DENIES plaintiff's Motion for Protective Order.

         I. BACKGROUND

         The Court will not recount the full procedural background of this matter here, but will focus only on those matters directly relevant to its decision. The discovery process in this case has been unusually (and, it seems to the undersigned, unnecessarily) contentious. There are currently four motions to compel pending, all of which have been referred to the undersigned. See Doc. #80. The Court issued an order discussing some of the matters raised in those motions on for June 3, 2019. See Doc. #118.

         This case was filed on June 7, 2018. See Doc. #1. The 26(f) Report was filed on August 30, 2018. See Doc. #14. In that report, the parties requested a deadline of April 30, 2019, for the completion of all discovery, including depositions of fact witnesses. See Id. at 4. The discovery deadline was later reset to July 14, 2019, see Doc. #37, and then again to August 14, 2019, see Doc. #45, and yet again to September 29, 2019, see Doc. #77. The parties then filed a fourth motion to modify the scheduling order and further delay the completion of discovery pending resolution of at least one issue raised in the pending motions to compel. See Doc. #96. The Court granted that motion. See Doc. #99.

         Defendant originally noticed the deposition of the plaintiff for February 14, 2019. See Doc. #113-2 at 4. The parties agreed to reschedule the deposition to a later date, and defense counsel proposed June 4 or June 6, 2019. See Doc. #113-4 at 3. On April 2, 2019, plaintiff's counsel stated in an email: “My client and I are holding June 6.” Doc. #113-4 at 2. Defendant then noticed plaintiff's deposition for June 6, 2019. See Doc. 113-1 at 3.

         On April 17, 2019, plaintiff's counsel sent an email to defense counsel stating: “Plaintiff is not available on June 6.” Doc. #110-1 at 7. Counsel then exchanged emails in which defense counsel stated that they intended to go forward with the deposition on June 6, 2019, as scheduled, and plaintiff's counsel declined to provide detailed information regarding her client's unavailability on that date. See Doc. #110-3. It does not appear that counsel engaged in any further discussions regarding the deposition date. Notably, the documents provided to the Court reflect only email discussions of this issue; there is no indication that counsel ever discussed the matter of the June 6, 2019, date by telephone or in person.

         In the course of reviewing the motions to compel, the undersigned noted that the defendant had made repeated passing references to an ongoing dispute related to plaintiff's deposition. However, no motion addressed to the deposition had been filed. Therefore, in an effort to ensure that all parties understood that the issue of the deposition was not before the Court, the Court entered the following Order on May 9, 2019:

ORDER. Defendant, in multiple filings, has expressed concern regarding plaintiff's attendance at a deposition scheduled for June 6, 2019, at 10:00AM. See Doc. #78 at 1 (“Plaintiff's counsel's recent email communication, attached as Exhibit A, shows an outright refusal by Plaintiff to sit for her deposition, despite previous agreement to do so and a pending deposition notice. Therefore, as part of the relief on its Motion to Compel, Defendant requests an order that Plaintiff appear for her deposition on June 6, 2019, as noticed.”); Doc. #78-2 at 2 (“Re-Notice of Deposition” stating: “Defendant will take the deposition of CHRISTINA OTHON” “on June 6, 2019 at 10:00 a.m.”); Doc. #88 at 1 n.1 (“Although a response to Plaintiff's Motion for Reconsideration is not required by Local Rule 7(c) unless requested by the Court, Wesleyan submits this brief opposition in order to address Plaintiff's continued refusal to sit for her deposition, which has been noticed for June 6, 2019. In its Reply in further support of its Motion to Compel [ECF No. 78], Defendant has explicitly asked for the Court to compel Plaintiff to attend her deposition on June 6, 2019.”); Doc. #93 at 1 (“Defendant's consent [to an extension of a deadline] does not change its position that Plaintiff's deposition should proceed on June 6, 2019.”).

Neither a motion to compel, nor a motion for a protective order, specifically addressed to plaintiff's deposition has been filed or granted in this case. Accordingly, the Court presumes that any duly noticed deposition will go forward in the ordinary course of business. It is so ordered.

Doc. #95 (emphasis in original).

         On May 30, 2019, plaintiff filed the instant motion for protective order. On that same date, upon review of plaintiff's submission, the Court issued the following Order:

ORDER. On May 9, 2019, exactly three weeks ago, this Court entered an order expressly advising all counsel that the Court expected the plaintiff's deposition to go forward on June 6, 2019, as scheduled unless a motion for protective order was filed and granted. See Doc. #95. In spite of that order, plaintiff's counsel now represents that plaintiff has no plans to attend the deposition and has not made travel arrangements. See Doc. # 110-1 at 8. The deposition at issue was noticed on April 2, 2019. The correspondence regarding that date provided by plaintiff's counsel with the motion for protective order appears to have been exchanged in mid-April. There is no indication in plaintiff's motion that counsel has made any effort to address this issue since the Court's May 9, 2019, order. Accordingly, plaintiff is hereby ordered to file a supplemental memorandum in support of the motion for protective order indicating (1) whether counsel has attempted to address this issue with defense counsel since May 9, 2019, and (2) whether counsel instructed plaintiff that plaintiff need not appear for the deposition, prior to the filing of the motion for protective order. Such supplemental memorandum shall be filed before 12:00 p.m. on May 31, 2019. It is so ordered.

Doc. #112 (emphasis in original). Plaintiff filed a response addressing the Court's first inquiry, stating that counsel

did not attempt to address the issue with defense counsel after the May 9, 2019 Order because 1) Plaintiff's prior efforts to reschedule the deposition date were rejected by Defense counsel (See Memorandum of Law supporting Motion for Protective Order and discussions of April communications and Exhibit B); 2) Plaintiff's counsel understood from the Court's May 9 Order that she had to file a Motion for Protective Order in order to address the June 6 deposition date (See May 9 Order); and 3) the Court's May 9 Order was based on incomplete and inaccurate representations from the Defendant in submissions related to written discovery and not plaintiff's deposition.

Doc. #115 at 1. Plaintiff did not respond to the Court's second inquiry regarding counsel's instructions to plaintiff. The Court conducted a hearing on June 3, 2019. At that time, the Court again inquired of plaintiff's counsel what instructions she had provided to her client. Plaintiff's counsel advised the Court, in substance, that counsel had advised plaintiff that the issue of rescheduling would need to be addressed by the Court. Counsel further explained that she advised plaintiff that she, counsel, would tell plaintiff when she needed to secure plane tickets for the purpose of attending her deposition, and had not yet told plaintiff to do so.

         II. LEGAL STANDARD

         Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and ...