United States District Court, D. Connecticut
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 ...