Gipson v. Hyundai Power Transformers, USA, Inc.

Filing 68

ORDER that Defendants' 64 Motion to Compel Completion of Deposition of Ashlee Smith is DENIED as further set out in the order. Signed by Honorable Judge Gray M. Borden on 7/26/2018. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIAM GIPSON,
Plaintiff,
v.
HYUNDAI POWER TRANSFORMERS
USA, INC., et al.,
Defendants.

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CASE NO. 2:17cv498-MHT-GMB
[WO]

ORDER
Under consideration is Defendants’ Motion to Compel Completion of Deposition
of Ashlee Smith. Doc. 64.

Having reviewed the motion and Smith’s opposition to it

(Doc. 66), along with Plaintiff William Gipson’s response (Doc. 67), it is ORDERED, for
the reasons stated below, that the motion is DENIED.
On May 2, 2018, Gipson first served on Defendants’ counsel a notice of deposition
for Smith, who is an employee of Hyundai Power Transformers USA, Inc. (“HPT”). Doc.
46 at 15–17. On May 8, Gipson followed up with a second deposition notice setting
Smith’s deposition for May 10. Doc. 46 at 20–22. The two notices included identical
document requests. For reasons known only to HPT and its attorneys, Smith was not told
that she would be deposed until the morning of May 10. Doc. 66-1 at 3. When provided
with the notice, Smith began to gather the documents in her possession that were
responsive to the requests. Doc. 66-1 at 4. After an argument with her coworkers over
whether she should bring these documents to her deposition, Smith placed the documents

in a lock box in her office and left for her deposition. Doc. 66-1 at 4–5 & 17.
Smith’s deposition commenced on May 10, 2018 at approximately 1:32 p.m. and
continued until 4:52 p.m. with both Gipson’s counsel and Defendants’ counsel asking
questions of Smith. Doc. 66-1. The deposition was purportedly suspended by agreement
of the parties with the intention of resuming Smith’s questioning after Defendants
produced the documents responsive to the requests embedded in her deposition notice.
Gipson confirms that Defendants did, in fact, produce responsive documents on May 11,
but contends that defense counsel is withholding additional responsive documents. Doc. 57
at 5–6. When Smith arrived at work on May 11, HPT suspended her without pay. Smith
later filed a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) relating to her suspension. Doc. 66-2.
Defendants now seek to compel Smith to sit for a second deposition, and Gipson
joins in the request “as soon as he receives the documents responsive to his discovery
responses for [Smith’s] deposition notice.” Doc. 67 at 6. But the parties’ agreement that
Smith must be re-deposed ignores the procedural protections of the Federal Rules of Civil
Procedure.
Gipson contends that he properly suspended Smith’s deposition pursuant to Federal
Rules of Civil Procedure 30(d)(1) and (d)(3). Doc. 67 at 6. He did not. Rule 30(c)(1)
mandates that “the examination and cross-examination of a deponent proceed as they
would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” As a
result, Rule 30 allows for a deposition to be suspended only to provide the deponent or a

party the opportunity to file a motion “to terminate or to limit [the deposition] on the
ground that it is being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A). Even when
suspended on this basis, the suspension may only last “for the time necessary to obtain an
order.” Fed. R. Civ. P. 30(d)(3)(A). No party has properly invoked this procedure by
filing a motion to terminate or limit Smith’s deposition.
Instead, the parties agreed—without Smith’s input—to “suspend” Smith’s
deposition because Defendants had not yet produced to the documents requested in her
deposition notice. The blame for this failure lies with the parties, not with Smith. Under
Rule 30(b)(2), a deposition notice may only include document requests if either (1) a
subpoena duces tecum will be served on the deponent, or (2) the requests are in a form
consistent with Rule 34 and the subject is a party deponent. Gipson noticed Smith’s
deposition instead of serving her with a subpoena and thus travels under the second
provision in Rule 30(b)(2). But Gipson served the requests far too late to allow adequate
time for Defendants to respond or lodge objections to the requests prior to Smith’s
deposition. See Fed. R. Civ. P. 34(b)(2)(A) (allowing 30 days to respond to requests for
production to a party).1 On the other side of the equation, according to Smith’s deposition
testimony Defendants ignored the document requests entirely, or at least they developed no
more comprehensive of a plan for gathering the responsive documents than to hand the list
to Smith on the day of her deposition and let her fend for herself.

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Even if Gipson had issued a valid subpoena duces tecum on May 2, this would not have provided
sufficient time to respond to the document requests under Rule 45(d)(2)(B).

All of this makes clear to the court that the parties created the problem they now
want to slough off on Smith. The parties had an obligation to resolve their dispute over
the document production prior to Smith’s deposition, not midstream.

Because the

purported suspension of Smith’s deposition was improper, her re-deposition would violate
the one-day limitation of Federal Rule of Civil Procedure 30(b)(1), as Defendants
acknowledged when it was Gipson who wanted to re-depose Smith. See Doc. 57 at 3.
Thus, the parties may only re-depose Smith with leave of court under Rule 30(a)(2)(A)(ii).
Although no party formally has requested leave of court, to the extent this request is
implicit in either Gipson’s or Defendants’ briefs it is due to be denied as both
disproportionate to the needs of the case and inconsistent with Rule 26(b)(2)(C). Federal
Rule of Civil Procedure 26 defines the scope of discovery to include
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.
Fed. R. Civ. P. 26(b)(1). Here, the record before the court establishes that the information
sought from Smith is relevant, but that the burden and expense of obtaining Smith’s
supplemental testimony outweighs its likely benefit. Defendants articulate that they need
Smith’s second deposition to probe her testimony “that she maintained documents related
to production employees’ attendance and that she believes HPT discriminates against
African American employees in administering attendance points and discipline for
attendance.” Doc. 64 at 4. But this subject was covered during her first deposition. See,

e.g., Doc. 66-1 at 50–51. The court finds that any incremental benefit from a second
deposition on this subject would be minimal and would be outweighed by the burden and
expense of requiring Smith to sit for a second deposition. This is particularly true now
that Smith is engaged in an intertwined EEOC claim.
Moreover, Rule 26(b)(2)(C) compels the court to “limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines that . . . (ii) the
party seeking discovery has had ample opportunity to obtain the information by discovery
in this action.” This is such a case. Knowing that Defendants had not produced the
documents requested in Smith’s deposition notice, the parties proceeded with her
deposition on May 10. In charging ahead then, they assumed the risk that they might be
squandering their opportunity to ask Smith about these documents. The parties have not
convinced the court that they should be allowed to take another swing at Smith under these
circumstances.
DONE on the 26th day of July, 2018.