Jones v. Payssa et al

Filing 62

MEMORANDUM AND OPINION re 61 ENDORSED ORDER granting 60 Second MOTION for Protective Order. Defendant Ferroglobe must file and serve a motion for such an award, containing any evidence and argument Ferroglobe necessary to show both the amount and reasonableness of the expenses requested, and entitlement thereto on or before 3/13/2019 as set out. Signed by Magistrate Judge Katherine P. Nelson on 02/27/2019. (srd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
VIVIAN M. JONES,
Plaintiff,

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v.
LEE PAYSSA, et al.,
Defendants.

CIVIL ACTION NO. 2:18-00262-TFM-N

MEMORANDUM OPINION & ORDER
On February 26, 2019, the Court endorsed granted the second motion for a
protective order under Federal Rule of Civil Procedure 26(c) (Doc. 60) filed by Globe
Specialty Metal, Inc. a/k/a Ferroglobe/Globe Metallurgic, Inc. and Ferroglobe
Metallurgic, Inc. (collectively, “Ferroglobe”), with a notation that a written decision was
to follow as soon as was practicable. (See Doc. 61).1 The Court will herein explain its
reasoning in granting the motion.2
Under Federal Rule of Civil Procedure 30(b)(1), the Plaintiff noticed the deposition
of Stephen Smith for February 27, 2019, beginning either at 1:00 p.m. or immediately
after another deposition concluded. (See Doc. 60-1).

Said notice also requested that

Smith produce at the deposition copies of the personnel files of certain employees and
former employees of Ferroglobe.

Ferroglobe objects to the document production

1 The

assigned District Judge referred the motion to the undersigned Magistrate Judge
for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72,
and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (2/26/2019 electronic reference).
The Court denied Ferroglobe’s prior motion for a protective order without prejudice
due to its failure to include a good-faith conferencing certification required by Rule
26(c)(1) and the Court’s scheduling order. (See Docs. 57, 59). Ferroglobe’s present
motion contains a sufficient good-faith conferencing certification in paragraph 1.
2

request, as well as any attempt by the Plaintiff to treat Smith as Ferroglobe’s Rule
30(b)(6) representative.
Under Federal Rule of Civil Procedure 30(b)(6), “[i]n [a deposition] notice or
subpoena, a party may name as the deponent a public or private corporation, a
partnership, an association, a governmental agency, or other entity and must describe
with reasonable particularity the matters for examination. The named organization
must then designate one or more officers, directors, or managing agents, or designate
other persons who consent to testify on its behalf; and it may set out the matters on
which each person designated will testify.”

Fed. R. Civ. P. 30(b)(6).

Ferroglobe

represents that the Plaintiff “has not served a 30(b)(6) deposition notice” (Doc. 60), and
nothing in the record contradicts that statement. While the Plaintiff claims that Rule
30(b)(6) “is not our situation” and that “[t]here is no need to designate a company
representative” (Doc. 58 at 2 – 3), the notice of deposition expressly references Rule
30(b)(6) in its opening paragraph and demands that Smith produce documents that
belong to Ferroglobe. Under the plain terms of Rule 30(b)(6), the ability to designate its
testifying representatives rests with Ferroglobe, not with the Plaintiff. Thus, to the
extent the Plaintiff’s notice attempted to make the designation for Ferroglobe, the
Plaintiff’s action was improper, and Smith is not to be treated as a Rule 30(b)(6)
representative for Ferroglobe at the scheduled deposition.
Under Federal Rule of Civil Procedure 30(b)(2), a “notice to a party deponent may
be accompanied by a request under Rule 34 to produce documents and tangible things
at the deposition.”3 Under both Rule 34 and the Court’s scheduling order (Doc. 32, as

3

Smith was named as a defendant in this action but was later dismissed under Federal

modified by Doc. 44), a party that is served with a Rule 34 request for production is
allowed 30 days after service to respond. 4

The deposition notice for Smith is

postmarked as mailed February 19, 2019. (See Doc. 60-1 at 3). Therefore, requiring
Smith to produce documents at the deposition noticed for February 27 does not give
Smith the full time to which he is entitled to respond to the Plaintiff’s request for
production in the deposition notice.5 Accordingly, Smith is not required to produce any
of the documents requested in the deposition notice at the February 27 deposition.6
For the foregoing reasons, the Court granted Ferroglobe’s second motion for a
protective order (Doc. 60). (See Doc. 61). Because the motion was granted, “the court
must, after giving an opportunity to be heard, require the party or deponent whose
Rule of Civil Procedure 12(b)(6). (See Doc. 24). Nevertheless, Ferroglobe’s motion
continues to treat Smith as a “party deponent” (see Doc. 60 at 5). The undersigned
assumes, without deciding, that this position is correct for purposes of the present
motion. Even if Smith should be considered a non-party deponent, the result on the
present motion would not change. Under Rule 30(b)(2), a subpoena duces tecum is
required to compel non-party deponents to produce documents at a deposition. No such
subpoena was issued against Smith.
While a “shorter…time may be stipulated to under Rule 29 or be ordered by the
court[,]” Fed. R. Civ. P. 34(b)(2)(A), neither of these has occurred.
4

Moreover, the request for production included in the deposition notice appears
duplicative of a request of production served on Ferroglobe on February 15, 2019. (See
Doc. 60-4). The time for Ferroglobe to respond to that request will also not have run by
the time of Smith’s deposition.
5

Ferroglobe also claims that Smith “has no ownership interests in the personnel files
requested and has no authority to produce the documents sought.” (Doc. 60 at 6).
However, the Plaintiff asserts that Smith “is the plant manager of the Plant of Globe
Facility in Dallas County[, and a]s such plant manager, all matters are under his
supervision and he can provide said files at the deposition.” (Doc. 58 at 2). Under Rule
34, a request for production may be made on a party for items in that party’s
“possession, custody, or control…” Fed. R. Civ. P. 34(a)(1). Because this issue is
underdeveloped in the briefing, and because it is unnecessary to decide it in ruling on
the present motion for protective order, the undersigned expresses no opinion herein on
this issue.
6

conduct necessitated the motion, the party or attorney advising that conduct, or both to
pay the movant’s reasonable expenses incurred in making the motion, including
attorney’s fees[,]” unless the Court finds “(i) the movant filed the motion before
attempting in good faith to obtain the disclosure or discovery without court action; (ii)
the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.”

Fed. R. Civ. P.

37(a)(5)(A). See also Fed. R. Civ. P. 26(c)(3) (“Rule 37(a)(5) applies to the award of
expenses” for motions for protective orders). Upon consideration, Ferroglobe must file
and serve a motion for such an award, containing any evidence and argument
Ferroglobe deems necessary to show both the amount and reasonableness of the
expenses requested, and entitlement thereto, no later than Wednesday, March 13,
2019. Ferroglobe’s failure to timely file such a motion will be deemed a waiver any
entitlement to an award under Rule 37(a)(5) in connection with the present matter. If
such a motion is timely filed, the Court will set a briefing schedule in due course to give
the Plaintiff and/or her counsel an opportunity to be heard on the motion.
DONE and ORDERED this the 27th day of February 2019.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE