Solis v. Target Corporation

Filing 76

ORDER signed by Magistrate Judge Allison Claire on 5/4/16 ORDERING that Defendant's 4/27/16 MOTION for a protective order (ECF No. 73 ) is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAVIER SOLIS,

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No. 2:14-cv-0686 KJM AC PS (TEMP)
Plaintiff,

v.

ORDER

TARGET CORPORATION,
Defendant.

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On April 27, 2016, defendant filed a motion for a protective order. ECF No. 73. That

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same day the parties filed a joint statement re discovery dispute. ECF No. 74. On May 3, 2016,

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the undersigned took defendant’s motion under submission. ECF No. 75

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In their joint statement re discovery dispute, counsel for defendant asserts that:
Plaintiff’s counsel agreed to sequence plaintiff’s deposition first,
followed by Target’s witness. Target has tried since July 2015 to
depose Plaintiff’s deposition [sic]. Due to Plaintiff’s scheduling
issues, the earliest date she was available for plaintiff’s deposition
was April. Based on the parties’ Feb 3 agreement, the earliest date
Mark Baker could have been presented for a deposition would have
been a day after April 12.
Plaintiff’s counsel cancelled plaintiff’s deposition set for April 12
and expected Target to drop everything to squeeze Plaintiff’s
deposition in before Mark Baker’s deposition on April 29. When
Target was unable to do so, Plaintiff’s counsel tried to back out on
her word regarding the sequence of depositions, and insists that
Mark Baker has to be deposed on April 29.
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ECF No. 74 at 11.1

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However, Federal Rule of Civil Procedure 26(d)(3) provides that “[u]nless the parties

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stipulate or the court orders otherwise . . . discovery by one party does not require any other party

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to delay its discovery.” In this regard, as defendant acknowledges, “there is no rule of deposition

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priority in federal court . . . .” ECF No. 74 at 11; see also Brady v. Grendene USA, Inc., No.

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12cv604-GPC (KSC), 2014 WL 4925578, at *4 (S.D. Cal. Sept. 26, 2014) (“As there is no rule of

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‘deposition priority,’ this Court finds that the depositions noticed by the defendants should

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proceed first.”); Keller v. Edwards, 206 F.R.D. 412, 416 (D. Md. 2002) (“This is not to say that

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there is anything wrong with good counsel attempting to take discovery in a sequence that affords

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them a tactical advantage.”).

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“A motion for an order fixing the sequence or timing of discovery under Rule 26(d) is

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appropriate, however, when a certain sequence or timing of discovery is necessary for the

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convenience of the parties and witnesses and is in the interest of justice.” Stein v. Tri-City

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Healthcare Dist., Civil No. 12-CV-2524-BTM (BGS), 2014 WL 458021, at *2 (S.D. Cal. Feb. 4,

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2014). Good cause is required to obtain an order fixing the sequence of depositions. See id. at *1

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(“Courts do not routinely grant protective orders altering the sequence of depositions. ‘Good

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cause’ is required—i.e., a specific reason why one party’s deposition should be taken before other

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depositions are allowed.”).

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Here, counsel for defendant argues that “good cause” exists for “[a]n order setting the

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deposition scheduling consistent with the parties’ agreement” because such an order will “ensure

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that Plaintiff’s deposition goes forward once and for all.” ECF No. 74 at 11. However, that

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defendant would like to ensure plaintiff is deposed does not establish good cause to order the

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sequencing of depositions. Defendant has been, and remains, free to properly notice plaintiff’s

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deposition and to move for a motion to compel and/or for sanctions in the event plaintiff fails to

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appear for a properly noticed deposition.

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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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Counsel for defendant also argues that an order sequencing the deposition would be more

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convenient to Mark Baker because it would allow his “deposition [be] moved out a few weeks.”

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Id. at 12. Defendant, however, fails to articulate why it is necessary to order the sequence of

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depositions to address the convenience of the date set for Mark Baker’s deposition. Moreover,

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the court is confident the parties can resolve this issue and, if not, a party may bring a motion to

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compel or motion for a protective order related solely to the scheduling of Mark Baker’s

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deposition. A court order sequencing depositions is not necessary.

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Counsel for defendant also asserts that “[o]n April 15, 2016, plaintiff’s counsel waited for

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Mark Baker at his home to personally serve him with a subpoena to appear for a deposition on

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April 29, 2016.” Id. at 2. Plaintiff’s counsel allegedly did this, “despite knowing that Seyfarth

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Shaw was authorized to accept service on his behalf and was coordinating the scheduling of his

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deposition.” Id. Moreover, “[d]efense counsel is representing Mark Baker in the scope of this

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litigation.” Id. at 10.

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Mark Baker, however, is defendant’s former employee and is not a party to this action.

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Indeed, defendant states in the joint statement that “[a]s Target no longer employs Mark Baker,

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Target cannot control his schedule.” Id. at 4. While counsel for defendant may have been willing

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to accept service for Mark Baker, it is also true that counsel for defendant had informed plaintiff’s

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counsel that “Target would not present any witnesses” until plaintiff had been deposed. Id. at 5.

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In this regard, that the parties could not agree on a date for the non-party deposition of

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Mark Baker and, accordingly, plaintiff served Mark Baker with a subpoena as required by Rule

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30. Under the circumstances, it does not appear that the conduct of plaintiff’s counsel was

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inappropriate or unreasonable.

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CONCLUSION
Accordingly, upon consideration of the arguments on file, and for the reasons set forth

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above, IT IS HEREBY ORDERED that defendant’s April 27, 2016 motion for a protective order

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(ECF No. 73) is denied.

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DATED: May 4, 2016

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