Adan v. Insight Investigations, Inc. et al

Filing 28

ORDER on Joint Oral Motion for Determination of Discovery Dispute. Defendants motion for a protective order regarding Donna Cotter is denied; Defendants motion for a protective order regarding Vanessa Coates is granted; The July 7, 2017 fact discovery deadline remains in effect. Signed by Magistrate Judge William V. Gallo on 6/28/17.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AHMED S. ADAN, an individual,

Case No.: 16-CV-2807-GPC-WVG

Plaintiff,

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ORDER ON JOINT MOTION FOR
DETERMINATION OF DISCOVERY
DISPUTE

v.
INSIGHT INVESTIGATIONS, INC., a
California Corporation; and DOES 1-10
inclusive,

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Defendant.

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The parties in the above captioned matter have jointly moved the Court for a

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determination of a discovery dispute. Specifically, the parties’ dispute surrounds the

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depositions of Donna Cotter and Vanessa Cotes.

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I. WITNESS DONNA COTTER

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Defendant seeks a protective order to limit the questioning by Plaintiff’s counsel of

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Donna Cotter. Defendant argues Plaintiff is seeking to depose Cotter as if she is a person

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most knowledgeable (“PMK”) witness and, although not designated as such, Defendant

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anticipates Plaintiff’s questioning may exceed the bounds of relevancy given that Cotter is

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only a percipient witness having taken only a single phone call from Plaintiff and sent one

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email to him. Plaintiff argues he should not be limited in deposition testimony but rather

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should be allowed to ask any and all questions that are within the bounds of the Federal
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Rules of Civil Procedure (“Rules”) and relevancy.

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The Rules authorize the Court, upon a showing of good cause, to issue a protective

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order to protect a party or person from annoyance, embarrassment, oppression, or undue

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burden or expense. Fed. R. Civ. P. 26(c)(1). The party seeking a protective order bears the

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burden of establishing good cause. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir.

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2004). Good cause is established where it is specifically demonstrated that disclosure will

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cause a specific prejudice or harm. Id. at 1063-64 (internal quotation and citation omitted).

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Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning,

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do not satisfy the Rule 26(c) test. Id. Any protective order that issues must be narrowly

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tailored. In re Bofl Holding, Inc. Securities Litigation, 318 F.R.D. 129, 133 (S.D. Cal.

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2016.)

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Defendant has not demonstrated any specific prejudice or harm but rather has made

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broad allegations of potential harm. Given this, Defendant has not satisfied the Rule 26(c)

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test. Accordingly, Defendant’s motion for a protective order is DENIED. Since Cotter is a

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percipient witness, she may be questioned as such. Of course, Cotter may be examined

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about whether she followed company policy and procedure in taking the call and sending

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the email, but she is not a PMK and efforts by Plaintiff to expand her testimony into areas

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rightfully in the realm of a PMK are prohibited. The Court further admonishes the parties

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to follow the Federal Rules of Civil Procedure regarding the relevance and time restrictions

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of depositions.

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II. WITNESS VANESSA COATES

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Defendant seeks a protective order to bar the deposing of Vanesa Coates. Defendant

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argues Coates deposition is irrelevant and unduly burdensome. Defendant stated during the

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status conference that under no uncertain terms did Coats have any involvement in the

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auditing process during the time period relevant to the case. Further, Defendant claims that

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Plaintiff could have acquired the same discovery through other means of discovery such as

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written interrogatories or asking more specific questions of the PMK during his or her

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deposition (but did not). Defendant claims these other forms of discovery are far less
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burdensome and would reveal the same information sought by Plaintiff.

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Plaintiff seeks to depose Coates because Plaintiff believes she has knowledge of

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Defendant’s operating procedures, specifically auditing. Plaintiff claims that although at

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least one other witness has testified that Coates was not an auditor for the time frame in

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question, Plaintiff has a right to ask Coates herself when she started that position.

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The Federal Rules of Civil Procedure authorize the Court, upon a showing of good

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cause, to issue a protective order to protect a party or person from annoyance,

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embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). The party

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seeking a protective order bears the burden of establishing good cause. Rivera, 364 F.3d

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at1063. In assessing the motion, “the court should balance the costs and burdens to each

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side.” U.S. v. $160,066.98 from Bank of Am., 202 F.R.D. 624, 626 (S.D. Cal. 2001).

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On balance, Defendant has shown there is a far less burdensome discovery method

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by which Plaintiff can acquire the information sought. Accordingly, the Court GRANTS

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Defendants motion for protective order barring the deposition of Coates.

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III. CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED:

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(1) Defendants motion for a protective order regarding Donna Cotter is DENIED;

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(2) Defendants motion for a protective order regarding Vanessa Coates is

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GRANTED;

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(3) Plaintiff may propound interrogatories regarding Vanessa Coates on Defendant,

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allowing time for Defendant to respond prior to the fact discovery deadline;

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(4) Defendant shall respond to any interrogatories regarding Vanessa Coates within

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two (2) business days of service; and

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(3) The July 7, 2017 fact discovery deadline remains in effect.

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IT IS SO ORDERED.

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Dated: June 28, 2017

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