Stransky et al v. HealthONE of Denver, LLC et al

Filing 88

ORDER Granting in part and Denying in part 81 Defendant's Motion for Protective Order Regarding Plaintiffs' Request to Conduct the F.R.C.P [SIC] 30 (B)(6) Deposition of Defendant Healthone of Denver, Inc., and Order Modifying Rule 16 Sc heduling Order; That the dispositive motion deadline of December 21, 2012, is VACATED; That the Final Pretrial Conference on February 12, 2013, at 9:00 a.m. is VACATED; That a Status Conference is set before Magistrate Judge Watanabe on March 21, 201 3, at 9:30 a.m. At the Status Conference, the parties shall be prepared to give this court an update on the status of any opt-in plaintiffs and the court will discuss setting another Rule 16 Scheduling Conference for additional discovery for any op-t in plaintiffs. Counsel shall bring their calendars to this Status Conference; and That each party shall pay their own attorney fees and costs for the subject motion docket no. 81 since this court finds to award expenses under these circumstances would be unjust. Status Conference set for 3/21/2013 09:30 AM before Magistrate Judge Michael J. Watanabe, by Magistrate Judge Michael J. Watanabe on 1/11/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02888-WJM-MJW
LISA STRANSKY,
NATALIE FIORE,
ERIN PEREZ,
HELEN GEIST,
ANGIE VANLENGEN,
BROOKE THOMPSON,
MILDRED HAMILTON and
NICOLE WAGNER,
individually and on behalf of others similarly situated,
Plaintiff(s),
v.
HEALTHONE OF DENVER, INC.,
Defendant(s).

ORDER ON
DEFENDANT’S MOTION FOR PROTECTIVE ORDER REGARDING PLAINTIFFS’
REQUEST TO CONDUCT THE F.R.C.P [SIC] 30(B)(6) DEPOSITION OF
DEFENDANT HEALTHONE OF DENVER, INC. (DOCKET NO. 81)
AND
ORDER MODIFYING RULE 16 SCHEDULING ORDER

Entered by Magistrate Judge Michael J. Watanabe
This matter was before the court on January 7, 2013, for hearing on Defendant’s
Motion for Protective Order (docket no. 81). The court has reviewed the subject motion
(docket no. 81) and the response (docket no. 84). In addition, the court has taken
judicial notice of the court’s file and has considered applicable Federal Rules of Civil
Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and order

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FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines
the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).

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Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain
discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil
Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);
5.

That on December 14, 2012, Judge Martinez entered his Amended
Order which GRANTED IN PART, Plaintiffs’ Motion for Collective
Action Certification and for Judicial Notice to Class (docket no. 35),
and a conditional collective action was certified consistent with the
Amended Order (docket no. 74);

6.

That as of the date of this Order, the class notification has not been
sent out, and the parties are not in agreement regarding the
language that should be included in the class notification;

7.

That the current Rule 16 Scheduling Order (docket no. 26) was
entered by Magistrate Judge Watanabe on March 2, 2012, well
before Judge Martinez entered his Amended Order (docket no. 74).

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The Amended Order (docket no. 74) was entered on December 14,
2012. On December 14, 2012, I granted Plaintiff’s Motion to
Extend Discovery (docket no. 61) until December 31, 2012, to
conduct and complete the Rule 30(b)(6) depositions and the
deposition of Shawn Palmer. See docket no. 77;
8.

That the current Rule 16 Scheduling Order (docket no. 26)
addressed only discovery between the named Plaintiffs and
Defendant but did not include discovery concerning any opt in
Plaintiffs;

9.

That Defendant argues that Plaintiff’s Rule 30(b)(6) Notice (docket
no. 81-1) is overly broad, unduly burdensome, vague, and seeks
irrelevant and duplicative discovery. Accordingly, Defendant seeks
a protective order consistent with Fed. R. Civ. P. 26(c) and further
seeks an award of expenses pursuant to Fed. R. Civ. P. 37(a)(5);

10.

That there are 40 separate topics listed by Plaintiffs in the Rule
30(b)(6) Notice (docket no. 81-1). Many of the topics relate to the
Kronos system’s automatic meal break deduction feature which
Defendant argues is irrelevant to this case. See topic nos. 18-24,
27, 29, and 31). Moreover, Defendant argues that some of the
topics seek information that is protected by the attorney-client
privilege, the work product doctrine, or by other applicable
privileges under Fed. R. Evid. 501. In particular, Defendant argues
that topic no. 40, which states: “All efforts made by HeathONE to

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fully and accurately respond to Plaintiffs’ written discovery requests
and requests for production,” is protected by the attorney-client and
work product privilege;
11.

That Plaintiffs argue that Defendant, as the moving party, has not
shown extraordinary circumstances that present a particular and
compelling need for a protective order, citing Ball Corp. v. Xidex
Corp., 705 F. Supp. 1470, 1473 (D. Colo. 1988) (noting the “heavy
burden” placed on party requesting order that discovery deposition
not proceed). In addition, Plaintiffs argue that a corporation [i.e.,
Defendant HealthONE of Denver, Inc.] has an affirmative duty to
provide a witness who is able to provide binding answers on behalf
of the corporation. Ecclesiastes 9:10–11-12, Inc., v. LMC Holding
Co., 497 F.3d 1135, 1147 (10th Cir. 2007). Further, plaintiffs argue
that a witness may be compelled to bring documents to a
deposition by the notice of deposition of a party including a
description of the documents. See Lee v. U.S. Dept. of Justice,
287 F. Supp.2d 15, 22 (D.D.C. 2003), aff’d, 413 F.3d 53 (D.C. Cir.
2005);

12.

That during this hearing on the subject motion (docket no. 81), it
was agreed to by the parties that 35,000 pages of written discovery
have been provided to Plaintiffs by Defendant. These records were
from the five Defendant facilities in question in this case. Further,
the parties agreed that each of the five Defendant facilities [i.e.,

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hospitals] are run separately but have an overall corporate structure
overseeing each of these facilities. In other words, each of the five
Defendant facilities has its own separate hospital business
structure. Each facility has its own facility [hospital] manger, own
HR department, etc.;
13.

That as to topics 1 through 8, inclusive, in the Plaintiffs’ Rule
30(b)(6) Notice (docket no. 81-1), I find these topics to be vague
and overly burdensome. During this hearing on the subject motion
(docket no. 81), Plaintiffs’ counsel could not tell me which of the
35,000 pages of discovery that Defendant provided to Plaintiffs that
they intend on using during this Rule 30(b)(6) deposition. To ask a
Defendant to have someone available without more specificity as to
extra pages of discovery is unreasonable and overly burdensome.
Accordingly, topics 1 through 8, inclusive, are STRICKEN;

14.

That as to topics 9 through 14, inclusive, 16, 19, 20, 21, 23, 26
through 39, inclusive, in the Plaintiffs’ Rule 30(b)(6) Notice (docket
no. 81-1), the Defendant’s objections to these topics are overruled
except to the extent that the responses to these topics shall be
limited to a time from 2008 to the present;

15.

That as to topics 15, 17, 18, 22, and 24 in the Plaintiff’s Rule
30(b)(6) Notice (docket no. 81-1), I find these topics to be overly
broad and unduly burdensome and therefore these topics are

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STRICKEN;
16.

That as to topic 40 in the Plaintiff’s Rule 30(b)(6) Notice (docket no.
81-1), I find this topic is protected by the attorney-client privilege
and the work product doctrine and therefore this topic is
STRICKEN; and

17.

That as to Request for Production of Documents (“RFP”) [ RFPs
numbered 1 through 5, inclusive] at the Deposition Pursuant to
F.R.C.P. 30(b)(2), in the Plaintiff’s Rule 30(b)(6) Notice (docket no.
81-1), I find that as to RFP no. 1, Defendant shall bring these
documents to the Rule 30(b)(6) deposition. As to RFPs nos. 2
through 5, inclusive, I find that Plaintiffs already have these
documents [i.e., the 35,000 pages mentioned above in this Order],
and therefore Defendant does not have to bring these documents
to the Rule 30(b)(6) deposition.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Defendant’s Motion for Protective Order (docket no. 81) is
GRANTED IN PART AND DENIED IN PART. The subject motion
(docket no. 81) is GRANTED as to topics 1 through 8, inclusive, 15,
17, 18, 22, 24, and 40. The subject motion (docket no. 81) is also
GRANTED as to RFPs 2 through 5, inclusive. These topics and

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these RFPs are STRICKEN from Plaintiff’s Rule 30(b)(6) Notice
(docket no. 81-1). The subject motion (docket no. 81) is DENIED
as to topics 9 through 14, inclusive, 16, 19, 20, 21, 23, 26 through
39, inclusive, and as to RFP no. 1. The responses to these topics
shall be limited to a time frame from 2008 to the present;
2.

That the discovery deadline is extended to February 28, 2013, for
the limited purpose of completing the Rule 30(b)(6) deposition of
the Defendant. On or before January 23, 2013, Plaintiffs shall
provide to Defendant an itemized list of documents [i.e., deposition
exhibits] from the 35,000 pages of discovery that Plaintiffs have
received from Defendant that they intend to use during the Rule
30(b)(6) deposition so that Defendant can determine a suitable
Defendant witness or witnesses to address those topics listed
above which the Plaintiff may inquire into during the Rule 30(b)(6)
deposition. The Rule 30(b)(6) deposition shall be set no sooner
than February 13, 2013, but not later than February 28, 2013;

3,

That the dispositive motion deadline of December 21, 2012, is
VACATED;

4.

That the Final Pretrial Conference on February 12, 2013, at 9:00
a.m. is VACATED;

5.

That a Status Conference is set before Magistrate Judge Watanabe
on March 21, 2013, at 9:30 a.m. At the Status Conference, the

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parties shall be prepared to give this court an update on the status
of any opt-in plaintiffs and the court will discuss setting another
Rule 16 Scheduling Conference for additional discovery for any optin plaintiffs. Counsel shall bring their calendars to this Status
Conference; and
6.

That each party shall pay their own attorney fees and costs for the
subject motion (docket no. 81) since this court finds to award
expenses under these circumstances would be unjust.

Done this 11th day of January, 2013.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE