Vaughn v. Safeway, Inc.

Filing 85

ORDER granting in part and denying in part 64 Motion to Compel Rule 30(b)(6) Deposition; denying 67 Motion to Compel Depositions. The date by which to complete discovery is extended to 3/30/2015 for the sole purpose of taking the Rule 30(b)(6) deposition. The deadline for filing dispositive motions is 4/14/2015. Responses are due 4/29/15 and replies are due 5/11/15. By Magistrate Judge Nina Y. Wang on 3/18/15. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01066-REB-NYW
JAMES VAUGHN,
Plaintiff,
v.
SAFEWAY, INC.,
Defendant.
______________________________________________________________________________
ORDER ON PLAINTIFF’S MOTION TO COMPEL F.R.C.P. 30(b)(6) DEPOSITION OF
DEFENDANT AND MOTION TO COMPEL DEPOSITIONS
______________________________________________________________________________
Magistrate Judge Nina Y. Wang
This matter is before the court on Plaintiff James Vaughn’s Motion to Compel F.R.C.P.
30(b)(6) Deposition of Defendant (“Motion to Compel Rule 30(b)(6) Deposition”). [#64, filed
February 4, 2015]. Also before the court is Plaintiff’s Motion to Compel Depositions (“Motion
to Compel Depositions”). [#67, filed February 6, 2015]. These matters were referred to this
Magistrate Judge pursuant to the Order Referring Case dated April 15, 2014 [#5] and
memoranda dated February 5, 2015 [#65] and February 6, 2015 [#68], respectively. This court
has carefully considered the Motions and related briefing, the entire case file, the arguments
offered by the parties during the February 27, 2015 Motions Hearing, as well as applicable case
law. For the following reasons, the Motion to Compel Rule 30(b)(6) Deposition is GRANTED
IN PART, and DENIED IN PART, and the Motion to Compel Depositions is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff James Vaughn (“Plaintiff” or “Mr. Vaughn”) asserts that Defendant Safeway,
Inc. (“Defendant” or “Safeway”) unlawfully discriminated against him on account of disability

in dismissing him from his position of store manager. [#42, #77]. It is undisputed that Mr.
Vaughn has been reinstated to his former position as of May 2014. [#17, at 9].
On June 26, 2014, Magistrate Judge Boland issued a Scheduling Order designating
January 30, 2015 as the date by which the parties must complete discovery, and February 27,
2015 as the date by which to file dispositive motions. [#17]. On January 22, 2015, the parties
filed a Stipulated Motion for Extension of the Discovery Deadline. [#58]. The court denied this
Motion on January 26, 2015, subject to a renewed motion that addressed the deadline for filing
dispositive motions. [#60]. The parties filed a second Stipulated Motion the following day
seeking to extend the deadline to complete discovery to March 2, 2015 and the deadline for filing
dispositive motions to March 29, 2015. [#61]. The court granted this Motion on January 28,
2015. [#63]. This action was reassigned to the undersigned Magistrate Judge for pretrial matters
on February 10, 2015. [#69].
On February 4, 2015, Plaintiff filed the pending Motion to Compel Rule 30(b)(6)
Deposition. [#64]. Two days later, Plaintiff filed the pending Motion to Compel Depositions.
[#67]. Defendant responded to these Motions in a single brief filed February 24, 2015. [#79].
On February 27, 2015, the court held a hearing on these Motions, at which both motions were
taken under advisement. [#80]. The court further ordered counsel to meet and confer regarding
the Motion to Compel Rule 30(b)(6) Deposition and file a status report as to their efforts and
pending issues by March 3, 2015. [Id.]. Counsel for Plaintiff filed his Status Report on the
designated date indicating that he and defense counsel could not overcome their impasse. [#81].
ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) authorizes discovery of “any nonprivileged
matter that is relevant to any party's claim or defense--including the existence, description,

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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.” Relevancy is broadly
construed, and a request for discovery should be considered if there is “any possibility” that the
information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v.
Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001). However, all discovery is subject to the
proportionality limitations imposed by Rule 26(b)(2)(C).

See Fed. R. Civ. P. 26(b)(1).

Therefore, while the court may order discovery of any matter relevant to the issues involved in
the action, it “must limit the frequency or extent of discovery” under certain circumstances. Fed.
R. Civ. P. 26(b)(2)(C)(i)-(iii). It is incumbent upon the court to consider how much discovery is
reasonable in a given case in light of the claims and defenses asserted, the significance of the
discovery sought to the propounding party, and the costs and burden to the producing party. See
id. The Federal Rules of Civil Procedure also 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. See Fed. R. Civ. P. 26(c).
“When the discovery sought appears relevant, the party resisting the discovery has the
burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does
not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of
such marginal relevance that the potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.” Simpson v. Univ. of Colo., 220 F.R.D. 354,
359 (D. Colo. 2004) (citations omitted). The Advisory Committee Note to the 2000 Amendment
to Rule 26(b)(1) directs courts to involve themselves in discovery disputes to determine whether
discovery is relevant to the parties’ claims or defenses, and if not, to determine whether “good
cause exists for authorizing it so long as it is relevant to the subject matter of the action.”

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The Scheduling Order entered June 26, 2014, provides that each party is limited to ten
depositions. [#17] That Order reflects Plaintiff’s intention to depose Kurt Lawrence, Serena
Bernstein, Roxy Lewis, Kenny Smith, and a Rule 30(b)(6) corporate representative of Defendant.
Id.

Prior to the filing of the Motions, Plaintiff deposed five Safeway employees: Denver

Division Human Resources Director Debbie Portwood, Denver Division Human Resources
Manager Roxy Lewis, former Denver Division Human Resources Representative Serena
Bernstein, Safeway Workers’ Compensation Claims Adjuster Kurt Lawrence, and District
Manager for the Colorado Springs District Shirley Barela. [#79 at 3].
On January 5, 2015, Plaintiff’s counsel, Mr. Thigpen, emailed defense counsel, Mr.
Eurich, requesting to depose Kenny Smith, William Harris, Stacy Solorio, Dian Emerson, and
Rule 30(b)(6) representatives. [#67 at 5]. Mr. Eurich responded that he would not make Mr.
Harris, Safeway’s in-house counsel, available on the basis of attorney-client privilege, he would
not make Ms. Solorio or Ms. Emerson available on the basis of relevance and duplicative
testimony, and he would require a Rule 30(b)(6) notice of proposed deposition topics prior to
making a corporate representative available. [#67-1 at 3-4].1
On January 13, 2015, Mr. Thigpen provided Mr. Eurich with a Notice of Rule 30(b)(6)
Deposition of Defendant (the “Notice”). [#64-1 at 4-16; #64 at 5]. The Notice spanned eleven
pages and listed twelve topics, each with multiple sub-parts. [#64-1 at 10-15]. Mr. Eurich
declined via email to make a corporate representative available, writing that he could not identify
a topic in the Rule 30(b)(6) Notice “about which you haven’t already asked multiple witnesses or
submitted multiple interrogatories or document requests.

Quite simply, there are no new

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Plaintiff deposed District Manager Kenny Smith on February 19, 2015. [#79 at n. 2].
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witnesses whom I would or could identify on any of your 30(b)(6) topics whom you haven’t
already exhaustively deposed.” [#64-1 at 17].
A.

Motion to Compel Rule 30(b)(6) Deposition
Mr. Vaughn claims he requires a deposition of Safeway’s corporate representative

because the testimony elicited in the previous six depositions of Safeway employees is
contradictory. Safeway argues that Mr. Vaughn is not entitled to a Rule 30(b)(6) Deposition
because it would be entirely duplicative of those six previous depositions. During the oral
argument, the court indicated that it was inclined to allow Mr. Vaughn to pursue a deposition of
a corporate designee of Safeway, but to the extent that Safeway intended to be bound by the
testimony of an employee whose deposition had already been taken, the Parties should confer
and attempt to focus the Rule 30(b)(6) deposition on gaps between prior depositions that
Safeway identified as binding the company and outstanding issues. The court then ordered the
Parties to file a Joint Status Report after their meet and confer. [#80].
This court notes some concern regarding counsel’s efforts to comply with the February
27, 2015 Order. The correspondence attached to the Status Report does not identify whether
Safeway identified to Mr. Vaughn any deponents whose testimony affirmatively bound the
corporation on specific topics. Nor does the Status Report reflect any rigorous attempt by
counsel to actually discuss whether any agreement could be reached as to the scope of the Rule
30(b)(6) topics. The court ordered the Parties to confer, which means “to hold a conference;
compare views; consult together.” Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo.
2003) (citing The American Heritage Dictionary of the English Language 278-79 (9th ed. 1971).
The analogous language of Local Rule 7.1(a) has been interpreted to mean “holding a
conference, possibly through the exchange of correspondence but preferably through person-toperson telephone calls or face-to-face meetings, and by comparing views and attempting to reach
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an agreement, including by compromise if appropriate.” See Cunningham v. Standard Fire Ins.
Co., No. 07-cv-02538-REB-KLM, 2008 WL 2247860, at *1 (D. Colo. May 29, 2008). The court
directed the responsibility to meet and confer to both Parties – and the resulting exchange of
electronic mail simply reiterating the Parties’ respective positions does not amount to a
meaningful meet and confer.
As reflected in the Advisory Committee Notes to the 1970 Amendments to Rule 30, Rule
30(b)(6) was intended not only to avoid the situation in which multiple witnesses from the same
organization claim lack of knowledge, thus leaving the other party with no testimony binding the
corporation, but also to prevent unnecessarily large numbers of corporate officers and agents
from being deposed. Fed. R. Civ. P. 30 Advisory Committee’s Note (1970). The practical
consequence of the Parties’ failure to meet and confer in a meaningful manner is that this court
cannot determine whether the noticed Rule 30(b)(6) topics are duplicative of the deposition
testimony already taken to which Safeway has agreed to be bound as a corporate designee, or
whether the previous testimony should be sufficient for Plaintiff's purposes.

Safeway’s

arguments set forth in its Opposition and the attached exhibits are insufficient to establish its
position that the requested Rule 30(b)(6) deposition is cumulative of other depositions or its
discovery responses. This court’s examination of the Federal Rules did not reveal any authority
to suggest that a party’s responses to interrogatories per se obviate the other party’s prerogative
to seek a deposition under Rule 30(b)(6). And while the court acknowledges that some of Mr.
Vaughn’s deposition topics overlap with other discovery requests made in this case, a review of
Safeway’s written discovery responses to Interrogatory Nos. 1, 4, 7, and 17 [#79, at 7-8], reveals
that they are not so exhaustive as to preclude Mr. Vaughn from seeking additional information
from a corporate designee.

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Because permissible discovery need only appear to be reasonably calculated to lead to the
discovery of admissible evidence, and it is unclear what testimony to date binds Safeway, the
court accepts Mr. Vaughn's assertion that he requires additional information related to Safeway’s
corporate position regarding his allegations that Safeway knowingly discriminated against him
based on his disability and that Safeway retaliated against him, as part of a greater pattern and
practice, for filing a worker’s compensation claim. Against this context, the court considers
whether the topics set forth in Mr. Vaughn’s Rule 30(b)(6) Deposition Notice [#81-1 at 15] are
proportional to the scope of this case.
Based on the record before it, the court hereby FINDS that Mr. Vaughn may take a Rule
30(b)(6) deposition on the following topics, as amended by the court:
(1) Topic 1: Accommodations requested, discussed, given, not given, and the rationale
for such, as it concerns Mr. Vaughn from May of 2011 until his reinstatement;
(2) Topic 5: Facts and support for Safeway’s Affirmative Defense Number 5, and how
such applies to Mr. Vaughn’s case;
(3) Topic 6: Facts and support for Safeway’s Affirmative Defense Number 12, and how
such applies to Mr. Vaughn’s case;
(4) Topic 7: Factual support of Safeway’s claim that there was an actual economic cost,
not book entry, to allow Mr. Vaughn to delegate certain job functions from May of
2011 until his reinstatement, including what employee received the delegation, what
delegation occurred, and how SAFEWAY001549-001614 demonstrate such;
(5) Topic 8: The underlying economic data for the creation of SAFEWAY001549001614, the location of such data, and who created such data.
.

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The Motion to Compel Rule 30(b)(6) Deposition is DENIED as to all other matters, as
cumulative to other topics propounded either through written discovery or permitted Rule
30(b)(6) topics. In addition, given the impending deadlines in this case, the court sua sponte
extends the discovery deadline to March 30, 2015 only to permit the Rule 30(b)(6) deposition of
Safeway on these topics and extends the deadline for filing dispositive motions up to and
including April 14, 2015. However, in light of the fact that trial begins in this matter on June 1,
2015, the briefing schedule for dispositive motions is contracted as follows: Responses due April
29, 2015, and Replies due May 11, 2015.
B.

Motion to Compel Depositions
Plaintiff claims he is entitled to take the depositions of Mr. Harris, Ms. Solorio, and Ms.

Emerson because he is allowed up to ten depositions pursuant to the Scheduling Order and the
topics he wishes to present in the depositions are relevant to the claims and defenses of the case.
Defendant argues that Mr. Harris should not be produced for a deposition because he is
managing this action for Safeway and all communications regarding Plaintiff’s termination and
eventual return to work are protected by attorney-client privilege. Defendant further argues that
Plaintiff has not demonstrated that no other means exist to obtain the information except to
depose Mr. Harris or that the information is crucial to the preparation of the case, as discussed in
Simmons Foods, Inc. v. Willis, 191 F.R.D. 625, 630 (D. Kan. 2000) (citing Shelton v. American
Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986). [#79 at 13-14]. Defendant next argues that
Ms. Emerson and Ms. Solorio have left the employ of Defendant, and are furthermore without
any personal knowledge of Plaintiff or the circumstances surrounding his termination and
reinstatement. [#79 at 16].

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At oral argument, counsel for Plaintiff concurred that the topics to be posed to these three
individuals could be subsumed by a Rule 30(b)(6) deposition. Having granted Plaintiff’s request
to proceed with such deposition, the court hereby DENIES the motion to compel the individual
depositions of Mr. Harris, Ms. Solorio, and Ms. Emerson. Nothing in this Order will preclude
Safeway from designating these individuals as corporate designees, if appropriate.
CONCLUSION
For the reasons set forth herein, IT IS ORDERED:
(1) The Motion to Compel Rule 30(b)(6) Deposition [#64] is GRANTED IN PART and
DENIED IN PART as specified above;
(2) The court sua sponte EXTENDS the discovery deadline to March 30, 2015, only for
the purpose of taking the Rule 30(b)(6) deposition of Defendant, and the deadline for
filing dispositive motions up to and including April 14, 2015, with Responses due
April 29, 2015 and Replies due May 11, 2015;
(3) All other deadlines set by the court, including but not limited to those before District
Judge Blackburn REMAIN SET;
(4) The Motion to Compel Depositions [#67] is DENIED; and
(5) All other requests are DENIED.

DATED: March 18, 2015

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

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