Gallegos et al v. Safeco Insurance Company of America

Filing 80

MINUTE ORDER denying 63 Plaintiffs' Motion for Protective Order Re: Scope ofSecond Deposition of Scott Johnson, P.E. Denying 66 Plaintiffs' Supplement to Plaintiffs' Motion for Protective Order Re: Scope of Second Deposition of Scott Johnson, P.E. Discovery cut off date is extended to 3/31/2015, to allow the completion of Scott Johnson, P.E.'s deposition. By Magistrate Judge Michael J. Watanabe on 3/3/2015. (emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01114-WJM-MJW
EUGENE GALLEGOS and
DIANE GALLEGOS,
Plaintiff(s),
v.
SAFECO INSURANCE COMPANY OF AMERICA,
Defendant(s).

MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiffs’ Motion for Protective Order Re: Scope of
Second Deposition of Scott Johnson, P.E. (docket no. 63) and Plaintiffs’ Supplement to
Plaintiffs’ Motion for Protective Order Re: Scope of Second Deposition of Scott
Johnson, P.E. (docket no. 66) are both DENIED for the following reasons. Defendant
may take a second deposition of Scott Johnson, P.E., for an additional four hours, and
such deposition may include questioning of Mr. Johnson’s November 20, 2014, report
and supporting exhibits. Each party shall pay their own attorney fees and costs for
these motions (docket nos. 63 and 66).
It is FURTHER ORDERED that the discovery cut off date is extended to
March 31, 2015, to allow the completion of Scott Johnson, P.E.’s deposition.
Rule 26(c) of the Federal Rules of Civil Procedure provides that for “good cause”
shown the court may enter an order to protect a party from annoyance, embarrassment,
oppression, or undue burden or expense. It is the Defendants’ burden to establish
sufficient “good cause.” See Nestle Foods Corp. v. Aetna Cas. & Surety Co., 129
F.R.D. 483, 484 (D.N.J. 1990); United States v. Hooker Chems. & Plastics Corp., 90
F.R.D. 421, 425 (W.D.N.Y 1981). The decision to issue a protective order rests within
the sound discretion of the trial court. Sladek v. Bank of Am., N.A., 2014 WL 2882664,
at *1 (D. Colo. June 24, 2014).
Scott Johnson is a professional engineer hired by the Plaintiffs and whose report
was submitted to Safeco [Defendant] when this case was filed. On October 17, 2014,
Safeco [Defendant] took the deposition of Mr. Johnson for approximately three hours.
Safeco [Defendant] now seeks a continued deposition [second deposition] of Mr.

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Johnson since Plaintiffs waited until November 24, 2014, and after Mr. Johnson’s first
deposition to disclose Mr. Johnson as Plaintiffs’ expert witness with a supplemental
Rule 26(a)(2) disclosure.
Plaintiffs argue that any second deposition should be limited in scope. Safeco
[Defendant] argues that Mr. Johnson has never been deposed in his capacity as a
retained expert witness or regarding his November 20, 2014, expert report and
opinions, and it would be prejudicial to Safeco [Defendant] if it was precluded from
doing so.
Here, the court agrees with Safeco [Defendant] and finds that Plaintiffs have
failed to demonstrate under Fed. R. Civ. P. 26(c) “good cause” to grant a protective
order. Accordingly, Plaintiffs’ Motion for Protective Order Re: Scope of Second
Deposition of Scott Johnson, P.E. (docket no. 63) and Plaintiffs’ Supplement to
Plaintiffs’ Motion for Protective Order Re: Scope of Second Deposition of Scott
Johnson, P.E. (docket no. 66) should both be denied.

Date: March 3, 2015