Wilson et al v. AdvisorLaw LLC et al

Filing 54

ORDER DENYING MOTION FOR PROTECTIVE ORDER 52 . By Chief Judge Marcia S. Krieger on 2/7/18. (msklc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 17-cv-01525-MSK-CBS
MARK WILSON, and
WILSON LAW LTD.,
Plaintiffs,
v.
ADVISORLAW LLC
DOCHTOR DANIEL KENNEDY, and
STACY SANTMYER,
Defendants.
______________________________________________________________________________
ORDER DENYING MOTION FOR PROTECTIVE ORDER
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendants’ Motion for
Protective Order (# 52), and the Plaintiffs’ response (# 53).1
The Court assumes the reader’s familiarity with the underlying dispute. In summary, the
Plaintiffs contend that an online review, disparaging their business, was posted by the
Defendants; the Defendants contend that the review was posted without their knowledge by
third-party Jason Bacher.
A Scheduling Order (# 28) entered in this case in September 2017, setting a discovery
deadline of February 28, 2018. Although Mr. Bacher is seemingly central to the parties’ dispute,
it appears that neither party initially intended to depose him. During a deposition of one of the

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Pursuant to D.C. Colo. L. Civ. R. 7.1(d), the Court is sufficiently advised of the issues
herein such that it need not await the filing of a reply brief.
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Defendants in late 2017, counsel for the Plaintiffs intimated2 that time-stamped shopping
receipts or other materials might exist that would demonstrate that Mr. Bacher was not
physically present where and when the disparaging review was being published. As a result of
that intimation, on January 8, 2018, the Defendants served a subpoena on Mr. Bacher, requesting
that he produce any documents in his possession that reflected his whereabouts on the date and
time in question. That subpoena directed that Mr. Bacher make such production, in person (in
Colorado) or by mail, within 21 days of service of the subpoena. The subpoena was served on
Mr. Bacher on January 13, 2018, making his response due on February 5, 2018, the first business
day occurring 21 days thereafter.
In the meantime, on January 16, 2018, the Plaintiffs noticed Mr. Bacher for a deposition
to be held in Wisconsin, the state of Mr. Bacher’s residence, on February 9, 2018. The notice
further directed that Mr. Bacher bring to the deposition “the same mobile phone you used to
make and receive calls and send and receive data” on the date that the review was published.
Both parties appear to understand that, for various reasons, testimony given by Mr. Bacher at this
deposition will be offered at trial in lieu of Mr. Bacher’s personal appearance.
The Defendants did not receive any production from Mr. Bacher on February 5, 2016,
and the following day, they filed the instant Motion for Protective Order (# 52), seeking to

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The Plaintiffs’ response to the instant motion argues that, when their counsel asked the
deponent whether Mr. Bacher could have arrived at a location by a certain time “if Mr. Bacher
had made a purchase at Walgreens for medicine at 7:13, and then canceled that transaction
because he wanted to use a different card and made another purchase at 7:19 at Walgreens,”
counsel was simply presenting a “hypothetical question.” The Plaintiffs go on to suggest that it
would be unreasonable for anyone to think that questions like this “could have asserted or
purported that Mr. Bacher possessed any receipts or documents.” Such an argument is, frankly,
insulting in its insincerity. It is abundantly clear that Plaintiffs’ counsel fully intended the
question to convey the impression that, if pressed, the Plaintiffs could and would conclusively
establish the facts recited in the predicate of the question, presumably with documents or other
tangible evidence.
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postpone the deposition until some time after Mr. Bacher complies with the subpoena. They
explain that “if this deposition goes forward, [Mr.] Bacher will bring with him the phone
containing the very same documents that he failed to produce in response to Defendants’
subpoena,” and that the Defendants “will then have to cross-examine [Mr.] Bacher about these
same documents” without having had the ability to “review, analyze, verify the authenticity, and
explore the metadata of these documents” in advance.
The Court denies the Defendants’ motion for several reasons. First, it springs from a
faulty premise: that Mr. Bacher has failed to comply with the subpoena. The subpoena
effectively set February 5 as the deadline for Mr. Bacher to respond, but also gave him the option
of responding by mail. Assuming he did so by mailing the responsive documents from
Wisconsin on February 5 (or even on Saturday, February 3, the 21st day from service of the
subpoena),3 it may be that such mailing could still have been in transit at the time the Defendants
filed the instant motion on February 6. The Court will not assume that, simply because the
Defendants did not have Mr. Bacher’s response in-hand by February 6, Mr. Bacher failed to
comply. The Court understands the Defendants’ need to move expeditiously given the
imminence of the deposition, but the closeness of the two operative dates here does not justify
assuming Mr. Bacher’s non-compliance with the subpoena in the absence of evidence.
Second, even assuming that Mr. Bacher never responded to the subpoena, the Court is not
persuaded that there is necessarily an equivalency between the requests in the Defendants’
subpoena and the Plaintiffs’ Notice of Deposition; put differently, the Court is not convinced

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The subpoena is silent as to whether the 21-day deadline is for the mailing of the
documents or for their receipt by the Defendants’ counsel. Assuming that Mr. Bacher’s
compliance was otherwise governed by Fed. R. Civ. P. 5(b)(2)(C), his mailing of responsive
documents on the 21st day would have been sufficient compliance, regardless of when they
ultimately arrived.
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that, as the Defendants assert, “[Mr.] Bacher will bring with him the phone containing the very
same documents that he failed to produce in response to Defendants’ subpoena.” The
Defendants’ subpoena requested production of “documents reflecting . . . your whereabouts”; the
Plaintiffs’ notice requested production of “[a] mobile phone.” The two terms are not inherently
synonymous, and although a phone could conceivably contain “documents,” it is also possible
for a phone to contain material that would not be commonly understood to be a “document.”
Because there is no necessary congruity between the materials requested by the Defendants and
the materials requested by the Plaintiffs, the Court cannot say that, if Mr. Bacher arrives at the
deposition, phone in hand, he will have necessarily produced something that was also responsive
to the Defendants’ subpoena. The Court will not pre-emptively continue the deposition simply
on the possibility that Mr. Bacher’s phone might contain “documents” responsive to the
Defendants’ subpoena.
Third, assuming Mr. Bacher does arrive at the deposition with documents stored on his
phone (or indeed, documents in paper form) that are responsive to the Defendants’ subpoena but
were never produced, the Court cannot say that, categorically, that fact would warrant a
continuance of the deposition. The responsive-yet-unproduced documents may be simple and
immediately understood. They may be irrelevant, falling outside the pertinent time frame. They
may be patently inconclusive on the question of where Mr. Bacher actually was at a certain point
in time. It may be that the Defendants can adequately assess the documents’ significance and
authenticity over a long lunch hour or during a brief continuance before resuming the deposition.
The remedy of continuing a deposition entirely, particularly on short notice,4 is an overly-broad
solution to a problem whose contours are, as yet, entirely speculative. If Mr. Bacher winds up
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The Court assumes that the parties may have already booked travel and accommodations
in Wisconsin by the time the Defendants filed the instant motion.
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producing responsive documents for the first time at the deposition, and if those documents are
pertinent to establishing Mr. Bacher’s whereabouts during the brief time period in question, and
if the significance of the documents can only be ascertained after extensive study, the Court
might be willing to entertain a motion by the Defendants to re-open Mr. Bacher’s deposition at a
later time to complete any questioning of Mr. Bacher regarding those documents. But the Court
will not pre-empt that deposition simply on the potential that all of those contingencies could
occur.
Accordingly, the Court finds no good cause to warrant a protective order vacating the
presently-scheduled deposition of Mr. Bacher. The Defendants’ Motion for Protective Order (#
52) is DENIED.
Dated this 7th day of February, 2018.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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