Mendillo v. Prudential Insurance Company of America
ORDER granting in part and denying in part 34 Motion for Protective Order, as set forth in the attached ruling. Signed by Judge Holly B. Fitzsimmons on 12/12/2013. (Katz, Samantha)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
CIV. NO. 3:12CV1383 (WWE)
RULING ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER [DOC. #34]
Defendant The Prudential Insurance Company of America moves
for a protective order to preclude plaintiff Lisa Mendillo from
taking the deposition of Prudential’s former president of
annuities division, Stephen Pelletier. [Doc. #34].
opposes defendant’s motion. [Doc. #37].
On November 4, 2013,
the Court held a telephonic status conference regarding the
motion for protective order, and allowed the parties to
supplement the briefing on the motion following the deposition
of Timothy Cronin.1
Defendant filed a reply [Doc. #43], to which
plaintiff filed a sur-reply [Doc. #44].
For the reasons that
follow, defendant’s motion for protective order [Doc. #34] is
DENIED IN PART AND GRANTED IN PART.
Plaintiff brings this employment discrimination action
pursuant to the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family Medical Leave Act
(“FMLA”), and the Connecticut Fair Employment Practices Act.
[Amended Compl., Doc. #23].
Plaintiff alleges that she is now
fifty one (51) years old, and was employed by defendant or its
1 At the time of plaintiff’s termination, Timothy Cronin was the defendant’s
Senior Vice President, Investments Management.
predecessor for over fifteen (15) years.
Plaintiff alleges that
she suffered serious injuries from a car accident in May 2010,
and as a result took intermittent FMLA leave from her employment
at defendant’s “call center”.
Prior to the car accident,
plaintiff alleges that she received excellent reviews and
Following plaintiff’s FMLA leave,
plaintiff alleges, inter alia, that defendant placed her on a
“Performance Building Plan”, that she received the lowest
performance rating of her career, and was ultimately terminated
with her responsibilities delegated to the remaining, younger,
Plaintiff served defendant with a deposition notice for
Stephen Pelletier, former president of the Annuities Division at
Prudential Financial, Inc.
Mr. Pelletier currently serves as
Chief Executive Officer of Prudential Group Insurance. [Doc.
#35-1, at ¶¶ 2-3].
Mr. Pelletier avers in his affidavit in
support of the motion for protective order that he was not
directly involved in the assignment of work to plaintiff, that
he did not have any involvement in the evaluation of plaintiff,
and that he did not have any involvement in the decision to
discipline and/or terminate plaintiff. [Id. at ¶ 5]
Plaintiff alleges that weeks before her termination, she
reached out to Mr. Cronin and Mr. Pelletier for help regarding
her employment situation.
Mr. Pelletier confirms in his
affidavit that he met with plaintiff on or around July 20, 2011
as a courtesy. [Id. at ¶ 8].
This is further corroborated by
plaintiff’s notes memorializing this meeting. [Doc. #37, Ex. B].
Mr. Pelletier further states that prior to this meeting, he
contacted Gary Hogard, director of call centers, to “understand
the reason for [p]laintiff’s meeting request.” [Doc. #35-1, at ¶
Mr. Pelletier also states that he was not aware that
plaintiff had been in a car accident or disabled, that she
worked a reduced schedule, or of plaintiff’s age. [Id. at ¶ 9].
Finally, Mr. Pelletier states that any information he has
concerning plaintiff’s claims and/or job performance he has
learned from other Prudential executives and/or from his one
meeting with plaintiff. [Id. at ¶ 10-11].
Parties may obtain discovery regarding any non-privileged
matter that is relevant to the subject matter involved in the
pending litigation. Fed. R. Civ. P. 26(b)(1). The information
sought need not be admissible at trial as long as the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence. Fed. R. Civ. P. 26(b)(1).
Notwithstanding the breadth of the discovery rules, the
district courts are afforded discretion under Rule 26(c) to
issue protective orders limiting the scope of discovery. Dove v.
Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“[t]he
grant and nature of protection is singularly within the
discretion of the district court....”). When the party seeking
the protective order demonstrates good cause, the court “may
make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense, including ... that the disclosure or
discovery not be had.” Fed. R. Civ. P. 26(c)(1). “The party
resisting discovery bears the burden of showing why discovery
should be denied.” Chamberlain v. Farmington Sav. Bank, 247
F.R.D. 288, 289 (D. Conn. Nov. 30, 2007) (citing Blankenship v.
Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
A. Necessity of Deposition
Defendant argues that Mr. Pelletier, a corporate executive,
does not possess unique knowledge of the facts and issues in the
case, and that his deposition would result in undue burden and
Defendant further contends that any information
sought from Mr. Pelletier may be obtained from lower level
Plaintiff argues that Mr. Pelletier had direct
dealings with plaintiff, and therefore has firsthand and unique
knowledge relevant to the case.
Plaintiff also argues that Mr.
Pelletier’s deposition does not present any undue burden or
hardship. Finally, plaintiff contends that getting information
from “others” has not proven possible.
“While there is no per se rule barring depositions of top
corporate executives, courts frequently restrict efforts to
depose senior executives where the party seeking the deposition
can obtain the same information through a less intrusive means,
or where the party has not established that the executive has
some unique knowledge pertinent to the issues in the case.”
Rodriguez v. SLM Corp., CIV. No. 3:07CV1886(WWE), 2010 WL
1286989, at *2 (D. Conn. March 2, 2010) (internal quotations
omitted; compiling cases).
Accordingly, “[d]epositions of
senior executives are permissible when such senior executives
have had direct involvement in the underlying claims, or if the
subordinates are unable to testify in a meaningful fashion at
Trusz v. UBS Realty Investors LLC, No.3:09
CV 268(JBA), 2011 WL 577331, at *5 (D. Conn. Feb. 8,
2011)(string citation omitted).
“However, when the discovery to
be obtained is through the deposition of a senior executive, a
court must remain mindful that permitting unfettered discovery
of corporate executives would threaten disruption of their
business and could serve as a potent tool for harassment in
Travel Ctr. Of Fairfield County, Inc. v. Royal
Cruise Line, Ltd., No. 3:96CV1025(JBA), 2000 WL 306934, at *3
(Jan. 24, 2000)(quoting Tri-Star Pictures, Inc. v. Unger, 171
F.R.D. 94, 102 (S.D.N.Y. 1997)) (internal quotations omitted).
After a careful review of the parties’ submissions,
including relevant deposition excerpts and Mr. Pelletier’s
affidavit, the Court finds that Mr. Pelletier may possess
information that cannot be obtained from lower level employees
or other sources.
This includes conversations Mr. Pelletier had
with plaintiff, Mr. Hogard, and Mr. Cronin.
Indeed, given that
Mr. Hogard and Mr. Cronin could not testify with certainty as to
the substance of their respective conversations with Mr.
Pelletier about plaintiff, the Court finds that plaintiff should
be allowed to take Mr. Pelletier’s deposition concerning at
least the substance of these conversations. See Doc. #43-4, Gary
Hogard Depo. Tr., Oct. 17, 2013, at 79:6-24; 80:1-2 (testifying
he did not recall the specific conversation with Mr. Pelletier);
see also Doc. #43-5, Timothy Cronin Depo. Tr. Nov. 5, 2013, at
15:8-11; 17:4-6; 25:4-9(testifying he did not recall certain
conversations with Mr. Pelletier).
Plaintiff’s need for Mr.
Pelletier’s testimony is further amplified given Mr. Pelletier’s
averments that he spoke to Mr. Hogard and other Prudential
executives about the plaintiff.
The Court is nevertheless
mindful that Mr. Pelletier’s involvement with plaintiff’s claims
is limited, and therefore, plaintiff’s deposition of Mr.
Pelletier shall be restricted to no more than two (2) hours’
B. Location of Deposition
Defendant argues in its reply that Mr. Pelletier works for
defendant in Roseland, New Jersey, and accordingly his
deposition should occur in New Jersey or via telephone.
Plaintiff argues that because this argument was not initially
raised in plaintiff’s motion, the Court should not now consider
Alternatively, plaintiff contends that defendant’s
annuities division’s principal place of business is in Shelton,
Connecticut, and that Mr. Pelletier’s deposition should occur in
“The deposition of a corporation by its agents and officers
should ordinarily be taken at its principal place of business,
especially when… the corporation is the defendant.”
Nationwide Credit Union, 229 F.R.D. 362, 363 (D. Conn. 2005).
In light of the two (2) hour limitation imposed on Mr.
2 Defendant raised the venue issue during the November 4, 2013 telephone
status conference on the motion for protective order. The Court will
consider the venue argument.
Pelletier’s deposition, the Court agrees that he should be
deposed in New Jersey.
Although plaintiff argues that counsel
and the parties are located in Connecticut, and that the
annuities division’s principal place of business is located in
Connecticut, plaintiff ignores the fact that Mr. Pelletier is no
longer the president of the annuities division and no longer
works in Connecticut.
The Court finds that requiring Mr.
Pelletier to travel to Connecticut for a deposition that is
restricted to two (2) hours’ time would constitute an undue
Indeed, it is the “plaintiff who is generally required
to bear any reasonable burdens of inconvenience that the action
Moreover, the convenience of counsel is less
compelling than any hardship to the witnesses.”
F.R.D. at 363. (internal citations and quotations omitted).
such, the plaintiff shall depose Mr. Pelletier in Roseland, New
Plaintiff may, of course, alternatively arrange to take
Mr. Pelletier’s deposition telephonically or by video
conference, if this would be more convenient to the parties.
Accordingly, defendant’s motion for protective order [Doc.
#34] is DENIED IN PART AND GANTED IN PART.
Plaintiff will be
permitted to take the deposition of Steven Pelletier for no more
than two (2) hours.
This deposition shall occur via
telephone/video conference or in person at Mr. Pelletier’s place
of employment in Roseland, New Jersey.
The parties shall
endeavor to agree on a date and time for Mr. Pelletier’s
In the event the parties are unable to agree, they
should contact the Court for a telephone conference.
This is not a Recommended Ruling.
This is a discovery
ruling or order reviewable pursuant to the “clearly erroneous”
statutory standard of review.
28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(A); and D. Conn. L. Civ. R. 72.2.
As such, it is an
order of the Court unless reversed or modified by the district
judge upon motion timely made.
SO ORDERED at Bridgeport this 12th day of December 2013.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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