Gilbert v. E.I. Dupont De Nemours & Co et al

Filing 48

RULING. For the reasons set forth in the attached Ruling, the Court GRANTS both the 39 MOTION for Protective Order by Axalta Coating Systems, LLC and the 40 MOTION for Protective Order by Passonno Paints, Inc. Signed by Judge Sarah A. L. Merriam on 6/9/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
JEFFREY N. GILBERT
:
:
v.
:
:
E.I. DUPONT DE NEMOURS & CO., :
AXALTA COATING SYSTEMS, LLC
:
and PASSONNO PAINTS, INC.
:
:
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Civ. No. 3:15CV00988(AWT)

June 9, 2016

RULING ON AXALTA COATING SYSTEMS, LLC AND PASSONNO PAINTS,
INC.’S MOTIONS FOR PROTECTIVE ORDER [Doc. ##39, 40]
Pending before the Court are the motions of defendants
Axalta Coating Systems, LLC (“Axalta”) and Passonno Paints, Inc.
(“Passonno”), seeking orders of protection from the production
of documents sought in connection with two notices of deposition
served by plaintiff, Jeffrey N. Gilbert (“plaintiff”). [Doc.
##39, 40]. Plaintiff has filed a Memorandum of Law in Opposition
to Axalta and Passonno‟s Motions for Protective Order. [Doc.
##41, 44]. Axalta and Passonno have each filed a reply to
plaintiff‟s opposition. [Doc. ##43, 47]. For the reasons
articulated below, the Court GRANTS Axalta and Passonno‟s
Motions for Protective Order. [Doc. ##39, 40].
A. Background
Plaintiff brings this products liability action against
Axalta, Passonno, and a defendant not implicated by the Motions
for Protective Order, E.I. Du Pont de Nemours & Co. See Doc. #1,
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Complaint. Upon the referral of District Judge Alvin W.
Thompson, on October 28, 2015, the undersigned conducted a
telephonic case management and scheduling conference. [Doc.
##36, 38]. Following this conference, the Court entered a
Scheduling Order requiring, inter alia, that all written
discovery be served and responded to on or before February 5,
2016. [Doc. #37 at 1]. Depositions of all fact witnesses were to
be completed by April 29, 2016. Id. Fact discovery also closed
on April 29, 2016. Id.
On April 19, 2016, just ten days before the fact witness
deposition deadline and the close of discovery, plaintiff served
via electronic mail three notices of deposition, one directed to
each named defendant. The notice directed to Axalta set a
deposition for April 28, 2016, of “an individual at Axalta ...
with the most knowledge of Axalta[‟s] ... paint products,
testing of their paint products, warnings about their paint
products, sales of their paint products, and of the facts which
are the subject of this action.” [Doc. #39-2]. The notice also
included a Request to Produce at Deposition seven categories of
documents. Id.
Similarly, the notice directed to Passonno set a deposition
for April 28, 2016, of “an individual at Passonno ... with the
most knowledge of Passonno[‟s] ... paint products, testing of
their paint products, warnings about their paint products, sales
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of their paint products, and of the facts which are the subject
of this action,” [Doc. #40-2]. The notice similarly included a
Request to Produce at Deposition seven categories of documents.
Id.
In accordance with the Local Rules, counsel for plaintiff
and defendants Axalta and Passonno (hereinafter Axalta and
Passonno are collectively referred to as the “defendants”) held
a good faith meet and confer to discuss defendants‟ objections
to the April 19, 2016, notices of deposition. As a result, the
parties have reached a tentative resolution of all issues,
except the Requests to Produce at Deposition seeking document
production. Presumably as a result of this meet and confer, on
May 12, 2016 and May 24, 2016, plaintiff re-issued the
respective Notices of Deposition, each of which (six in total)
contemplates a different topic of examination, and which seek
the same Requests to Produce at Deposition, albeit now
distributed amongst the separate notices. See Doc. ##41-1, 43,
44-1, 47. Defendants do not object to the depositions of their
respective corporate representatives.
B. Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties
may
obtain
discovery
regarding
any
nonprivileged matter that is relevant to any party‟s
claim or defense and proportional to the needs of the
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case, considering the importance of the issues at
stake in the action, the amount in controversy, the
parties‟ relative access to relevant information, the
parties‟ resources, the importance of the discovery in
resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
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. See Fed. R. Civ. P. 26(c)(1). Rule 26(c) of the
Federal Rules of Civil Procedure provides, in pertinent part:
“The Court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). The movant
bears the burden of demonstrating good cause for the issuance of
the protective order. See Brown v. Astoria Fed. Sav. & Loan
Ass‟n, 444 F. App‟x 504, 505 (2d Cir. 2011). “To establish good
cause under Rule 26(c), the party must set forth a „particular
and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.‟” Bernstein v. Mafcote,
Inc., 43 F. Supp. 3d 109, 113 (D. Conn. 2014) (citing Jerolimo
v. Physicians for Women, P.C., 238 F.R.D. 354, 356 (D. Conn.
2006)).

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C. Discussion
Defendants‟ motions seek an order protecting them from
being required to respond to the Requests to Produce at
Deposition set forth in the April 19, 2016, notices of
deposition.1 Each moving defendant asserts the same arguments in
support of granting a protective order, specifically, that (1)
the notices are an attempt to circumvent the Scheduling Order
and (2) the notices fail to provide the requisite 30 days
pursuant to Rule 34 in which to respond to document requests.
Plaintiff‟s response, which notably does not rely on any binding
authority, claims that the notices of deposition were made
pursuant to Rule 30(b)(2), and therefore, “whether the plaintiff
can attach a Rule 34 request for documents to a Rule 30(b)(2)
party deposition notice after the deadline for written discovery
had passed depends on the nature and volume of the documents or
things sought by the deposition notice.” [Doc. #41 at 3l; Doc.
#43 at 3]. Plaintiff continues: “If the documents sought are few
and simple and closely related to the oral examination sought
the document request falls under Rule 30(b)(2).” Id. at 3-4
(citing Carter v. United States, 164 F.R.D. 131, 133 (D. Mass.
1995)).

Because the Motions for Protective Order pre-dated the reissued notices of deposition, the Court construes the
defendants‟ objections to the original notices as applying in
equal force to the re-issued notices.
1

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Plaintiff‟s argument is misplaced and unpersuasive. The
original notices provided less than ten days in which to produce
a corporate witness for the deposition.2 “That is simply not
enough notice[.]” Lagnese v. Town of Waterbury, No.
15CV00975(AWT), 2015 WL 7432318, at *2 (D. Conn. Nov. 23, 2015)
(deposition notices issued one to six calendar days before
scheduled deposition did not provide enough notice), adhered to
on reconsideration sub nom. Lagnese v. City of Waterbury, No.
15CV00975(AWT), 2015 WL 9255540 (Dec. 18, 2015). This is
particularly true of providing notice to corporations, such as
the defendants here, whose designated witnesses are likely to
live out of state, or to have other matters occupying their
calendars well in advance of a mere nine days‟ advance notice.
Of further concern is that the original notices requested
that documents be produced at the time of deposition, i.e.,
within nine days. The original notices were issued pursuant to
Rules 30(b) and 34. [Doc. #39-2, 40-2]. “Rule 30, which allows
the deposing party to request that documents be produced at the
time of the deposition, does indeed incorporate Rule 34. Rule
34, in turn, states that the party to whom the request is
directed must respond in writing within 30 days after being
served. The Court has found nothing to indicate that the 30-day
Notably, the re-issued notices of deposition do not set forth a
date for the depositions of defendants‟ representatives, likely
because the Motions for Protective Order were then pending.
2

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limitation is not applicable to document requests incorporated
into deposition notices.” Lagnese, 2015 WL 7432318, at *2.
Indeed, Courts in this district, and others, have explicitly
found Rule 34 applicable to Rule 30(b)(2) document requests. See
Sheehy v. Ridge Tool Co., No. 3:05CV01614(CFD)(TPS), 2007 WL
1548976, at *4 (D. Conn. May 24, 2007) (granting protective
order where: “The notices [of deposition] gave the defendants
only seven to eleven days to produce documents and/or assert
objections. Under Rule 30(b)(5) any request for the production
of documents made in a notice for deposition is governed by Rule
34. Rule 34(b) permits 30 days to respond to a production
request. The production requests attached to the notices of
deposition in question thus violate the Rules.”)3; Ottaviano v.
Pratt & Whitney, Div. of United Techs. Corp., No.
3:00CV536(PCD), 2001 WL 650708, at *1 (D. Conn. June 7, 2001)
(finding deponent was “entitled to the full thirty days, from
the date of receipt of the notice, in which to respond[]” to
Rule 30 requests because Rule 30 “require[s] that Rule 34 be
applied to such requests.”); RM Dean Farms v. Helena Chem. Co.,
No. 2:11CV00105(JLH), 2012 WL 169889, at *2 (E.D. Ark. Jan. 19,
2012) (“[A] party has 30 days within which to respond to a
document request, even if the request is included in a notice of

Federal Rule of Civil Procedure 30(b)(5) was redesignated in
2007 as Federal Rule of Civil Procedure 30(b)(2).
3

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deposition, unless the time is shortened by stipulation or court
order.” (citation omitted)); ICE Corp. v. Hamilton Sundstrand
Corp., No. 05CV4135(JAR), 2007 WL 4334918, at *3 (D. Kan. Dec.
6, 2007) (“ Fed. R. Civ. P. 30(b)(5) provides that any deposition
notice which is served on a party deponent and which requests
documents to be produced at the deposition must comply with Fed.
R. Civ. P. 34‟s thirty-day notice requirement. ... [A] party may
not unilaterally shorten that response period by noticing a
deposition and requesting document production at that
deposition. Other courts outside this District have also adopted
this rule.” (internal quotation marks and footnotes omitted));
Temple v. Am. Airlines, Inc., No. 3:99CV2289(AH), 2001 WL
1012683, at *2 (N.D. Tex. Aug. 17, 2001) (“[I]n also calling for
production of documents, Rule 30(b)(5) and Rule 34 require at
least thirty days notice[.]”), aff‟d sub nom. Temple v. Am.
Airlines, 37 F. App‟x 87 (5th Cir. 2002). The original notices
of deposition fail to provide defendants with the requisite 30
days in which to respond to the document requests, and therefore
violate Rule 34.
The Requests to Produce at Deposition are also untimely
under the current Scheduling Order. [Doc. #37]. Pursuant to that
order, all written discovery was to have been issued and
responded to on or before February 5, 2016. Id. at 1. Here,
plaintiff issued his notices of deposition and requests to
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produce on April 19, 2016, more than two months after the
deadline to issue and respond to written discovery expired.
Therefore, not only are the requests untimely, but in light of
the date on which the notices were served, defendants could not
possibly respond to such requests within the timeframe ordered
by the Court. See, e.g., Breffka & Hehnke GmbH & Co. v. M/V
GLORIOUS SUCCESS, No. 01CV10599(JFK)(MHD), 2002 WL 31415624, at
*3 (S.D.N.Y. Oct. 28, 2002) (“The fact interrogatories are
untimely since they were served only two and one-half weeks
before the end of fact discovery.”); Niederquell v. Bank of Am.
N.A., No. 11CV03185(MSK)(MJW), 2013 WL 500385, at *3 (D. Colo.
Feb. 11, 2013) (“[T]he plain language of Rule 30 dictates that
Rule 34 governs the production of documents at depositions. It
follows, therefore, that a Rule 34 request accompanying a notice
of deposition must be served prior to the Rule 34 deadline set
forth in the scheduling order. ... [H]olding otherwise would
largely render the Rule 34 deadline meaningless.”). The Court
further notes that despite having knowledge of these deadlines
since October 28, 2015, plaintiff waited until barely one week
before the close of fact discovery to seek any written
discovery. See Doc. #39-1 at 2, #40-1 at 2 (“Plaintiff failed to
serve written discovery requests within the time permitted by
this Court.”).

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Plaintiff has now re-noticed the defendants‟ depositions;
these notices continue to seek the production of documents at
the time of the deposition, which has yet to be set. [Doc. ##411, 44-1]. Although these amended notices may cure the technical
Rule 34 deficiencies noted above, the document requests and the
attendant responses are still untimely under the Court‟s
Scheduling Order. Plaintiff argues that because the Requests for
Production at Deposition contained in the re-issued notices are
“relatively few and simple,” the Court should order defendants
to respond despite the fact that such requests and responses
fall outside the deadlines for propounding and responding to
written discovery. In support of this argument, plaintiff relies
on a 1970 advisory committee note to Rule 30(b)(2) and the
District of Massachusetts case of Carter, 164 F.R.D. at 133. See
Doc. #41 at 3-4, #44 at 3-4. Plaintiff‟s reliance is misplaced.
Carter specifically addressed the “interrelationship”
between the former iteration of Rule 30(b)(2), Rule 34, and the
Court‟s scheduling order. See Carter, 164 F.R.D. at 131. Similar
to the circumstances here, in Carter, plaintiff issued notices
of deposition for various corporate representatives of
defendants, which also sought the production of documents at the
time of the deposition. Id. Defendant objected to the notices on
several grounds, including that “the Court‟s original scheduling
order, as extended, set a deadline for serving written discovery
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requests which deadline had long since passed by the time
Plaintiff noted the depositions at issue.” Id. at 132. The
District of Massachusetts Court examined the advisory committee
note upon which plaintiff now relies, and stated:
In essence, a document request under Rule 30(b)[(2)]
is a complement to a Rule 30 deposition, not a
substitute for a Rule 34 document request. This
guideline is entirely in accord with the spirit, if
not the letter, of this Court‟s scheduling order.
Thus,
while
non-expert
depositions
...
may
be
completed pursuant to this Court‟s scheduling order by
a date later than that for written discovery requests,
document requests which fall under the rubric of a
Rule 30(b)[(2)] deposition should be “few and simple”
and “closely related to the oral examination” sought.
Otherwise, the Court may assume that the document
request falls under Rule 34 and, as such, is barred as
untimely under the Court‟s scheduling order.
Id. at 133. Plaintiff contends that the document requests set
forth in the re-issued notices of deposition seek “relatively
few and simple documents that are limited to a two year time
period.” [Doc. #41 at 4, #44 at 4]. The Court disagrees with
plaintiff‟s characterization of the documents sought. First,
although plaintiff has limited his requests to a two-year time
period, he specifically seeks documents for the two-year time
period preceding May 24, 2012. This would require defendants to
search for documents that are four to six years old and likely
not readily available for production. Second, the nature of the
documents sought has the potential to implicate broad swaths of
information, and not, as contemplated by the Carter court,

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documents which are “few and simple and closely related to the
oral examination.” Carter, 164 F.R.D. at 134. For example, from
defendant Axalta plaintiff seeks, inter alia: “Copies of any and
all correspondence (paper and electronic) between Axalta Coating
Systems, LLC and Hartford Wire Works, Windsor, CT in the two
years prior to May 26, 2012.”; “Copies of all invoices,
receipts, placement orders, accompanying literature, contracts,
warnings, etc. involving paint products/orders etc. (either in
paper or electronic format) sent and received to and from
Hartford Wire Works, Windsor, CT in the two years prior to May
26, 2012.”; and “Copies of any and all correspondence (paper or
stored electronically) in possession concerning any safety or
health concerns involving the paint products and their
contents/ingredients/chemicals (produced at any time) sent/sold
to Hartford Wire Works, Windsor, CT in the two years prior to
May 26, 2012.” [Doc. #41-1]. These are but three of seven
requests directed to representatives of Axalta. Plaintiff seeks
similar production from the representatives of Passonno. See
generally Doc. #44-1. Not only do these requests potentially
implicate documents that have no relevance to plaintiff‟s
claims, but they further have the potential to yield a
significant volume of documents. This plainly falls outside the
contemplation of Carter and the 1970 advisory committee note.
Accordingly, plaintiff‟s argument on this point is without
12

merit, as the Requests for Production at Deposition fall under
the rubric of Rule 34, and therefore, are untimely under the
Court‟s Scheduling Order.
Finally, plaintiff contends that the defendants, “to secure
an advantage at trial, [are] merely trying to prevent the
plaintiff from obtaining the necessary information needed for
trial.” Id. at 4. This statement is unsupported. Any prejudice
to plaintiff resulting from the inability to obtain the
requested documents was caused primarily by his delay in
propounding discovery in this matter. Defendants have agreed to
produce their witnesses for deposition, and plaintiff may
attempt to obtain the information he seeks through that
testimony. Although preparing for such depositions may be
impeded without the use of documents, plaintiff chose not to
seek fact discovery until the eleventh hour -- a mere ten days
before the close of fact discovery, and over two months after
the deadline for issuing and responding to written discovery.
As stated by the Eastern District of New York:
The Second Circuit has ... held that the discovery
period should not be extended when a party has had
ample opportunity to pursue the evidence during
discovery. Trebor Sportswear Co., Inc. v. The Limited
Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (“trial
court may properly deny further discovery if the nonmoving party has had a fully adequate opportunity for
discovery”); Burlington Coat Factory Warehouse Corp.
v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir. 1985)
(denying further discovery because plaintiff had
“ample time in which to pursue the discovery that it
13

now claims is essential”); see also Fed. R. Civ. P.
26(b)(2)(C)(ii) (court “must” limit scope of discovery
where “the party seeking discovery has had ample
opportunity to obtain the information by discovery in
the action”).
Wingates, LLC v. Commonwealth Ins. Co. of Am., 21 F. Supp. 3d
206, 215 (E.D.N.Y. 2014), aff‟d, 626 F. App‟x 316 (2d Cir.
2015). Here, plaintiff was afforded ample time to complete
written discovery.4 Plaintiff declined to do so.
Accordingly, defendants‟ Motions for Protective Orders
[Doc. #39, 40] are GRANTED. Defendants shall not be required to
respond to the Requests for Production at Deposition.5 The
deadline by which to depose the corporate representatives of
Axalta and Passonno is hereby extended, nunc pro tunc, to July
6, 2016. This order does not extend any other deadlines in this
matter.

Indeed, the parties‟ Rule 26(f) Report contemplated that all
discovery would commence by August 21, 2015, which therefore
provided plaintiff over five months to complete written fact
discovery. See Doc. #34 at 4.
4

The parties are, of course, expected to comply with the Federal
Rules of Evidence, including Rule 612, which provides that when
a witness uses a writing to refresh memory, the “adverse party
is entitled to have the writing produced at the hearing, to
inspect it, [and] to cross-examine the witness about it[.]” Fed.
R. Evid. 612(b). See Ice Corp., 2007 WL 4334918, at *4-5
(discussing Federal Rule of Evidence 612 in the context of
producing documents at deposition).
5

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D. Conclusion
For the reasons set forth herein, the Court GRANTS
defendants‟ Motions for Protective Order. [Doc. ##39, 40].
This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. See 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 New Haven, Connecticut, this 9th day of June,
2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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