Lancaster v. Valdez et al

Filing 103

MEMORANDUM DECISION AND ORDER denying 83 MOTION for Leave to Reset 74 Scheduling Order; granting in part and denying in part 85 MOTION for Protective Order. Dispositive Motions due by 7/8/2013. 5-Day Jury Trial set for 12/2/2013 09:30 AM in Boise - Courtroom 6 before Judge Candy W. Dale. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DUSTIN PATRICK LANCASTER,
Case No. 1:09-cv-00683-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
KAT AMOS, RORY O’CONNOR, and
KLINT STANDER,
Defendants.

Pending before the Court are Plaintiff’s Motion for Leave to Reset Scheduling
Order and to Amend Complaint (Motion to Amend) (Dkt. 83) and Defendant Kat Amos’s
Motion for Protective Order (Dkt. 85.) All parties have consented to proceed before a
United States Magistrate Judge. (Dkt. 73.) Having fully reviewed the record and the
materials submitted by the parties, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
delay, and because the Court conclusively finds that the decisional process would not be
significantly aided by oral argument, these two motions will be decided on the record
before the Court. Dist. Idaho L. Rule 7.1(d)(1).

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
1. Alleged Facts
At the time of the facts alleged in this case, Plaintiff was an inmate in the custody
of the Idaho Department of Correction (IDOC). On April 12, 2009, Plaintiff injured his
lower left arm while playing basketball at the North Idaho Correctional Institution (NICI).
(Dkt. 53, p.2.) The next day, Plaintiff had elbow surgery to repair his injured arm. (Id.)
On May 12, 2009, Plaintiff was transferred from NICI to the Idaho State Correctional
Institution (ISCI). (Id., p.3.) Plaintiff alleges that, while he was housed at ISCI, he was
examined twice by Physician Assistant Michael Takagi who referred Plaintiff to physical
therapy and noted decreased range of motion in Plaintiff’s arm. (Id., pp.3-4.) In addition,
on May 22, 2009, Plaintiff’s surgeon sent a letter to Defendant Kat Amos, whose job as a
Corizon, Inc. scheduler was to schedule prisoners' medical appointments and
consultations, recommending that Plaintiff have a follow-up appointment with an
orthopedic surgeon and that Plaintiff begin physical therapy. Plaintiff received no
physical therapy while housed at ISCI. (Id.)
On June 18, 2009, Plaintiff was transferred to the Idaho Correctional Center (ICC).
Physician Assistant Rory O’Connor examined Plaintiff on July 6, 2009, and noted that
Plaintiff’s left arm had flexion contracture due to a delay in physical therapy. (Dkt. 18,
p.48.) X-rays of Plaintiff’s arm were taken August 6, 2009 and August 24, 2009. (Dkt. 53,
p.5.) Defendant Dr. Stander examined Plaintiff on September 11, 2009, noted his frozen
left elbow joint, and recommended an orthopedic consultation. (Id.) An orthopedic
MEMORANDUM DECISION AND ORDER - 2

specialist, Dr. Webb, examined Plaintiff on October 7, 2009, and noted that beginning
physical therapy at that point in time would not help Plaintiff’s “extremely severe”
arthrofibrosis of the left elbow; rather, additional surgery would be needed to repair
Plaintiff’s elbow. (Id.)
Defendant Stander examined Plaintiff again on October 15, 2009, and November
17, 2009. Defendant Stander’s notes indicate Plaintiff wanted to proceed with Dr. Webb’s
recommended surgery, but, when Dr. Stander contacted Dr. Webb, Dr. Webb
recommended obtaining a second opinion from a hand specialist. (Id., pp.5-6.) On
February 21, 2010, Plaintiff was seen by Dr. Lamey, a hand specialist, who recommended
a CT scan be taken to develop a treatment plan. (Id.) After receiving the results of the CT
scan, Dr. Lamey issued a final recommendation on April 21, 2010, stating that Plaintiff
would not benefit from physical therapy but needed surgery to repair his elbow, and
recommending that such surgery be performed when Plaintiff was no longer incarcerated
to ensure adequate postoperative management and therapy. (Id.)
2. Procedural Background
Plaintiff filed his original lawsuit pro se in December 2009 regarding the medical
care he received (or lack thereof) after undergoing elbow surgery while in the custody of
IDOC. (Dkt. 3.) In June 2010, the Court conducted an initial review of Plaintiff's claims
and permitted Plaintiff to proceed with his Eighth Amendment claims against Defendants
Amos, O'Connor, and Stander. (Dkt. 8.) The Court dismissed all claims against
Defendants Reinke and Valdez, because Plaintiff failed to allege facts showing that either
MEMORANDUM DECISION AND ORDER - 3

of these Defendants was deliberately indifferent to, or even aware of, Plaintiff’s medical
condition. (Id., p.4.) Less than two weeks later, counsel for Defendant Stander filed a
notice of appearance (Dkt. 10), and on November 9, 2010, Defendant Stander filed a
Motion for Summary Judgment. (Dkt. 15.)
On June 20, 2011, the Court denied Defendant Stander’s Motion for Summary
Judgment and ordered the Clerk of Court to issue summonses to the United States
Marshal Service to effect service upon Defendants O’Connor and Amos. (Dkt. 35.)
Defendant O'Connor was served in June 2011 (Dkt. 38), but Plaintiff had a difficult time
obtaining the correct address for Defendant Amos; she eventually was served in January
2012. (Dkt. 64.)
Because of the ongoing delays in serving all the Defendants, pretrial deadlines in
this action (see Dkt. 42) have been amended two different times. (See Dkts. 46, 74).
Counsel for Plaintiff appeared in this action on September 27, 2011 (Dkt. 43), and, soon
after, the parties stipulated to a proposed amended scheduling order, which the Court
granted on October 17, 2011. (Dkt. 46.) In that Amended Scheduling Order, the parties
were to join additional parties or amend their pleadings no later than October 30, 2011.1
(Id., p.1.) Plaintiff next filed a Motion to File First Amended Complaint on October 29,
2011, seeking to modify Plaintiff’s original pro se pleading into a more traditional format,
to “streamline claims and parties” in compliance with the June 20, 2011 Memorandum
1

In the Memorandum in Support of Motion to Modify Scheduling Order Filed July 25, 2011,
Plaintiff’s counsel asserted that he “has identified additional parties that may be added to the action and
[counsel] needs additional time to evaluate claims and locate potential parties.” (Dkt. 44-1, p.2.)
MEMORANDUM DECISION AND ORDER - 4

Decision and Order (Dkt. 35), and to add punitive damages. (Dkt. 47, pp.1-2.) No new
parties or claims were added. The Court granted Plaintiff’s Motion to Amend on
November 30, 2011. (Dkt. 52.)
As mentioned above, once Defendant Amos was served in this action on January
19, 2012 (see Dkt. 64), her counsel served her initial disclosures upon Plaintiff and made
the second request to amend the pretrial deadlines by moving to vacate and reset certain
pretrial deadlines.2 (Dkts. 67, 70.) Plaintiff opposed Defendant Amos’s Motion to Vacate,
and argued that "[g]ood cause does not exist to delay this case to the extent requested by
Defendant Amos." (Dkt. 71, p.4.) Plaintiff further contended that he "had already
disclosed [his] expert witnesses in accordance with the Court’s scheduling order and was
prepared to litigate this case on the schedule previously set by the Court.” (Dkt. 71, p. 4.)
Meanwhile, on December 23, 2011, third party Corizon, Inc. filed a Motion to
Quash Subpoena or, in the Alternative, for a Protective Order. (Dkt. 58.) The subpoena at
issue had commanded production of various documents, including Plaintiff’s medical
records, Defendant Amos’ employment records, complaints and practices regarding
surgery and physical therapy, and various Corizon policies and procedures.
On June 13, 2012, the Court: (1) denied in part Corizon’s Motion to Quash and
ordered that certain records and policies, as set forth in the Order, be produced to Plaintiff
by July 13, 2012; and (2) reset the pretrial deadlines in accordance with Defendant
2

In Plaintiff's initial disclosures, he identified himself and the following individuals as having
knowledge pertinent to the care and treatment of Plaintiff: Stephanie Voorstad, LPN, Michael Takagi,
P.A., and Scott Lossman, M.D. (Dkt. 70, pp.2-3.)
MEMORANDUM DECISION AND ORDER - 5

Amos’ Motion to Vacate. (Dkt. 74.) The pertinent deadlines were reset as follows:
Disclosure of relevant information and documents - June 29, 2012;
Completion of discovery (including lay depositions and requests for
subpoenas) except expert discovery - August 24, 2012;
Plaintiff's expert disclosures - September 28, 2012;
Defendants' expert disclosures - October 26, 2012; and
Expert depositions - November 9, 2012.
(Id., pp. 11-12.) On July 17 and 24, 2012, Corizon's attorneys provided Plaintiff's counsel,
under cover letter, the requested records. (Dkts. 87-2, 88.) The July 17, 2012 letter
disclosed, in part, a description of the off-site scheduler's responsibilities and duties, and
the following information about physical therapy or range of motion activities:
Physical therapy is a treatment that must be ordered by the provider and
approved through the utilization management process which requires
approval by the regional medical director. If physical therapy was approved
in 2009, the offender would have gone off-site to see a therapist since it was
not offered at ISCI at that time. If the request was not approved it would be
because there are alternative treatment methods that are equally effective or
the requested care is not medically necessary. Please see COR 279-80, 28486 (attached to the letter).
(Dkt. 88, p.3.) After receiving these records, Plaintiff did not seek to depose, or serve any
discovery upon, Defendant Amos. (Dkt. 86, p.4.)
On October 26, 2012, the deadline for expert disclosures, Defendant Amos
provided an expert disclosure to Plaintiff's counsel and "out of an abundance of caution"
identified herself as a potential expert, as well as Tom Dolan, the Regional Director for
Corizon. (Dkts. 86, p.4.; 83-12, pp.2-3.) Defendant Amos' proposed expert testimony is
described as follows:
Ms. Amos is a defendant in this matter and is expected to testify as a fact
MEMORANDUM DECISION AND ORDER - 6

witness regarding her role and duties as a scheduler for Correctional
Medical Services, Inc. (n/k/a Corizon, Inc.), including the extent to which
plaintiff alleges she was involved in the scheduling of any physical therapy.
Her testimony will be based upon her education, training and experience.
Ms. Amos would be expected to testify that her duties as a scheduler were
limited. Ms. Amos would be expected to testify that a scheduler may not
diagnose or treat inmates and schedulers cannot otherwise order requests for
offsite or onsite consultations. She would be expected to testify that she
could only schedule offsite or onsite consultations after a consultation
request was signed by the Regional Medical Director. She would be
expected to testify that she did not receive any consultation requests for
physical therapy that were signed by the Regional Medical Director and that
she therefore would have had no authority to schedule physical therapy for
the plaintiff. To the extent she had any involvement in issues related to this
case, she would be expected to testify that her actions were appropriate and
that she did not act with deliberate indifference to any of the plaintiff's
medical needs.
(Dkt. 83-12, p.2.)
On November 1, 2012, eight days in advance of the expert deposition deadline,
Plaintiff's counsel served a Notice of Deposition upon Defendant Amos. (Dkt. 98-2.) On
November 8, 2012, Defendant Amos filed a Motion for Protective Order to prohibit
Plaintiff from conducting her deposition, or in the alternative, commanding that the
deposition be conducted in Dickinson, North Dakota, where Defendant Amos currently
resides. (Dkt. 85.) Defendants Stander and O'Connor filed a Joinder in support of
Defendant Amos' Motion for Protective Order. (Dkt. 90.) Plaintiff, however, contends
that Defendant Amos' Motion for Protective Order does not meet any of the factors
establishing "good cause" for protection under Federal Rule of Civil Procedure 26(c).
(Dkt. 98.)
On November 2, 2012, Plaintiff filed the instant Motion to Amend wherein he
MEMORANDUM DECISION AND ORDER - 7

seeks to: (1) amend the First Amended Complaint to add seven new defendants to this
action as well as several new policy-based claims; and (2) amend the existing Scheduling
Order to obtain additional discovery in support of the new claims and parties he wishes to
add to this lawsuit. (Dkt. 83.) Defendant Amos filed her response to Plaintiff's Motion to
Amend and contends that good cause does not exist to permit amendment of the
complaint, and that Plaintiff's proposed amendment would be futile. (Dkt. 93.) Likewise,
Defendants Stander and O'Connor argue that Plaintiff's Motion to Amend is futile, would
result in undue delay and prejudice, and was filed in bad faith. (Dkt. 95.)
DISCUSSION
1.

Plaintiff's Motion For Leave to Reset Scheduling Order and to Amend
Complaint (Dkt. 83)
As set forth above, Plaintiff's Motion to Amend seeks to amend the First Amended

Complaint to add seven new defendants to this action and several new policy-based
claims, as well as amend the existing Scheduling Order to obtain additional discovery in
support of the new claims and parties he wishes to add to this lawsuit. (Dkt. 83.) Also as
noted above, the amendment of pleadings deadline was one year earlier, on October 30,
2011.
Generally, attempts to amend a complaint before a scheduling order's deadline to
do so are addressed under Federal Rule of Civil Procedure 15. But since Plaintiff is
seeking to amend the First Amended Complaint after the deadline specified in the Court's
Amended Scheduling Order (see Dkt. 46), Federal Rule of Civil Procedure 16's good-

MEMORANDUM DECISION AND ORDER - 8

cause standard is considered first.3 See Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 607-08 (9th Cir. 1992) ("Once the district court ha[s] filed a pretrial scheduling order
pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amended
pleadings[,] that rule's standards controlled."). "Unlike Rule 15(a)'s liberal amendment
policy which focuses on the bad faith of the party seeking to interpose an amendment and
the prejudice to the opposing party, Rule 16(b)'s 'good cause' standard primarily considers
the diligence of the party seeking the amendment. The district court may modify the
pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking
the extension.'" Id. at 609 (quoting Fed. R. Civ. P. 16 advisory committee's notes (1983
amendment)). The inquiry ends, however, if the party seeking the amendment has not
shown diligence. Id.; AZ Holding, L.L.C. v. Frederick, 2009 WL 3063314 *3 (D. Ariz.
2009). Once good cause is established under Rule 16(b)(4), the moving party must also
demonstrate that amendment also would be proper under Federal Rule 15. AZ Holding,
2009 WL 3063314 *3.
Good cause may be established by the moving party showing:
(1) that [it] was diligent in assisting the Court in creating a workable Rule
16 order ...; (2) that [its] noncompliance with a Rule 16 deadline occurred
or will occur, notwithstanding [it]s diligent efforts to comply, because of
the development of matters which could not have been reasonably foreseen
or anticipated at the time of the Rule 16 scheduling conference...; and (3)
that [it] was diligent in seeking amendment of the Rule 16 order, once it
became apparent that it could not comply with the order.

3

Specifically, Rule 16(b)(4) provides that "[a] schedule may be modified only for good cause and
with the judge's consent." Fed. R. Civ. P. (16(b)(4).
MEMORANDUM DECISION AND ORDER - 9

Morse v. SEG U.S. 95, LLC, 2011 WL 781254 *2 n.7 (D. Idaho 2011) (citing Jackson v.
Laureate, Inc., 186 F.R.D. 605, 608 (N.D. Cal. 1999)).
Here, Plaintiff contends that he was diligent in the "prosecution of his related
claims" but he "was hindered by [Defendant] Amos and [third party] Corizon's unforeseen
dilatory conduct." (Dkt. 83-2, p.6.) In particular, Plaintiff argues that: (1) third party
Corizon's effort to quash the subpoena Plaintiff served upon it in December 2011, which
subpoena included a request for production of Defendant Amos’ employment records,
complaints and practices regarding surgery and physical therapy, and various Corizon
policies and procedures; and (2) Defendant Amos' last minute "expert" disclosure on
October 26, 2012, explaining how she was unable to schedule offsite consultations for
physical therapy without a consultation request signed by the Regional Medical Director,
were the reasons Plaintiff was "unable to comply with the October 30, 2011 deadline to
amend pleadings and join parties because [Plaintiff] did not have enough time to
investigate the culpability of additional parties prior to the deadline." (Id., pp.6-9.)
Plaintiff further contends that Defendant Amos' "expert" witness disclosures should have
been part of her Rule 26 initial disclosures and that, by failing to do so, Plaintiff was
denied the ability "to discover information which would have supported naming
additional parties and obtaining relevant Corizon policies." (Id., p.8.)
Plaintiff's arguments are belied by other salient aspects of the procedural history in
this case. As soon as Plaintiff retained counsel in September 2011, Plaintiff's counsel filed
a motion to modify the existing Scheduling Order, and acknowledged that it "has
MEMORANDUM DECISION AND ORDER - 10

identified additional parties that may be added to the action and ... needs additional time
to evaluate claims and locate potential parties." (Dkt. 44-1, p.2.) Plaintiff's counsel then
proposed the deadline of October 30, 2011, for joinder of parties or amendment of
pleadings (see Dkt. 44), which the Court approved and set in the Amended Scheduling
Order. (See Dkt. 46.) However, when Plaintiff timely filed a Motion to File First
Amended Complaint, he did not include any new claims or parties, nor did he indicate
that he needed more time to do so, or that Defendants were not cooperating or otherwise
hindering his ability to do so.
On November 15, 2011, Defendants Stander and O'Connor made their Rule 26
initial disclosures to Plaintiff and disclosed Acel Thacker and Michael Takagi as
individuals likely to have discoverable information. (Dkt. 95-12, pp.3-4.) Two weeks
later, Plaintiff's own initial disclosures to Defendants Stander and O'Connor also included
Acel Thacker and Michael Takagi as individuals likely to have discoverable information.
(Dkt. 95-13, pp.4,8.) Nothing in the record indicates Plaintiff ever served discovery upon,
or sought to depose, either of these individuals whom he now seeks to add as new parties
in the Proposed Second Amended Complaint and Demand for Jury Trial.
A few months later, when Defendant Amos filed a Motion to Vacate and Reset
Pre-Trial Deadlines on February 28, 2012 (Dkt. 67), Plaintiff opposed the Motion and
stated he "was prepared to litigate this case on the schedule previously set by the Court”
and that "[d]elay in this case prejudices [Plaintiff]...." (Dkt. 71, pp.4-5.) Alternatively,
Plaintiff argued that if the pretrial deadlines were extended, then the deadline to add new
MEMORANDUM DECISION AND ORDER - 11

claims or parties should be 14 days from the issuance of the Court's applicable order. The
Court did not include this proposed deadline in its order, however, and Plaintiff did not
file a motion to reconsider the issue. Plaintiff's desire to litigate the case on the Court's
previous schedule rather than move to amend the Complaint or timely serve discovery
upon Defendant Amos fails to support Plaintiff's assertion that he was diligent in the
"prosecution of his related claims." (Dkt. 83-2, p.6.)
Finally, on July 17, 2012, Plaintiff received information and documents previously
requested by subpoena from Corizon, including a job description of Defendant Amos'
position, as well as a description of "physical therapy or range of motion activities" that
summarized the approval process for obtaining off-site physical therapy. (Dkt. 88, p.3.)
Corizon provided enough information for Plaintiff to timely serve discovery upon, or
depose, Defendant Amos to glean more details, names, and other facts about her job
duties and Corizon's policies before the non-expert discovery deadline of August 24,
2012. Alternatively, Plaintiff could have timely requested an extension of time to obtain
such discovery. Once again, Plaintiff did not do so.
Instead, Plaintiff filed his Motion to Amend on November 2, 2012, only after
receiving Defendant Amos's Expert Witness Disclosure. In that disclosure, Defendant
Amos states she will provide "expert" testimony about her role as a Corizon scheduler
and what approval requests she needed before she could schedule physical therapy for the
Plaintiff. (Dkt. 83-12, p.2.) Defendant Amos also listed Tom Dolan, Regional Director for
Corizon, as another expert witness who would testify as to Defendant Amos' scope and
MEMORANDUM DECISION AND ORDER - 12

limitations as a Corizon scheduler. Plaintiff's argument that this disclosure should have
been part of Defendant Amos' Rule 26 initial disclosures and that her failure to do so
denied Plaintiff the ability "to discover information which would have supported naming
additional parties and obtaining relevant Corizon policies" (see Dkt. 83-2, p.8) is
contradicted by the record and without merit. In particular, Corizon's July 17, 2012
disclosure to Plaintiff contains nearly the same information about Corizon's policies and
procedures regarding physical therapy, as well as the scheduler's role in such procedure
that Defendant Amos provides in her expert witness disclosure. And prior to that
disclosure, Plaintiff already was made aware of Brent Reinke, Michael Takagi, and Acel
Thacker's knowledge of and potential involvement in this case.
Perhaps Plaintiff's latest Motion to Amend is the result of a change in litigation
strategy with the appearance of additional counsel on his behalf in September 2012.
However, until he filed the Motion to Amend, Plaintiff maintained he was ready to
litigate this case and that further delay in this case would be prejudicial to him; and, he
passed up several opportunities to timely amend his complaint or conduct discovery
regarding Defendant Amos or any of the other individuals known to Plaintiff through
initial disclosures or his own experience while housed at ISCI and ICC. Regardless of the
reason for Plaintiff's belated Motion to Amend, over three years have passed since this
action commenced and Plaintiff did not move to add new claims or parties until more than
one full year after the deadline for doing so had passed. Plaintiff appears to be "flailing
about, but [his] opponents should not have to bear the brunt of that flailing." Janicki
MEMORANDUM DECISION AND ORDER - 13

Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994).
Based on the foregoing, the Court finds that Plaintiff lacked diligence in creating a
workable scheduling order (having had at least two chances to do so); further, Plaintiff
has failed to support his assertion that matters developed "which could not have been
reasonably foreseen or anticipated" at the time the pretrial deadlines most recently were
reset on June 13, 2012. Accordingly, the Court will deny Plaintiff's belated Motion to
Amend for failing to demonstrate good cause pursuant to Rule 16(b)(4).4
2.

Defendant Kat Amos’s Motion for Protective Order (Dkt. 85)
After Defendant Amos provided Plaintiff her expert witness disclosure, Plaintiff

responded with a Notice of Deposition of Katherine Amos. (See Dkt. 98-2.) Defendant
Amos then filed a Motion for Protective Order to prohibit Plaintiff from conducting her
deposition altogether, or in the alternative requesting the Court to order that the
deposition be conducted in Dickinson, North Dakota where Defendant Amos currently
resides.
Defendant Amos argues that she "identified her opinions in the expert disclosure,
not because they are Rule 702 expert opinions but disclosed them under the belief that
they fall under Rule 701." (Dkt. 86, p.7.) She further contends that her opinions "were
simply disclosed out of an abundance of caution, to the extent a scheduler's job duties and
limitations somehow fell under the province of Rule 702." (Id.) Finally, if the Court

4

Because Plaintiff failed to establish good cause under Rule 16(b)(4), the Court need not address
whether the Motion to Amend satisfies the requirements of Rule 15.
MEMORANDUM DECISION AND ORDER - 14

allows Defendant Amos to be deposed, Defendant Amos argues that it should take place
in Dickinson, North Dakota to spare her the "undue burden or expense" of having to
travel to Idaho for the deposition. (Id., p.8.)
Plaintiff contends that Defendant Amos' Motion for Protective Order does not
meet any of the factors establishing "good cause" for protection under Federal Rule of
Civil Procedure 26(c). In addition, Plaintiff argues that when Defendant Amos designated
herself as an "expert" and disclosed her anticipated "expert" testimony, she "quite simply
ma[de] herself available for deposition within the time scheduled for 'expert' depositions,
on or before November 9, 2012." (Dkt. 98, p.2.) Plaintiff further disputes Defendant
Amos' contention that because her testimony actually qualifies as opinion testimony by
lay witnesses under Federal Rule of Evidence 701 instead of testimony by expert
witnesses under Federal Rule of Evidence 702, she should not be deposed as an expert
witness. Defendant Amos identified herself as an expert -- and whether or not she is later
qualified as an expert is not relevant to Plaintiff's ability to depose her as a potential
testifying expert. (Id. p.3.) Finally, Plaintiff believes that this case "warrants a special
exception" for Defendant Amos to be deposed in Boise, Idaho, because "experts have no
special protection as to the location of their depositions" and Boise is where "the
foundation for her testimony arises." (Id. pp.3-4.)
Federal Rule of Civil Procedure 26(c) permits a party to move for a protective
order regarding discovery upon certification that the movant has in good faith attempted

MEMORANDUM DECISION AND ORDER - 15

to confer with the other parties to resolve the dispute without court action.5 Thereafter, 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). As
to the location of the deposition in dispute, the Federal Rules of Civil Procedure do not
specify a location where depositions are to occur. However, courts presume that a
defendant's deposition will proceed at his or her place of residence, business, or
employment. Willis v. Mullins, 2006 WL 302343, *5-6 (E.D. Cal. 2006) (citing Grey v.
Continental Marketing Assocs., 315 F. Supp. 826, 832 (N.D. Ga. 1970). In addition,
Federal Rule 30(b)(4) specifies that parties can stipulate, or the court on motion may
order, that a deposition be taken by telephone or other reliable means. See Fed. R. Civ. P.
30(b)(4).
At the outset, it is unclear why Defendant Amos identified herself as an expert
witness if she unequivocally maintains that her testimony actually falls under Rule 701,
which governs the opinion testimony of lay witnesses. See Fed. R. Evid. 701. The Court
agrees with Plaintiff's contention that, when Defendant Amos voluntarily designated
herself as an expert witness and disclosed her anticipated expert opinions, she in essence
agreed to make herself available for an expert witness deposition; Defendant Amos'
rebuttal that she did so to have her lay testimony be considered expert testimony "out of
an abundance of caution" is a position the Court rejects. Defendant Amos cannot disclose
5

Defendant Amos filed a Certification that counsel for the parties met and conferred under Local
Rule 37.1 regarding Defendant Amos's Motion for Protective Order and confirmed that the parties could
not reach a resolution. (Dkt. 89.)
MEMORANDUM DECISION AND ORDER - 16

herself as an expert and then attempt to put up a "layman only" shield against a
deposition.
Defendant Amos' argument has obscured the type of witness she purports to be at
the time of trial. Accordingly, within ten (10) days of the entry of this Order, Defendant
Amos will notify Plaintiff and the Court whether she intends to provide testimony as a lay
witness or expert witness at the time of trial. If Defendant Amos withdraws herself as an
expert witness, the Court will grant Defendant Amos' Motion for Protective Order and she
will not be deposed. However, if Defendant Amos notifies the Court that she intends to
continue in this case and testify to expert opinions, the Court will deny in part the Motion
for Protective Order so that Plaintiff may depose Defendant Amos.
Additionally, the Court will grant in part the Motion for Protective Order to the
extent that the Court finds the deposition of Defendant Amos would cause undue burden
and expense upon Defendant Amos if it is held in Boise, Idaho. See Fed. R. Civ. P.
26(c)(1). This ruling accords with a prevailing presumption that a defendant's deposition
generally will proceed at his or her place of residence, business, or employment. If the
deposition goes forward, the parties shall confer and decide whether the deposition of
Defendant Amos will take place in Dickinson, North Dakota, or by telephonic or other
reliable electronic means, if she is not withdrawn as an expert witness. The deposition
must occur no later than 30 days after entry of the Court's Order.

MEMORANDUM DECISION AND ORDER - 17

ORDER
IT IS HEREBY ORDERED:
1.

Plaintiff's Motion for Leave to Reset Scheduling Order and to Amend

Complaint (Dkt. 83) is DENIED.
2.

Defendant Amos' Motion for Protective Order (Dkt. 85) is GRANTED in

part and DENIED in part consistent with the decision discussed above.
3.

In light of the Court's previous order vacating the pretrial deadlines (Dkt.

92), the dispositive motion deadline in this case is extended to July 8, 2013.
4.

In accordance with the parties' previous notifications to the Court (Dkts. 80,

81, 82), alternative dispute resolution need not be scheduled until the Court rules on
dispositive motions, if any.
5.

As to all remaining defendants and claims, a five-day jury trial is hereby set

to begin on December 2, 2013, at 9:30 a.m. in Boise, Courtroom 6 before United States
Magistrate Judge Candy W. Dale.

DATED: May 16, 2013

Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 18