Gauen v. Board of Education Highland Community Unit School District No 5

Filing 23

ORDER REGARDING 22 Discovery Dispute Conference. Defendant's Motion for Protective Order is GRANTED in part and DENIED in part. Plaintiff may proceed with the Fed. R. Civ. P. 30(b)(6) deposition but must refrain from framing questions as contention interrogatories. Signed by Magistrate Judge Reona J. Daly on 1/30/17. (dam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

KAREN GAUEN,
Plaintiff,
vs.
BOARD OF EDUCATION HIGHLAND
COMMUNITY UNIT SCHOOL
DISTRICT NO. 5,
Defendant.

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Case No. 3:16 CV 207 DRH/RJD

MEMORANDUM AND ORDER
DALY, Magistrate Judge:
This matter comes before the Court on the discovery dispute conference held on January
24, 2017. (Doc. 22.) The parties discussed the scope of the deposition of Defendant’s corporate
representative.

On February 26, 2016, Plaintiff commenced this action, alleging gender

discrimination in violation of Title VII of the Civil Rights Act, violation of the Equal Pay Act,
and violation of the Illinois Pay Act of 2003. (Doc. 1.) On December 1, 2016, Plaintiff provided
Defendants with a Fed. R. Civ. P. 30(b)(6) notice for a corporate representative deposition and
further informed Defendants regarding the topics of the testimony sought. On December 22,
2016, Defendant objected to the topics on several grounds. Defendant requested a discovery
dispute conference to request a protective order, and Plaintiff requested sanctions for failing to
produce the witness at the deposition, scheduled for January 19, 2017. On January 24, 2017, the
Court held a discovery dispute conference. The arguments focused on Defendant’s objections
that Plaintiff sought duplicative or cumulative testimony and that Plaintiff sought testimony
concerning attorney work product and defense strategy.

“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).
Additionally, “the court must limit the frequency or extent of discovery otherwise allowed by
these rules or by local rule if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other source that is more convenient,
less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or (iii) the proposed discovery is outside the
scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). “The party seeking a protective
order has the burden to show good cause for it.” Felling v. Knight, 211 F.R.D. 552, 554 (S.D.
Ind. 2003). “Whether to enter a protective order is within the sound discretion of the court.” Id.
Defendant objects that the proposed topics are unreasonably cumulative and duplicative
of the previously taken depositions of the superintendent, assistant superintendent, and business
manager and the documents produced to date. Plaintiff responds that testimony has differed
between deponents and from pleadings and that the deponents’ testimony indicates a lack of
knowledge or memory regarding certain topics.

Plaintiff further responds that a corporate

representative deposition is necessary to require a deponent to gather information in preparation
for the deposition and to bind Defendant to a single set of facts.
“A corporation has a duty under Rule 30(b)(6) to provide a witness who is
knowledgeable in order to provide binding answers on behalf of the corporation.” Great Am.
Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D. Nev. 2008). “Under Rule 30(b)(6)
an entity has a duty to prepare its deponent to adequately testify not only on matters known by
the deponent, but also on subjects that the entity should reasonably know.” Integra Bank Corp.
v. Fid. & Deposit Co. of Maryland, 2014 WL 109105, at *2 (S.D. Ind. 2014). The Court has not

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reviewed the transcripts of the prior depositions, but Defendant has thus far not agreed to bind
itself to the superintendents’ deposition testimony and does not dispute that the deponents
confessed a lack of knowledge or memory regarding certain topics. At the conference, the
parties noted discussions about narrowing the scope of the deposition by agreeing to bind
Defendant to the superintendent’s testimony at least in part, and the Court encourages the parties
to do so. However, at this time, the Court concludes that the corporate representative deposition
would not be unreasonably cumulative or duplicative.
Defendant objects that Plaintiff seeks testimony concerning attorney work product and
defense strategy. For example, Plaintiff has requested testimony regarding the “[f]actual basis
for Defendant’s denial of Paragraph 10, 17, 19, 24, 25, 29, 38-40, 43, 50, and 54) and “[f]actual
Basis underpinning Defendant’s First Affirmative defense.” “Courts have split [on] whether to
allow parties to use 30(b)(6) depositions to explore facts underlying legal claims and theories.”
Milwaukee Elec. Tool Corp. v. Chervon N. Am., Inc., 2015 WL 4393896, at *4 (E.D. Wis. 2015)
(collecting cases).
The Court recognizes that the topics as written may encompass legal strategy and are
fairly construable as a substitute for contention interrogatories. To the extent Plaintiff seeks the
equivalent of contention interrogatories, the Court agrees with courts who have held that
“contention interrogatories are a better discovery vehicle for that kind of information than a Rule
30(b)(6) deposition.” See Clauss Constr. v. UChicago Argonne LLC, 2015 WL 191138, at *4
(N.D. Ill. 2015). However, the topics could also be construed as merely setting forth the fact
allegations as topics for deposition.

Upon review of the pleadings, the cited complaint

allegations are fact allegations, and the affirmative defense includes fact allegations, stating,
“Specifically, it is the District’s practice to determine and establish administrator salaries based

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upon, among other things, a candidate’s prior administrative experience and seniority in the
position.”
Accordingly, Defendant’s request for a protective order is granted in part and denied in
part. Plaintiff may depose the corporate representative regarding the substance of the factual
allegations set forth in the pleadings but cannot merely ask the corporate representative what
facts support Defendant’s pleadings. Stated otherwise, Plaintiff should refrain from framing
questions as contention interrogatories.

For instance, Plaintiff may ask questions about

Defendant’s methodology in establishing administrative salaries but should not ask for a
recitation of the factual bases for asserting the First Affirmative Defense or denying related
allegations in the complaint.
Defendant further objects that the topics are not specific and reasonably limited in scope
and time. Neither the parties’ filings nor the discovery dispute conference focused on these
objections. Upon review of the relevant topics, the Court perceives no unreasonable lack of
specificity or inappropriately broad requests and – unless additional information is provided –
cannot find good cause for a protective order with respect to these objections. The Court also
notes Defendant’s proposed stipulation regarding Topics 7 and 8 and encourages the parties to
engage in further discussions to further narrow the scope of the deposition.
Plaintiff requests that the Court sanction Defendant for failing to appear at the Rule
30(b)(6), including costs for the court reporter and in briefing this discovery dispute. The Court
agrees that the better practice is to obtain a protective order or a stay pending a protective order
before the date of the deposition. See Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269
(9th Cir. 1964); Cima v. WellPoint Health Networks, Inc., 2008 WL 746916, at *4 (S.D. Ill.
2008). However, the Court finds sanctions unwarranted at this time, considering that Defendant

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moved for a protective order before the date of the deposition and Defendant’s failure to produce
the witness is an isolated incident. See Fed. R. Civ. P. 37(d)(2) (a failure to appear at a
deposition “is not excused on the ground that the discovery sought was objectionable, unless the
party failing to act has a pending motion for a protective order.”)
CONCLUSION
Based on the foregoing, Defendant’s Motion for a Protective Order is GRANTED in part
and DENIED in part. Plaintiff may proceed with the 30(b)(6) deposition but must refrain from
framing questions as contention interrogatories.

SO ORDERED.
DATED: January 30, 2017.

s/
Reona J. Daly
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UNITED STATES MAGISTRATE JUDGE

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