DOH et al v. Lake Central School Corporation et al
Filing
109
OPINION AND ORDER denying 97 Motion for Protective Order filed by the defendants; granting 99 Motion to Compel. Court AWARDS Haddad the reasonable attorneys fees and expenses incurred in defending against the Motion for Protective Order and seeking the Motion to Compel. Haddad is DIRECTED to file an affidavit setting forth his attorneys fees and expenses within fourteen days of this order. Signed by Magistrate Judge Andrew P Rodovich on 4/8/15. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
D.O.H., a minor, by OSAMA HADDAD
and HIND HADDAD, individually, and as his
parents and natural guardians,
Plaintiffs,
v.
LAKE CENTRAL SCHOOL CORPORATION,
et al.,
Defendants.
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) Cause No. 2:11-cv-430
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OPINION AND ORDER
This matter is before the court on the Motion for Protective Order [DE 97] filed by the
defendants on March 12, 2015, and the Motion to Compel Defendants to Appear for Their
Depositions and Plaintiff’s Response in Opposition to Defendants’ Motion for Protective Order
[DE 99] filed by the plaintiff, David Haddad, on March 13, 2015. For the following reasons, the
Motion for Protective Order [DE 97] is DENIED, and the Motion to Compel Defendants to
Appear for Their Depositions and Plaintiff’s Response in Opposition to Defendants’ Motion for
Protective Order [DE 99] is GRANTED.
Background
On February 3, 2015, the plaintiff, David Haddad, issued an Amended Notice of
Deposition for the defendants, Robert McDermott and Sean Begley. The Notice scheduled the
depositions at the offices of Rubino, Ruman, Crosmer & Polen located at 275 Joliet Street, Suite
330, Dyer, Indiana. The defendants requested that the depositions take place at their counsel’s
office located at 9245 Calumet Avenue, Suite 200, Munster, Indiana. Google Maps indicated
that the offices are 4.2 miles and approximately a 10 minute drive apart. See [DE 99-9].
Additionally, the Rubino office is 4.5 miles and approximately a 9 minute drive from Lake
Central High School, the defendants’ place of employment. See [DE 99-8]. Furthermore, the
Rubino office is approximately the midway point between Lake Central High School and the
defense counsel’s office.
The defendants raised their initial objection to the depositions’ location on February 4,
2015, the day after the Notice, and indicated that the depositions for the defendants would take
place at the defense counsel’s office. Since that initial objection, the parties have engaged in
multiple correspondences regarding the depositions’ location. The defendants filed their Motion
for a Protective Order three business days before the first scheduled deposition, and Haddad filed
his Motion to Compel the defendants appearances at the depositions the following day.
The defendants have stated that Haddad has not articulated any prejudice to changing the
depositions’ location. Additionally, they indicated that their counsel’s office would be a less
burdensome location than the Rubino office. Moreover, they explained that holding the
depositions at defense counsel’s office is consistent with past practices in this case, custom
within the Northern District of Indiana, and more convenient for the defendants and counsel.
Furthermore, they argued that Haddad’s counsel has not engaged in good faith discussions
because she is unwilling to negotiate or compromise.
Haddad has indicated that the defendants instructed him to reissue Notice of the
depositions to amend the location to defense counsel’s office. He responded that he would
review any precedent indicating that the defendants were entitled to select the location for
depositions he noticed but noted that the depositions would proceed as noticed without further
explanation or legal authority. Rather, Haddad stated that he was entitled to select the location
for depositions he noticed.
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Discussion
A party may move for a protective order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .” Federal Rule of Civil
Procedure 26(c)(1). The party requesting the protective order carries the burden of
demonstrating good cause and can satisfy that burden by showing an adequate reason for the
order. 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2035
(3d ed.1998); see Gregg v. Local 305 IBEW, 2009 WL 1325103, at *8 (N.D. Ind. May 13,
2009) (“The burden rests upon the objecting party to show why a particular discovery request is
improper.” (quoting Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 449–50
(N.D. Ill. 2006)) (citing McGrath v. Everest Nat’l Ins. Co., 2009 WL 1325405, at *3 (N.D. Ind.
May 13, 2009); Carlson Rests. Worldwide, Inc. v. Hammond Prof’l Cleaning Servs., 2009 WL
692224, at *5 (N.D. Ind. Mar. 12, 2009)). Specific factual demonstrations are required to
establish that a particular discovery request is improper and that good cause exists for issuing the
order. See Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003) (“To establish good cause a
party must submit ‘a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.’”) (quoting Wilson v. Olathe Bank, 184 F.R.D. 395, 397
(D. Kan. 1999)) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16, 101 S. Ct. 2193, 68 L.
Ed. 2d 693 (1981)); see Harrisonville Tel. Co. v. Ill. Commerce Comm’n, 472 F. Supp. 2d 1071,
1078 (S.D. Ill. 2006) (stating that the movant must rely on particular and specific demonstrations
of fact, rather than conclusory statements, to establish good cause).
The defendants have requested a protective order to prevent Haddad from noticing the
defendants’ depositions at the Rubino office as opposed to defense counsel’s office. They
indicated that it would be less burdensome on the defendants and more convenient for counsel
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and the defendants to hold the depositions at defense counsel’s office. Additionally, they stated
it was consistent with past practices in this case and the Northern District of Indiana to hold
depositions at defense counsel’s office. Furthermore, the defendants stated that Haddad has not
shown any prejudice he would suffer by changing the depositions’ location.
The defendants incorrectly asserted that Haddad had the burden to show why the current
deposition location was reasonable. Rather, the defendants, as the party requesting the protective
order, carry the burden to demonstrate good cause to alter the deposition location. Moreover, the
defendants must present particular and specific facts rather than conclusory statements to
establish good cause. The defendants have not met that burden as they stated that it would be
less burdensome or more convenient to alter the deposition location but did not provide specific
facts to support their conclusions. The defendants have not demonstrated how they will suffer
any undue burden or expense by travelling to the Rubino office.
The defendants argued “that a party seeking discovery must go where the desired
witnesses are normally located.” Yaskawa Elec. Corp. v. Koomorgen Corp., 201 F.R.D. 443,
444 (N.D. Ill. 2001). Additionally, they compared this case to Estate of Perry v. Wenzel, which
granted a protection order when government employees needed to travel approximately thirty
minutes one way to depositions. 2013 WL 4004226, at *2 (E.D. Wis. Aug. 5, 2013); see [DE
101-12]. However, Haddad has come to where the witnesses are normally located. He selected
a location less than five miles and approximately 10 minutes driving from defense counsel’s
office. Furthermore, the selected location is closer and approximately half the distance from the
defendants’ place of employment than defense counsel’s office. The defendants have not
demonstrated good cause to alter the depositions’ location. Therefore, the Motion for Protective
Order is DENIED.
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Haddad has requested the court to compel the defendants to sit for their noticed
depositions or to sit for depositions within seven days of this court’s ruling. A party may “obtain
discovery regarding any matter, not privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody, condition and location of any books,
documents, or other tangible things.” Rule 26(b)(1). For discovery purposes, relevancy is
construed broadly to encompass “any matter that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in the case.” Chavez v. DaimlerChrysler
Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d 253 (1978)). Even when information is not
directly related to the claims or defenses identified in the pleadings, the information still may be
relevant to the broader subject matter at hand and meet the rule’s good cause standard. Borom v.
Town of Merrillville, 2009 WL 1617085, at *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser
Prods., Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D. Ind. 2003)); see Adams v.
Target, 2001 WL 987853, at *1 (S.D. Ind. July 30, 2001) (“For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action.”); Shapo v. Engle,
2001 WL 629303, at *2 (N.D. Ill. May 25, 2001) (“Discovery is a search for the truth.”).
A party may seek an order to compel discovery when an opposing party fails to respond
to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)–(3). The burden “rests upon the objecting party to show why a particular
discovery request is improper.” Gregg v. Local 305 Ibew, 2009 WL 1325103, at *8 (N.D. Ind.
May 13, 2009) (citing Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 449–50
(N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co., 2009 WL 1325405, at *3 (N.D. Ind. May
13, 2009) (internal citations omitted); Carlson Rests. Worldwide, Inc. v. Hammond Prof’l
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Cleaning Servs., 2009 WL 692224, at *5 (N.D. Ind. March 12, 2009) (internal citations omitted).
The objecting party must show with specificity that the request is improper. Cunningham v.
Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey’s Gen.
Stores, 206 F.R.D. 253, 254 (S.D. Ind. 2002)). That burden cannot be met by “a reflexive
invocation of the same baseless, often abused litany that the requested discovery is vague,
ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence.” Cunningham, 255 F.R.D. at 478
(citing Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted). Rather, the court, under its broad discretion,
considers “the totality of the circumstances, weighing the value of material sought against the
burden of providing it, and taking into account society’s interest in furthering the truth-seeking
function in the particular case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510,
512 (N.D. Ind. 2007) (examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th
Cir. 2002)) (internal quotations and citations omitted); see Hunt v. DaVita, Inc., 680 F.3d 775,
780 (7th Cir. 2012) (explaining that the district court has broad discretion in supervising
discovery).
The defendants only have challenged the location of the noticed depositions. As
discussed above, they have not demonstrated good cause to alter the depositions’ location.
Therefore, the Motion to Compel is GRANTED. The depositions for McDermott and Begley
were scheduled for March 18 and March 20. Because the dates for those depositions have past,
Haddad has requested the court to order the defendants to appear for depositions within seven
days of this order. However, the court does not believe that provides enough time to coordinate
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the depositions. Therefore, the defendants are ORDERED to appear for depositions within
twenty-one days of this order.
“The great operative principle of Rule 37(a)(5) is that the loser pays.” Charles Alan
Wright et al., 8B Federal Practice and Procedure Civil § 2288 at 787 (3d ed. 2014). “Fee
shifting when the judge must rule on discovery disputes encourages their voluntary resolution
and curtails the ability of litigants to use legal processes to heap detriments on adversaries (or
third parties) without regard to the merits of the claims.” Rickels v. City of South Bend, Ind., 33
F.3d 785, 787 (7th Cir. 1994). Any loser may avoid payment by showing that his position was
substantially justified. Rickels, 33 F.3d at 787. The failure to disclose is sanctionable and
properly remedied by an order compelling discovery. Rules 37(a)(3)(B), (a)(4), (a)(5); Lucas v.
GC Services, L.P., 226 F.R.D. 328, 329–30 (N.D. Ind. 2004). Rule 37(a)(5)(A) states that the
court shall require sanctions based upon the costs of seeking a motion to compel. See Stookey v.
Teller Training Distribs., Inc., 9 F.3d 631, 637 (7th Cir. 1993) (citing the prior section number)
(“Rule 37(a)(4) clearly allows for an award of the expenses incurred in obtaining an order to
compel, including attorney’s fees.”). Sanctions under Rule 37(a)(5) are appropriate unless the
movant filed the motion without attempting in good faith to obtain the discovery without court
action, the party’s nondisclosure was “substantially justified,” or other circumstances make an
expense award unjust. Rule 37(a)(5)(A). In addition, Rule 37(c)(1) states that a party who fails
to disclose, provides false or misleading disclosure, or refuses to admit information required by
Rule 26(a) without “substantial justification” may be sanctioned unless such failure was
“harmless.” Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004); Salgado v.
Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir.1998); Engel v. Town of Roseland, 2007 WL
2903196, at *6 (N.D. Ind. Oct. 10, 2007). Thus, Rule 37(a) is a fee-shifting rule, and the loser
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must pay unless it demonstrates that the movant filed the motion before attempting to obtain the
discovery in good faith without court action, its position was “substantially justified,” or other
circumstances make an expense award unjust.
The defendants have not demonstrated that their position opposing the depositions’
location was substantially justified. They did not present good cause or any specific facts
demonstrating why the current location posed an undue burden or expense. Furthermore, their
position caused Haddad to respond to their Motion for Protective Order and seek a court order
compelling their attendance. Therefore, their position was not harmless. Additionally, the
parties engaged in multiple correspondences to resolve this issue, and Haddad offered to alter the
deposition location if the defendants presented precedent or further explanation compelling a
change in location. Therefore, Haddad attempted to resolve the dispute in good faith before
requiring court intervention. Thus, the court AWARDS Haddad the reasonable attorney’s fees
and expenses incurred in defending against the Motion for Protective Order [DE 97] and seeking
the Motion to Compel [DE 99]. Haddad is DIRECTED to file an affidavit setting forth his
attorney’s fees and expenses within fourteen days of this order.
Based on the foregoing reasons, the Motion for Protective Order [DE 97] filed by the
defendants is DENIED, and the Motion to Compel Defendants to Appear for Their Depositions
and Plaintiff’s Response in Opposition to Defendants’ Motion for Protective Order is
GRANTED.
ENTERED this 8th day of April, 2015.
/s/ Andrew P. Rodovich
United States Magistrate Judge
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