Wesselmen v. Tyson Foods, Inc
ORDER granting 23 Motion for Protective Order to Exclude Plaintiff From Deposition of Tammie Swanson. Wesselmann is barred from personally attending Swanson's deposition. Signed by Magistrate Judge CJ Williams on 11/28/16. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
TYSON FOODS, INC.,
This matter is before the Court pursuant to defendant Tyson Foods, Inc.’s (Tyson)
Motion for a Protective Order to Exclude Plaintiff from Deposition of Tammie Swanson
(Expedited/Emergency Relief Requested), filed on November 22, 2016. Doc. 23. On
November 23, 2016, the Court scheduled oral argument on Tyson’s motion. Doc. 24.
On the same day, plaintiff Theodore Wesselmann (Wesselmann) filed a timely resistance
to Tyson’s motion. Doc. 25. On Monday, November 28, 2016, the Court held a hearing
on Tyson’s motion. For the reasons stated at the hearing and that follow, the Court grants
On December 8, 2015, Wesselmann filed a complaint in this Court alleging that
Tyson wrongfully terminated his employment because of a physical disability. Doc. 2.
Wesselmann apparently has a history of seizures. Doc. 23-2, at 1; Doc. 25, at 4.
On September 6, 2014, Wesselmann claims he was delivering paperwork to
Tyson’s plant nurse, Tammie Swanson (Swanson). Doc. 25, at 2. Tyson alleges that
Wesselmann came to Tyson’s Health Services Department where Swanson worked and
specifically asked to speak with her in an exam room. Doc. 23-1. Once in the exam
room, Swanson alleges Wesselmann began to display symptoms of a seizure, but then
came at her laughing, put her in a head lock, and tried to touch her chest. Doc. 23-1;
Doc. 23-5. Wesselmann claims no memory of the event. Doc. 23-3. Yet, Wesselmann
apparently later told a health care provider that he was having a seizure, felt as though
he was going to fall, and grabbed the employee health nurse. Doc. 25, at 4.
After investigating the incident, Tyson terminated Wesselmann’s employment.
Doc. 23-2. Wesselmann claims he did not assault Swanson and “that is the fiction
[Tyson] used to justify his termination.” Doc. 23-4, at 2. He “denies that he has ever
intentionally assaulted Tammie Swanson, nor has he ever stalked her.” Doc. 25, at 2.
Wesselmann noticed Swanson’s discovery deposition to take place on November
30, 2016, at 1:00 p.m.
Doc. 23-1, at 2.
Swanson cooperated in scheduling her
deposition, but “fears for her personal safety and does not want Wesselmann physically
present” at her deposition. Id. Tyson asked that Wesselmann honor Swanson’s wishes.
Doc. 23-4, at 1.1 Wesselmann declined, stating that “[a]s a party, he is entitled to be
present during all depositions and he will be at hers.” Doc. 23-4, at 2.
Tyson seeks a protective order, pursuant to Rule 26(c)(1)(E), to bar Wesselmann
from attending Swanson’s deposition. Doc. 23-1. Tyson argues the Court has the
authority to bar even a party from attending a deposition if in balancing “the relative
interests” it “finds the presence of a party during a deposition would cause severe distress
for the deponent . . ..” Doc. 23-1, at 3. Tyson suggests “[t]here are numerous ways
Wesselmann can actively participate in Ms. Swanson’s deposition without physically
attending, including, but not limited to, participating by telephone or taking regular
In doing so, the Court finds Tyson complied in good faith with Fed. R. Civ. P. 37 and the
Court’s Local Rules by attempting to consult with opposing counsel to resolve the dispute before
filing the instant motion.
breaks to confer with his counsel regarding the deposition.” Id. Tyson cites legal
authority in support of its argument.
Wesselmann resists Tyson’s motion. Doc. 25. In his resistance, Wesselmann
argues that he suffers from seizures and describes some of the effects on him when he
experiences a seizure. Doc. 25, at 1. As previously noted, Wesselmann denies that he
ever “intentionally assaulted” Swanson and notes that “[n]o criminal complaint was filed”
in relation to the incident.
Doc. 25, at 2.
Wesselmann then claims he recently
encountered Swanson at a store, “[t]hey briefly exchanged pleasantries and continued
on” and that “Swanson didn’t appear concerned nor did she avoid him.” Id. Wesselmann
also claims he “has been contacted by the Storm Lake Police Department which advised
him that Tyson has hired police officers to attend the depositions scheduled for next
week.” Id. Finally, Wesselmann argues Tyson’s motion is “an overreaction” and
“unnecessary,” and speculates that it “is tactical.” Id. Wesselmann does not indicate
what tactical advantage he claims Tyson would gain by having him absent from the
deposition. Wesselmann cited no legal authority in support of his resistance.
Rule 26(c)(1)(E) of the Federal Rules of Civil Procedure provides that a Court
“may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including . . . designating the
persons who may be present while the discovery is conducted . . ..” FED. R. CIV. P.
26(c)(1)(E). The Court has broad discretion in determining whether to grant a motion
for a protective order. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)
(holding that the Federal Rule of Civil Procedure 26 “confers broad discretion on the
[district] court to decide when a protective order is appropriate and what degree of
protection is required.”). As a general matter, “[t]he trial court is in the best position to
weigh fairly the competing needs and interests of parties affected by discovery.” Id.
Rule 26(c) requires the party seeking a protective order show “good cause” for a
protective order. FED. R. CIV. P. 26(c)(1)(E). “‘Good cause’ within the meaning of
Rule 26(c) contemplates a ‘particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.’” Nemir v. Mitsubishi Motors Corp., 381
F.3d 540, 550 (6th Cir. 2004) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16
(1981)). See also, e.g., Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212
(8th Cir. 1973) (setting forth standard); Tolbert–Smith v. Bodman, 253 F.R.D. 2, 4 (D.C.
Cir. 2008) (setting forth meaning of “good cause” under Rule 26(c)); In re Terra Int’l,
Inc., 134 F.3d 302, 306 (5th Cir. 1998) (same). Protective orders pursuant to Rule
26(c)(1)(E) can include barring even parties from attending depositions. See, e.g.,
Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973) (holding district court had authority
to bar party from attending deposition); Tolbert-Smith, 253 F.R.D. at 4 & n.1 (same); In
re Shell Oil Co., 136 F.R.D. 615, 617 (E.D. La. 1991) (same); Kerschbaumer v. Bell,
112 F.R.D. 426, 426 (D. D.C. 1986) (noting that a court may bar parties from attending
depositions, but declining to do so where the moving party provided only an inchoate
fear that it would result in perjury).
Tyson argues that good cause exists here to exclude Wesselmann from attending
Swanson’s deposition because she is fearful of Wesselmann. Good cause can include
preventing the intimidation of a witness at a deposition. See, e.g., Monroe v. Sisters of
St. Francis Health Serv., Inc., No. 2:09 cv 411, 2010 WL 4876743, at *3 (N.D. Ind.
Nov. 23, 2010) (granting protective order barring supervisors from attending deposition
of employee who claimed he was wrongfully terminated because he suffered from
cerebral palsy and would feel intimidated by the supervisors’ presence); In re Shell Oil
Refinery, 136 F.R.D. at 617 (granting a protective order to prevent intimidation of a
witness at a deposition).
Tyson has established good cause for excluding Wesselmann from Swanson’s
deposition. The Court fully understands that Wesselmann denies intentionally attacking
Swanson and that issue may constitute the central factual dispute at trial. Nevertheless,
there appears to be no question that some encounter took place between Wesselmann and
Swanson on September 6, 2014.
Based on Swanson’s affidavit, Swanson believes
Wesselmann intentionally attacked her and has since feared him. Doc. 23-5. At the
hearing, both parties conceded the fact that Swanson has some “fear.” Wesselmann,
however, disputes the extent and/or rationality of Swanson’s fear. Whether that fear is
justified or rational, or whether Wesselmann can ultimately prove that his contact with
Swanson that day was the involuntary result of a seizure, is not relevant to whether
Swanson is actually fearful of him.
See Tolbert-Smith, 253 F.R.D. at 4 (holding
exclusion of corporate representative from deposition justified, “however irrational” the
deponent’s fear of the company’s representative may be).
In contrast, Wesselmann offers no persuasive argument for why his attendance is
necessary. In his briefing, Wesselmann simply argues that he did not intentionally attack
Swanson. As noted, that is not relevant to this issue. At the hearing, counsel for
Wesselmann stated that his attendance is necessary as it is “critical to have him there to
tell what happened” when deposing Swanson, whom plaintiff describes as the “most”
critical witness in the case. The Court finds this unpersuasive, however, as Wesselmann
claims to have no memory of the incident. See Doc. 23-3 (“I don’t have any memory of
the incident in question . . ..”).
At the hearing, Wesselmann’s counsel also emphasized that there is no real
likelihood Wesselmann would actually attack Swanson at the deposition and even if he
tried to do so or had a seizures, Tyson could have an off-duty officer provide adequate
security. This argument misses the point. Whether Wesselmann would actually attack
Swanson is not the issue. Rather, it is whether Swanson’s fear of an attack, rational or
irrational, would inhibit her ability to testify. Moreover, whether Tyson has hired police
officers to be present at depositions is irrelevant. A party ought not to be required to
hire law enforcement officers to be present at a deposition to ensure the safety, or the
sense of security, to a deponent. Rather, a protective order is the appropriate remedy.
Wesselmann does, however, have a vested interest in effectively deposing
Swanson. The Court finds this interest can be adequately advanced without him being
physically present at Swanson’s deposition. For example, Wesselmann’s counsel can
confer at length with Wesselmann before the deposition to obtain all of the information
necessary to effectively question Swanson.
See Tolbert-Smith, 253 F.R.D. at 4
(“[D]efense counsel can obtain information about those incidents [from the supervisors]
before the deposition and review with them the relevant documents at the same time.”).
Wesselmann’s counsel may consult with Wesselmann outside the deposition room. Id.,
at 4-5; see also In re Shell Oil Refinery, 136 F.R.D. at 617. Should Wesselmann seek
to exercise this option, the Court will permit ten minute breaks every hour, which time
shall not count against the seven-hour limitation set forth in FED. R. CIV. P. 30(d).
Finally, as Tyson has suggested, Wesselmann can participate by telephone should he
choose. The Court notes, at the hearing, counsel for Wesselmann indicated his intent to
have Wesselmann participate by telephone.
The Court grants Tyson’s Motion for a Protective Order to Exclude Plaintiff From
Deposition of Tammie Swanson (Doc. 23). Wesselmann is barred from personally
attending Swanson’s deposition.
IT IS SO ORDERED this 28th day of November, 2016.
United States Magistrate Judge
Northern District of Iowa
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?