Progressive Northwestern Insurance Company v. Gant

Filing 187

MEMORANDUM AND ORDER granting in part and denying in part 166 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 2/24/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PROGRESSIVE NORTHWESTERN
INSURANCE COMPANY,

)
)
)
Plaintiff/Counterclaim Defendant,
)
)
v.
)
)
GABRIEL GANT, et al.,
)
)
Defendants/Counterclaim Plaintiffs. )
____________________________________)

Case No.15-9267-JAR/KGG

ORDER ON THIRD-PARTY
MOTION FOR PROTECTIVE ORDER
Now before the Court is the Amended Motion for Protective Order filed by
third-party Kevin McMaster. (Doc. 166.) For the reasons set forth below, the
motion is GRANTED in part and DENIED in part as more fully set forth below.
BACKGROUND
This is a declaratory judgment action brought by Plaintiff Progressive
Northwestern Insurance Company (“Plaintiff” or “Progressive”). Plaintiff seeks a
finding that its handling of an underlying claim and lawsuit, resulting from a fatal
automobile accident, “was appropriate, in good faith, and consistent with the
Progressive Policy and all duties imposed upon it by law or otherwise.” (See Doc.
1, at 5; Doc. 14, at 7.) Issues with the handling relate specifically to counsel
(Kevin McMaster) retained by Plaintiff for its insured, who were defendants in the

underlying action. McMaster is alleged to have engaged in conduct described as
“obstructionist,” “highly prejudicial,” and “to the extreme detriment” of the
defendants in the underlying lawsuit. (See generally Doc. 6-5.)
Additional facts relating to this case, as well as to the underlying lawsuit,
were summarized in the District Court’s Memorandum and Order granting
Defendants leave to answer out of time, Plaintiff’s motion to strike, and Plaintiff’s
motion to dismiss. (See Doc. 92, at 1-3.) That summary is incorporated herein by
reference.
The present motion relates to the pending deposition of McMaster. He
requests a protective order “prescribing the terms and conditions by which his
deposition shall be conducted.” (Doc. 166, at 1.) The requested terms and
conditions are enumerated as follows:
A. Barring Plaintiff from proceeding with the deposition
of McMaster until the ongoing discovery dispute between
Plaintiff and Defendant has been resolved;
B. Requiring that Plaintiff provide reasonable
compensation to McMaster for the time he is required to
respond to discovery;
C. Prohibiting deposition questions designed solely to
elicit information that is protected by the attorney-client
privilege;
D. Requiring Plaintiff and Defendant to identify all
matters of inquiry and produce any and all
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documentation on which each party intends to inquire at
the deposition at least 10 days prior to McMaster’s
deposition;
E. Prohibiting dissemination of the videotape and/or
transcript produced following McMaster’s deposition;
and
F. For such other and further relief as the Court deems
just and proper.
(Doc. 172, at 3-4.)
DISCUSSION
Federal Rule of Civil Procedure 26(c) governs protective orders and
provides, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending.... The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
***
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for
the disclosure or discovery;
***
(D) forbidding inquiry into certain matters, or
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limiting the scope of disclosure or discovery to
certain matters;
***
(F) requiring that a deposition be sealed and
opened only on court order;....
Fed.R.Civ.P. 26(c)(1).
Based on the arguments contained in the parties’ briefing, it appears that the
parties have reached a compromise as to several of the conditions sought by
McMaster.1 Defendant agrees to request A, that the deposition not occur until after
a then-pending motion to compel is resolved. That motion has since been granted
in part and denied in part by the undersigned Magistrate Judge. (Doc. 116.)
Plaintiff was given until March 16, 2017, to serve supplemental discovery
responses. As such, the Court directs the parties that the deposition not be
scheduled until after that supplemental disclosure has occurred.
The parties have also resolved request C, that deposition questions designed
solely to elicit a privileged response be prohibited. Defendant indicates that this
limitation should relate only to “the protection of privileged communications
between Mr. McMaster and the . . . Defendants [in the underlying lawsuit] . . . .”

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The Court notes that Plaintiff Progressive did not file a response to the thirdparty motion. As such, the Court finds that Plaintiff has waived any argument or
objection to the compromises discussed herein.
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(Doc. 171, at 6.) Defendant objects, however, “to the extent this request is
intended to protect any communication between Mr. McMaster and [Plaintiff].”
(Id.) Because McMaster does not address this clarification in his reply
memorandum (see Doc. 172), the Court finds that this limitation to be both
unopposed and appropriate.
The Court also finds request D – that all matters of inquiry and
documentation be provided to him 10 days prior to the deposition – to have been
resolved. While Defendant finds this to be both unnecessary and not routine, he
infers that he would accept this condition to the extent it applies only to the party
that requested the deposition, which is Plaintiff Progressive rather than Defendant
Gant. (Doc. 171, at 6.) McMaster did not address this compromise in his reply
memorandum. The Court thus infers his acquiescence.2 As such, Plaintiff is
directed to identify all matters of inquiry and produce any and all documentation
on which it intends to inquire at the deposition at least 10 days prior to McMaster’s
deposition. No such limitations are placed on Defendant, although his counsel has
agreed “to provide Mr. McMaster’s counsel with a list of topics likely to be
discussed and/or addressed at [the] deposition . . . .” (Id.) Defense counsel will

2

The same goes for Plaintiff, which did not respond to McMaster’s third-party

motion.
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not, however, be limited or restricted to matters contained in any such list.
As a result of the parties’ compromises, there remain only two requested
conditions for the Court to address – that McMaster be provided reasonable
compensation for the time he is required to respond to discovery and a prohibition
on dissemination of the videotape and/or transcript produced following
McMaster’s deposition. Each will be addressed in turn.
A.

“Reasonable Compensation” to McMaster.
McMaster relies on Fed.R.Civ.P. 26(b)(4)(E) for the proposition that he

should be paid reasonable compensation as “an expert for the time spent
responding to discovery.” (Doc. 172, at 1.) He refers the Court to the case of
Johnson v. Kraft Foods North America, No. 05-2093-JWL-DJW, 2007 WL
734956, at *3 (D. Kan. March 7, 2007) in support of his argument. The Court
finds the Johnson case to be distinguishable as the professional requesting the
compensation was a physician who had not been listed as an expert. The
Johnson court held that “‘the testimony of a treating physician is entitled to his or
her ‘reasonable fee’ because such physician's testimony will necessarily involve
scientific knowledge and observations that do not inform the testimony of a simple
‘fact’ or ‘occurrence’ witness.’” (Id. (quoting Wirtz v. Kansas Farm Bureau
Services, Inc., 355 F.Supp.2d 1190, 1211 (D.Kan.2005) (citations omitted)).
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McMaster is not being deposed in this case as an expert because of his
“specialized knowledge.” While his “specialized knowledge” may come in to play
as he is asked about – and asked to justify – his legal decisions, the fact remains
that he is being deposed as a fact witness. As argued by Defendant, McMaster’s
“relationship to this action is closer to a defendant than an expert.” (Doc. 171, at
5.) The Court finds no justification for compensating McMaster for his time
simply because he is a lawyer when other fact witnesses from other professions are
not paid in a similar manner.
B.

Dissemination of the Deposition Transcript or Video.
McMaster also requests that the deposition transcript or videotape be

prohibited from dissemination “[d]ue to the confidential nature of what could be
discussed . . . .” (Doc. 165, at 7.) He seeks “additional protection” beyond a
confidential designation via the Protective Order entered in this case from “any
potential attempt to publish his thoughts and actions while operating as counsel in
the underlying lawsuit and other lawsuits in an incomplete, unfair, or potentially
defamatory light.” (Doc. 172, at 3.)
McMaster has provided no legal precedent for the relief he is requesting.
Further, as stated by Defendant, “[t]he fact that Mr. McMaster is a practicing
attorney does not provide a basis for sealing his deposition.” (Doc. 171, at 7.)
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Defendant has already agreed that questions designed solely to elicit a privileged
response will be prohibited. (See supra.) Defendant has indicated, however, that
he “has no objection to working with counsel to determine whether select portions
of testimony should be protected.” (Doc. 171, at 7.) The Court finds that this
agreement by Defendant will provide McMaster with sufficient protection while
balancing the public interest in open courts.

IT IS THEREFORE ORDERED that the Amended Third-Party Motion
for Protective Order (Doc. 166) is GRANTED in part and DENIED in part as
more fully set forth herein.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 24th day of February, 2017.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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