Jake's Fireworks Inc. v. Sky Thunder, LLC

Filing 64

MEMORANDUM AND ORDER granting in part and denying in part 53 Motion for Protective Order and to Quash Plaintiff's Notice of Deposition. See Order for details. Signed by Magistrate Judge Gerald L. Rushfelt on 8/17/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAKE’S FIREWORKS, INC.,
Plaintiff,
v.

Case No. 16-2475-JAR-GLR

SKY THUNDER, LLC, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion for Protective Order and to
Quash Plaintiff’s Notice of Deposition of Michael A. Kimberling (ECF 53). The motion is fully
briefed and the Court is prepared to rule. For the reasons explained below, Defendants’ motion
is granted in part and denied in part.
I.

Background
For the purpose of this motion the Court notes the following: On May 11, 2017, counsel

for Plaintiff proposed to take the deposition of Defendant Michael Kimberling in June 2017.
Counsel for Plaintiff proposed three dates in June for the deposition. He asked defense counsel
if those dates were agreeable and, if not, for a suggestion of an alternative date in June. Defense
counsel did not immediately respond. Plaintiff’s counsel sent a follow-up email on May 18,
2017, seeking a response. Defense counsel responded on May 19, noting that several discovery
issues remained unresolved as to Plaintiff’s initial disclosures and discovery responses. Defense
counsel also stated, “[i]f you’ll suggest some dates for the deposition of a Jake’s [Fireworks]

representative that would allow for the discovery and disclosures to be resolved first, we will
follow with dates that would work for Mr. Kimberling.”1
Plaintiff’s counsel did not respond to this email. He instead served Defendants on June 2,
2017 with formal notice for the deposition of Defendant Kimberling. Plaintiff scheduled the
deposition for the latest of the originally suggested dates, June 16, 2017, to proceed in Terre
Haute, Indiana. Defense counsel emailed plaintiff’s counsel on June 8, 2017, indicating they
were not available for the deposition on June 16 and asking that Plaintiff withdraw the notice so
that a mutually agreeable date could be determined. Defense counsel advised that if the notice
were not voluntarily withdrawn by 5:00 p.m. on June 9, 2017, he would seek relief from the
Court.
For several days after June 9, defense counsel called plaintiff’s counsel and sent him
several emails, all requesting that Plaintiff withdraw its notice of deposition. Plaintiff’s counsel
responded that it would withdraw its notice, if Defendant would propose alternative dates for a
rescheduled deposition. Defense counsel did not respond with any proposed dates. He did,
however, call Plaintiff’s counsel on June 13, 2017, to discuss the withdrawal of the deposition
notice. Plaintiff’s counsel responded by email that Plaintiff had addressed all issues raised.
Defendant thus filed the instant motion to seek relief from the notice of deposition. Since the
filing of Defendant’s motion, the parties have continued to discuss scheduling of Defendant
Kimberling’s deposition.

1

ECF 53-3.

2

II.

Discussion
A.

Motion for Protective Order and to Quash Notice of Deposition

Fed. R Civ. P. 30(b)(1) provides that “[a] party who wants to depose a person by oral
questions must give reasonable written notice to every other party, the notice must state the time
and place of the deposition and, if known, the deponent’s name and address.” Fed. R. Civ. P.
26(c)(1) states that a party may move for a protective order against discovery, and that a court
may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” Defendants argue a protective order is justified, because “Plaintiff’s
counsel unilaterally issued a notice setting the deposition for June 16, 2017—at a location over
400 miles away from defense counsel’s office—and without regard to either the deponent’s or
defense counsel’s availability.”2 Plaintiff responds that it was forced to formally notice the
deposition because Defendants refused to provide any dates for Defendant Kimberling’s
deposition until Plaintiff agreed to allow the deposition of one of its representatives.
The Court finds good cause to grant Defendants’ motion and to quash the notice of
deposition. Plaintiffs scheduled the deposition without first hearing from Defendants and their
counsel regarding the feasibility of the date, time, and location of the deposition, in view of their
work schedules. Indeed, defense counsel responded on June 8 that the June 16 setting for the
deposition would not work with their schedules. Furthermore, the date of the deposition set forth
in Plaintiff’s notice, June 16, 2017, has since passed. Thus, because Plaintiffs scheduled the
deposition before ascertaining further information regarding the schedule, and because as a
practical matter enforcement of the notice would be impossible, the Court finds that quashing the
notice of deposition is warranted to protect Defendants from undue burden and expense.

2

ECF 53 at 4.

3

This does not mean that Plaintiff improperly noticed the deposition. As Plaintiff
suggests, its counsel properly served notice of the deposition, within the time set forth in the
Federal Rules of Civil Procedure and District of Kansas Rules,3 based upon the lack of response
by defense counsel for scheduling the deposition. What is clear is that the parties reached an
impasse regarding their scheduling: Defendants expressed unwillingness to propose dates to
depose Defendant Kimberling, unless they could first depose a representative of Plaintiff.4 And
Plaintiff was unwilling to withdraw its “unilaterally issued” notice of deposition, unless
Defendants first suggested alternative dates for its reschedule. To move the parties beyond this
hurdle, and to protect Defendants from an undue burden that attends it, the Court grants their
motion for a protective order and to quash the notice of deposition. Following the entry of this
Order, the Court directs the parties to confer and attempt to reschedule the proposed deposition
of Defendant Kimberling at a mutually convenient date, time, and location. The Court
recognizes that counsel may still disagree as to whether the deposition of Mr. Kimberling may
proceed before Plaintiff provides some further disclosures and discovery responses. The answer
to this question is that the deposition may proceed. The briefing upon the motion does not
adequately address the duties of Plaintiff to provide additional discovery or disclosures, and the
Court declines to speculate upon it.

3

D. Kan. Rule 30.1 provides that “[t]he reasonable notice provided by Fed. R. Civ. P. 30(b)(1) for the
taking of depositions is 7 days.” Plaintiff initially contacted Defendant with proposed dates for the deposition on
May 11, 2017, and formally noticed the deposition on June, 2, 2017, 14 days before the scheduled deposition on
June 16, 2017.
4

As Plaintiff correctly notes, the Federal Rules of Civil Procedure provide that “methods of discovery may
be used in any sequence,” and “discovery by one party does not require any other party to delay its discovery.” Fed.
R. Civ. P. 26(d)(3).

4

B.

Payment of Expenses

Fed. R. Civ. P. 26(c), which governs the issuance of protective orders, provides that
“Rule 37(a)(5) applies to the award of expenses.”5 Fed. R. Civ. P. 37(a)(5) in turn states that if a
court denies discovery and issues a protective order, the court must require the party who sought
discovery and opposed the protective order, or that party’s attorney, to pay the opposing party’s
reasonable expenses, including attorney’s fees, incurred in opposing the discovery or seeking
the protective order. However, “the court must not order this payment if the motion was
substantially justified or other circumstances make an award of expenses unjust.”6
Defendants move for an award of expenses and attorney’s fees pursuant to Fed. R. Civ. P.
37(a)(5). Plaintiff responds that its opposition to the motion is substantially justified and that an
award of expenses and attorney’s fees is not warranted.7 The Court agrees. As explained above,
Plaintiff properly served a notice for the deposition of Defendant Kimberling, and thus its
opposition to the motion was justified. Although the Court finds good cause to grant the motion
to enable an appropriate schedule for Defendant Kimberling’s deposition, the Court does not find
that an award of expenses and attorney’s fees is warranted.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for
Protective Order and to Quash Plaintiff’s Notice of Deposition of Michael A. Kimberling (ECF
53) is granted in part and denied in part. Defendants’ motion is granted as it relates to

5

Fed. R. Civ. P. 26(c)(3).

6

Fed. R. Civ. P. 37(a)(5)(B).

7

Plaintiff also moves for an award of expenses and attorney’s fees in responding to the motion to for
protective order. Fed. R. Civ. P. 37(a)(5) provides a basis for an award of expenses and fees when a motion to
compel discovery is granted. Here, however, Plaintiff has not moved to compel discovery, and the Court has
granted Defendants’ motion for protective order. Thus, there is no basis for an award of expenses or attorney’s fees
to Plaintiff under Rule 37(a)(5).

5

Defendant Kimberling’s deposition. Plaintiff’s notice of deposition of Defendant Kimberling is
quashed. Defendants’ motion is denied as it relates to an award of expenses and attorney’s fees.
Dated: August 17, 2017
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

6