Swimwear Solution, Inc. v. Orlando Bathing Suit, LLC

Filing 68

MEMORANDUM AND ORDER granting in part and denying without prejudice in part 63 Motion for Protective Order. Signed by Magistrate Judge Gerald L. Rushfelt on 6/21/2018. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Swimwear Solution, Inc.,
Plaintiff,
v.
Orlando Bathing Suit, LLC d/b/a
Everything But Water,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 17-CV-2691-JAR-GLR

MEMORANDUM AND ORDER
The Court has for consideration the Motion for a Protective Order (ECF 63). Defendant
Orlando Bathing Suit, LLC d/b/a Everything But Water asks the Court for a protective order, as
provided by Fed. R. Civ. P. 26(c)(1) and D. Kan. Rule 26.2(a), against proceeding with the
deposition of Michele Fichter on June 21, 2018. After hearing arguments from both parties, the
Court has granted the motion in part and denied it without prejudice in part.
In May, the parties by agreement set the deposition of Michele Fichter for June 21, 2018.
The notice for the deposition was filed June 8, 2018 (ECF 60). An amended notice, correcting
the date of the deposition, was filed June 14, 2018 (ECF 61). The notices require Ms. Fichter
duces tecum to produce four categories of documents:
1. All previously unproduced documents responsive to Plaintiff’s
Requests for Production of Documents
2. All previously unproduced documents identified by Orlando
Bathing Suit, d/b/a/ “Everything but Water” (“EBW”) in its
Initial Rule 26(a)(1) Disclosures, served on January 30, 2018
3. All documents necessary to supplement or substantiate
previous discovery responses, including, but not limited to,
documents substantiating EBW’s refusal to admit matters in
Defendants’ Requests for Admissions

4. All previously unproduced documents required to be disclosed
under Fed R. Civ. P. 26.1
Defendant objected to the request that Ms. Fichter produce the designated documents. It
points out that she is neither a party to this case nor a corporate representative, and therefore
under no obligation to produce them. Defendant further contends that, despite discussing the
deposition and agreeing on its date, the parties did not discuss any requirement for Ms. Fichter to
produce any documents. Defendant filed the present motion on June 19, 2018, stating it had
attempted to confer with Plaintiff (which Plaintiff does not dispute), but that the parties had been
unable to reach a solution.
Upon request and with agreement of counsel for the parties, the Court set the motion for
expedited hearing on June 20, 2018. Defendant maintained that Ms. Fichter is not a party and
should not be obligated to produce documents on behalf of Defendant. Further, Defendant was
not provided sufficient notice, as required by Fed. R. Civ. P. 34(b)(2)(A), to respond to the
request for documents. Plaintiff argued that Defendant has an ongoing obligation to produce and
supplement its production of requested documents and thus had sufficient notice and a duty to
produce them in the course of the deposition.
Neither the original notice nor the amended notice designates Ms. Fichter as a corporate
representative of Defendant. Nor does the notice describe “with reasonable particularity the
matters for examination” pursuant to Fed. R. Civ. P. 30(b)(6). The Court finds Ms. Fichter has
not been designated as a corporate representative for the purpose of the deposition and,
consequently, has no duty to produce the requested documents in response to the notice. The four
requests, moreover, are overly broad and nonspecific. Defendant’s motion is therefore granted as

1

ECF 61 at 3 (Exhibit A).

2

it relates to the production of documents. The motion is otherwise denied. The deposition of
Ms. Fichter may proceed without any duty for her to produce documents.
The motion for protective order may have asserted one or more additional issues in
opposition to the deposition, which the Court has not addressed in this order. Accordingly, the
ruling of this order is without prejudice to any such issue. If necessary, the parties may address
them with memoranda, consistent with D. Kan. Rules.
Upon oral motion of Defendant, the Court has also granted its request to stay the
deposition, because defense counsel lacks transportation to the deposition, which was set to
proceed in Florida on June 21, 2018. The Court defers any decision, if the issue arises, as to who
should be financially responsible for the need to stay the deposition.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Protective Order is granted in part and denied without prejudice in part as set forth herein.
Dated June 21, 2018, at Kansas City, Kansas.
s/Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

3