Holick v. Burkhart

Filing 75

MEMORANDUM AND ORDER denying 36 Sealed Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 8/4/17. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK HOLICK,

)
)
Plaintiff,
)
)
v.
)
)
JULIE A. BURKHART,
)
)
Defendant.
)
______________________________ )

Case No. 16-1188-JTM-KGG

MEMORANDUM & ORDER ON
MOTION FOR PROTECTIVE ORDER
Currently pending before the Court is Defendant’s Motion for Protective
Order, which would prohibit Plaintiff from deposing Defendant in this case. For
the reasons stated herein, Defendant’s motion is DENIED.
BACKGROUND
In 2013, Defendant received a temporary order of protection from stalking
against Plaintiff in Kansas state court (state court action). It is uncontroverted that
Plaintiff’s attorney deposed Defendant in the state court action. Plaintiff brings the
present matter alleging malicious prosecution, abuse of process, and defamation
relating to the allegations levied against him in the state court action. (See
generally, Doc. 1.)

DISCUSSION
Fed.R.Civ.P. 26(c) provides that a court, upon a showing of good cause,
“may make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” A party
seeking a protective order bears the burden of establishing good cause for the
order. Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 543 (D. Kan. 2003).
“To establish good cause, [the] party must submit ‘a particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory
statements.’” Day v. Sebelius, 227 F.R.D. 668, 677 (D. Kan. 2005) (citation
omitted).
Defendant seeks an order prohibiting Plaintiff from deposing her in this
case, arguing that
[b]ecause Defendant was exhaustively deposed in the
State Action about the facts potentially relevant to
[Plaintiff’s] claims, a second deposition of [Defendant]
would serve no purpose other than to annoy and harass
her. A protective order should be entered preventing
[Plaintiff] from re-deposing [Defendant].
(Doc. 36, sealed, at 8.) Defendant cites no applicable case law to support this
request.1 The few cases cited by Defendant involve instances where a party is

1

Defendant also relies on Fed.R.Civ.P. 26(b)(2)(C) and (c)(1), which allow the
Court to enter a protective order altering discovery that is “unreasonably cumulative or
duplicative.”

attempting to depose someone a second time in the same case. See e.g., TBG Inc.
v. Bendis, 89-2423-EEO, 1993 WL 831305, at *1 (D. Kan. Feb. 13, 1993); Sentry
Ins. v. Shivers, 164 F.R.D. 255, (D. Kan. 1996). Another cited case involves a
party’s attempt to notice depositions of additional 30(b)(6) corporate
representatives. These cases are clearly distinguishable from the situation
presented to the Court herein.
Plaintiff argues that he should be allowed to depose Plaintiff in the present
action.
The two matters involve separate and distinct
claims. The state court case involved false allegations of
stalking in [Defendant’s] petition for a protection from
stalking order (PFS). That action provided the
underlying basis for this case. This federal matter brings
common law tort claims for malicious prosecution, abuse
of process, and defamation. Each of those causes of
action involve distinct elements never at issue in the state
action.
...
The deposition of [Defendant] in the state stalking matter
occurred over three years ago. The specific elements of
plaintiff’s claims in this case were not addressed in that
deposition. At that time, [Plaintiff’s] counsel did not
predict this federal case and the claims and elements
herein.
(Doc. 41, sealed, at 1.) The Court agrees with Plaintiff. Defendant has failed to
establish good cause for the requested Protective Order prohibiting Plaintiff from
deposing Defendant in the present matter for the first time. Defendant’s motion is,

therefore, DENIED.

IT IS THEREFORE ORDERED that Defendant’s Motion (Doc. 36,
sealed) is DENIED.
IT IS SO ORDERED.
Dated this 4th day of August, 2017, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE