Ryan v. Kentucky Department of Corrections Western Regional Traning Center

Filing 23

Order for Proceedings held before Magistrate Judge Lanny King: denying 20 Motion to Compel; granting [] Motion for Extension of Time to Complete Discovery; Telephone Conference held on 3/22/2016. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:14-CV-00089-TBR-LLK
ROSEMARY RYAN

PLAINTIFF

v.
KENTUCKY DEPARTMENT OF CORRECTIONS
WESTERN REGIONAL TRAINING CENTER

DEFENDANT

OPINION AND ORDER
Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for
ruling on all discovery motions. (Docket # 18). The Court held a telephonic status conference on
March 22, 2016. (Docket # 22). Counsel for all parties attended.
The parties informed the Court of a dispute regarding the timing and location of a
deposition. Plaintiff planned to depose Colonel Chris Kleymeyer, Director of Operations,
Kentucky Department of Corrections, in Eddyville, the location of the training center at which
Plaintiff was employed during the relevant period. Colonel Kleymeyer’s normal work location is
Frankfort. Defendant asked that the deposition take place in Frankfort, which the Court
interpreted as an oral Motion for Protective Order. For the reasons described in this opinion and
order, the Court grants Defendant’s Motion, Defendant’s employee may be deposed in Frankfort,
and Defendant will make the employee available for that deposition prior to April 29, 2016.
Background
Plaintiff filed her complaint in District Court alleging violation of Title VII of the Civil

Rights act of 1964, 42 U.S.C. Section 2000e et seq. and Age Discrimination in Employment Act
of 1964 (ADEA), including sex discrimination, age discrimination, retaliation, and sexual
harassment (Docket # 1). Defendant answered denying the allegations (Docket # 6) and filed a
Motion to Dismiss (Docket # 9), which Senior Judge Russell denied (Docket # 14). Judge
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Russell then issued a Scheduling Order (Docket # 15) which he amended once (Docket # 18) in
response to Plaintiff’s Motion for an Extension of Time to Complete Discovery (Docket # 16).
Plaintiff made an additional filing consisting of a Motion for an Extension of Time to Complete
Discovery and a Motion to Compel (Docket # 20) and the undersigned issued an Order
suspending the March 1, 2016 discovery deadline, directing the Defendant to respond to all then
pending written discovery requests by March 11, 2016, and directing the parties to meet and
confer to schedule remaining depositions (Docket # 22).
During a status conference on March 22, 2016, the parties informed the Court that
Defendant had provided responses to all written discovery requests that were the subject of
Plaintiff’s Motion to Compel (Docket # 20). Additionally, the parties informed the Court of a
dispute regarding the timing and location of one of the remaining depositions. Plaintiff planned
to depose Defendant’s employee in Eddyville. Defendant asked that the employee be deposed in
his normal work location, Frankfort.
The deposing party generally has the option to choose the location for a deposition. See
Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary, Rule 30 (2015).
The opposing party may file a motion for a protective order to challenge the location. Id. A court
may grant the motion on showing of “good cause” to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense…” Fed. R. Civ. P. 26(c). “The burden of
establishing good cause sufficient for the issuance of a protective order rests on the moving
party, i.e., Defendant.” Nix v. Sword, 11 Fed. App’x 498, 500 (6th Cir. 2001) (per curiam).
While the burden is on the moving party, this Court recognizes that district courts within
the Sixth Circuit have developed a body of case law that favors deposing a defendant’s employee
in the employee’s normal location (which in the case of an employee means the employee’s
normal work location) because the defendant, unlike the plaintiff, did not choose the forum and
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is not a voluntary participant in the litigation. Further, if the deposing plaintiff chooses any other
location, there is a presumption that good cause exists for a protective order for defendant’s
employee. Culver v. Wilson, No. 3:14–CV–660–CRS–CHL, 2015 WL 1737779, at *3 (W.D.Ky.
Apr. 16, 2015). “District courts of the Sixth Circuit have held that a rule has ‘evolved’ such that
‘in federal litigation, in the absence of special circumstances, a party seeking discovery must go
where the desired witnesses are normally located.’” Id. (citing Farquhar v. Shelden, 116 F.R.D.
70, 72 (S.D.Mich.1987). “The rationale behind this rule is that the plaintiff chose the forum
voluntarily, but the defendant is an involuntary participant in the litigation.” Culver, 2015 WL
1737779 at *3. “The purposes underlying these general rules create a presumption that there is
good cause for a protective order when a deposition is noticed for a location other than the
defendant's place of residence.” Id. (citing Steppe v. Cleverdon, 2007 U.S. Dist. LEXIS 54154,
*5, 2007 WL 6831006 (E.D.Ky.2007) (citing Chris–Craft Indus. Prods., Inc. v. Kuraray Co.,
Ltd., 184 F.R.D. 605, 607 (N.D.Ill.2009)).
Plaintiff has proposed a location for the deposition, Eddyville, which is not the
employee’s normal work location. Defendant, therefore, has a presumption of good cause to
receive a protective order to hold the deposition in its employee’s normal work location,
Frankfort. Additionally, Defendant cited several reasons for moving to have its employee
deposed in Frankfort, including time and opportunity cost for travel from Frankfort to Eddyville
and a particularly busy workload for the employee between now and the end of discovery.
Plaintiff has stated that travel time from Eddyville to Frankfort would create the same
cost and inconvenience for her as for Defendant’s employee. That Plaintiff may be burdened
with the same cost and inconvenience as Defendant’s employee is not sufficient to rebut the
presumption Defendant has in favor of a protective order allowing its employee to be deposed at
his normal work location. See Culver, supra.
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IT IS HEREBY ORDERED that Defendant’s objection, which this Court interprets as an
oral Motion for a Protective Order is GRANTED, Defendant’s employee, Colonel Chris
Kleymeyer, may be deposed in Frankfort, and Defendant will make the employee available for a
deposition prior to April 29, 2016.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Extension of Time to Complete
Discovery (Docket # 20) is GRANTED and the date for the parties to complete all discovery,
which had been suspended (Docket # 22), is now set for April 29, 2016.
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel (Docket # 20) is DENIED
as moot.
IT IS HEREBY ORDERED that all other deadlines in the Amended Scheduling Order
(Docket # 18) remain in effect.

March 23, 2016

c:
p:

Counsel
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