Holliday v. Commonwealth Brands, Inc.

Filing 80

ORDER granting in part and denying in part 63 Motion for Discovery; granting 64 Motion to Quash and for Protective Order as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (car, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TILDEN HOLLIDAY

CIVIL ACTION

VERSUS

NO. 10-2785

COMMONWEALTH BRANDS, INC.

SECTION “A”(2)

ORDER ON MOTIONS
APPEARANCES: None (on the briefs)
MOTIONS:

(1)
(2)

Plaintiff’s Motion for Leave of Court to Take More Than 10
Depositions, Record Doc. No. 63
Defendant’s Motion to Quash and for Protective Order
Relating to Plaintiff’s May 23, 2011 Deposition Notices,
Record Doc. No. 64

O R D E R E D:
(1) : GRANTED IN PART AND DENIED IN PART, but only subject to the condition
contained in this order. “A party must obtain leave of court, and the court must grant
leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to
the deposition and: the deposition would result in more than 10 depositions being taken
under . . . by the plaintiffs, or by the defendants, . . .” Fed. R. Civ. P. 30(a)(2)(emphasis
added). The Rule 26(b)(2) factors with which the taking of excess depositions must be
consistent are whether (i) the discovery is unreasonably cumulative or duplicative or can
be obtained from some more convenient, less burdensome or less expensive source; (ii)
ample opportunity to obtain the information by discovery has already been available and
(iii) whether the burden or expense of the discovery outweighs its likely benefit,
considering the amount in controversy, the parties’ resources and the importance of the
issues and the discovery in resolving the issues.
Evaluating these considerations in this case, I find that four of the requested
additional seven depositions may be taken, but only if Judge Zainey extends the

discovery deadline for purposes of taking those four depositions in the new Rule 16 order
he will enter after the upcoming June 23, 2011 scheduling conference.
Specifically, the motion is denied as to proposed deponents Mike Lee, George
Bucas and Gary Ebert. Plaintiff’s motion papers do not persuasively explain why the
testimony of these witnesses is relevant or how the Rule 26(b) factors affect this request
as to these three (3) depositions. None of these three (3) are listed as potential trial
witnesses by defendant, Record Doc. No. 17. None of them are under defendant’s
control, since they all appear to be ex-employees. Record Doc. No. 51-1 at p. 2 of 36;
Record Doc. No. 63-12 at p. 2 of 3. Plaintiff concedes that he has had some sort of desire
to take their depositions for almost two years, Record Doc. No. 51-1 at p. 2 of 36;
Record Doc. No. 63-12 at p. 2 of 3, but provides no indication that he ever attempted to
locate or subpoena them, despite having had ample time to do so.
On the other hand, the motion is conditionally granted as to proposed deponents
Russ Mancuso, Mina Hernandez, Brian Gogarty and Bonita McIntyre Poore. All of these
witnesses are listed on defendant’s witness list as potential trial witnesses, including
Mancuso as a will call witness. In addition, Mancuso has submitted an extensive sworn
declaration in support of defendant’s pending summary judgment motion. Record Doc.
No. 30-9 at pp. 6-10. The content of Mancuso’s declaration indicates that Poore may have
substantial relevant knowledge. Considering the mandatory [“must”] language of Rule
30(a) in combination with the Rule 26(b)(2) factors as to these four (4) witnesses, I find
that leave should be granted to exceed the 10-deposition limit – which plaintiff has in fact
previously reached – to permit their depositions. Although one Rule 26(b)(2) factor (i.e.,
that plaintiff has had ample opportunity to depose them) weighs against permitting them,
the remaining factors weigh in favor of doing so. Their potential knowledge of relevant
information appears significant, and I cannot conclude that their depositions would be
unreasonably cumulative or duplicative or that their expense would outweigh their benefit
to resolving the issues in the case. I further find, however, that these four additional
depositions should proceed only under the following condition:
I cannot determine if Judge Zainey’s intent in issuing his recent continuance order,
Record Doc. No. 58, was to permit additional discovery beyond the previously imposed
deadline, other than the continued deposition of Hoke Whitworth that was specifically
referenced in his order. In their current motion papers submitted to me, counsel disagree
on the intent of the order and the oral indications given by Judge Zainey to them during
their recent conference. Accordingly, IT IS ORDERED that plaintiff may take the
depositions of Russ Mancuso, Mina Hernandez, Brian Gogarty and Bonita McIntyre
Poore, at a place, time and date that are mutually convenient for counsel and the
witnesses, BUT ONLY IF THE NEW SCHEDULING ORDER TO BE ENTERED BY
JUDGE ZAINEY AFTER HIS JUNE 23, 2011 CONFERENCE SPECIFICALLY
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PERMITS IT, or if the parties reach a written stipulation agreeing to these four (4)
depositions. Fed. R. Civ. P. 29. Counsel are directed to confer with each other concerning
these depositions and to raise this topic with Judge Zainey during his upcoming
conference.
(2) : GRANTED. The May 23, 2011 deposition notices provided wholly unreasonable
notice in violation of Fed. R. Civ. P. 30(b)(1) and were submitted without leave of court
in violation of Fed. R. Civ. P. 30(a)(2)(A)(i). They necessitated the expense of motion
practice, Fed. R. Civ. P. 32(a)(5)(A), that plaintiff should have avoided by first seeking
leave to take these depositions or by providing reasonable notice. Accordingly,
defendant’s request for an award of attorney’s fees and expenses is granted. Fed. R. Civ.
P. 26(c)(3). Plaintiff and/or his counsel must pay defendant $600.00 to compensate
defendant for reasonable fees and expenses incurred in connection with this motion.
New Orleans, Louisiana, this

8th

day of June, 2011.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
CLERK TO NOTIFY:
HON. JAY C. ZAINEY

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