AIDS Healthcare Foundation, Inc. v. City of Baton Rouge/Parish of East Baton Rouge

Filing 76

ORDER: The 66 Motion for Protective Order Against Improperly Noticed Depositions is DENIED, with the exception that the noticed depositions shall not proceed on June 29, 2018, unless otherwise agreed by the parties. The deadline to complete non-ex pert discovery is STAYED pending resolution of Plaintiff's 72 Motion for Extension of Discovery Deadlines. Opposition to 72 Motion for Extension of Discovery Deadlines due by 7/6/2018. Opposition to 71 Motion to Compel due by 7/17/2018. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 6/28/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

AIDS HEALTHCARE FOUNDATION, INC.

CIVIL ACTION

VERSUS
NO. 17-229-BAJ-RLB
CITY OF BATON ROUGE/PARISH OF EAST
BATON ROUGE, THROUGH THE CITY OF
BATON ROUGE DIVISION OF HUMAN
DEVELOPMENT AND SERVICES
ORDER
Before the Court is Defendant’s Motion for Protective Order Against Improperly Noticed
Depositions (R. Doc. 66) filed on June 22, 2018. The motion is opposed. (R. Doc. 73).
The current deadline to complete non-expert discovery in this action is June 29, 2018. (R.
Doc. 60). On June 20, 2018, Plaintiff served on Defendant seven depositions notices for the
Rule 30(b)(1) depositions of the following individuals: Thomas Hickey (R. Doc. 66-3); Gail
Grover (R. Doc. 66-4); Mayor-President Sharon Weston Broome (R. Doc. 66-5); Joyce Biagas
(R. Doc. 66-6); Dr. Tamiara Wade, Ph.D. (R. Doc. 66-7); Shamell Lavigne (R. Doc. 66-8); and
Paula Merrick Roddy (R. Doc. 66-9). These deposition notices do not provide a time or place for
the depositions. On June 22, 2018, Plaintiff served “revised deposition notices” for the
foregoing depositions to all take place on June 29, 2018, the current deadline to complete
discovery, offering to “set them for a time after the discovery cutoff that is convenient to the
witnesses and all parties.” (R. Doc. 71-20).1

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In support of its motion, Defendant only provided copies of the revised deposition notices for Paula Merrick Roddy
(R. Doc. 66-15), Joyce Biagas (R. Doc. 66-16), and Thomas Hickey (R. Doc. 66-17), setting their depositions for
June 29, 2018 at the Office of the Parish Attorney.

Defendant now seeks an order effectively quashing the seven deposition notices on the
following bases: (1) Plaintif failed to provide reasonable notice of the depositions; (2) Plaintiff
failed to obtain leave to depose Ms. Lavigne a second time; (3) the notices fail to set a time and
place of the depositions; (4) the notices violate Local Rule 26(d)(2) because they purport to
schedule depositions after the deposition deadline; and (5) that the depositions fall outside the
scope of discovery and are intended to harass and increase costs. (R. Doc. 66-1).
In opposition, Plaintiff addresses the foregoing arguments as follows: (1) Defendant has
been on notice of Plaintiff’s intent to depose the foregoing individuals since at least May 10,
2018,2 and the notice of the depositions was otherwise reasonable; (2) Ms. Lavigne was formerly
deposed solely in her capacity as a Rule 30(b)(6) representative of Defendant; (3) the revised
deposition notices “clearly set the depositions for June 29, 2018, starting at 9:00 a.m. and
thereafter every hour at the office of EBR’s counsel”; (4) the revised notices set the depositions
to take place on the discovery deadline, namely June 29, 2018; (5) and Defendant has not made
any specific showing why the depositions fall outside the scope of discovery or why a protective
order regarding the depositions is merited. (R. Doc. 73).
On June 26, 2018, Plaintiff filed a Motion to Compel (R. Doc. 71) and Motion for
Extension of Discovery Deadlines (R. Doc. 72). In the Motion to Compel, Plaintiff seeks
supplemental written responses, supplemental productions of documents, and a supplemental
privilege log. In the Motion for Extension, Plaintiff seeks an extension of the discovery deadline
by 30 days in light of the production over 20,000 documents by Defendant on June 25, 2018.
The deadline for filing responses to these motions has not expired. LR 7(f).

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The letter relied on by Plaintiff for this proposition states that after receipt of documents responsive to certain
discovery requests, Plaintiff expected “to take additional depositions of one or more persons on this list,” which
included five of the seven deponents at issue. (R. Doc. 71-8)

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Having reviewed the arguments of the parties, and the underlying deposition notices, the
Court concludes that Defendant’s Motion for Protective Order (R. Doc. 66) lacks merit.
First, the record indicates that Plaintiff served the original deposition notices nine days
prior to the discovery deadline, and revised those deposition notices within seven days of the
discovery deadline to indicate that the depositions were noticed to take place on the June 29,
2018. Plaintiff represents that the individuals to be deposed all “reside or work in East Baton
Rouge Parish, which is where the depositions would be conducted.” (R. Doc. 73 at 2 n.4). The
Court does recognize, however, that under the facts of this case and considering the number of
non-party witnesses, the time within which the depositions were noticed is not sufficient. The
Court is also aware that these depositions should not have been a surprise to the defendant based
on prior communications between the parties. Given the record, and as discussed more fully
below, the Court will not require the depositions to proceed on June 29, 2018, effectively
extending the notice period, but will not quash the depositions on this basis.3
Second, Plaintiff represents that Ms. Lavigne was formerly deposed solely in her capacity
as a Rule 30(b)(6) representative. Courts have recognized that a party may depose a particular
individual under both Rule 30(b)(1) and Rule 30(b)(6) in a single action. See Sw. Bell Tel., L.P.
v. UTEX Commc'ns Corp., No. 07-435, 2009 WL 8541000, at *2 (W.D. Tex. Sept. 30, 2009)
(citing cases). Plaintiff may proceed with the deposition of Ms. Lavigne in her individual
capacity without seeking leave of court under Rule 30(a)(2)(A)(ii).
Third, while the initial notices of the depositions failed to set a time and place of the
depositions, the record indicates that Plaintiff remedied this deficiency in its revised notices of
depositions by providing a time and place in compliance with Rule 30(b)(1),.

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It does not appear that Plaintiff served any Rule 45 subpoenas. Accordingly, the Court does not address Rule 45.

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Fourth, given the revised notices of depositions, Plaintiff did not seek to take depositions
beyond the discovery deadline in violation of the Scheduling Order or Local Rule 26(s)(2).
Finally, the record indicates that the depositions fall within the scope of discovery as
provided by Rule 26(b)(1). Defendant has not made any specific showing that there is good
cause for the issuance of a protective order pursuant to Rule 26(c) quashing the deposition
notices on the basis of annoyance, embarrassment, oppression, or undue burden or expense. See
In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571
F.2d 1323, 1326 n.3 (5th Cir. 1978)); see also Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir.
1979) (“It is very unusual for a court to prohibit the taking of a deposition altogether and absent
extraordinary circumstances, such an order would likely be in error.”).
Given the foregoing, the Court will not issue a protective order effectively quashing the
deposition notices in their entirety based on the instant motion. The Court will not, however,
require the depositions to proceed on June 29, 2018. Given the record, the Court finds good
cause for staying discovery until the resolution of Plaintiff’s Motion for Extension of Discovery
Deadlines (R. Doc. 72). After Defendant has had an opportunity to file a response to that
motion, which the Court will order filed on an expedited basis pursuant to Local Rule 7(f), the
Court will provide a deadline to complete the noticed depositions.
Based on the foregoing,
IT IS ORDERED that Defendant’s Motion for Protective Order Against Improperly
Noticed Depositions (R. Doc. 66) is DENIED, with the exception that the noticed depositions
shall not proceed on June 29, 2018, unless otherwise agreed by the parties.
IT IS FURTHER ORDERED that the deadline to complete non-expert discovery is
STAYED pending resolution of Plaintiff’s Motion for Extension of Discovery Deadlines (R.

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Doc. 72). Defendant shall file any opposition to Plaintiff’s Motion for Extension of Discovery
Deadlines by July 6, 2018. Defendant shall file any opposition to Plaintiff’s Motion to Compel
(R. Doc. 71) by July 17, 2018.
Signed in Baton Rouge, Louisiana, on June 28, 2018.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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