Brandner, et al v. State Farm Mutual Automobile Insurance Company et al

Filing 49

ORDER granting in part and denying in part 40 Motion for Protective Order to Quash Subpoena and Deposition Notice. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/2/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL BRANDNER, JR.,
ET AL.

CIVIL ACTION
NO. 17-454-BAJ-RLB

VERSUS
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, ET AL.
ORDER
Before the Court is Plaintiff’s Motion for Protective Order to Quash Subpoena and
Deposition Notice (R. Doc. 40) filed on December 14, 2017. The motion is opposed. (R. Doc.
47).
Plaintiff seeks an order quashing a subpoena and notice served by defendant State Farm
Automobile Insurance Company (“State Farm”) requiring Plaintiff to testify at a deposition in
Baton Rouge, Louisiana on January 4, 2018, at 1:00 p.m. (R. Doc. 40-3). Plaintiff asserts that
the subpoena and notice should be quashed because they were issued “without any conference
with the undersigned or request for availability,” and prior to defendant Mirna Velasquez’s
“compliance with Rule 26(f), her provision of initial disclosures, and her filing an Answer to the
Petition for Damages.” (R. Doc. 40-1 at 1). Plaintiff further asserts that Plaintiff’s counsel “has a
conference/hearing in Civil District Court on January 4, 2018 as well as witness and expert
meetings to prepare for a jury trial in January 2018 in the USDC for the Eastern District of
Louisiana.” (R. Doc. 40-1 at 4).
In opposition, State Farm provides evidence that it originally noticed the deposition of
Plaintiff to take place on May 5, 2017, but Plaintiff unilaterally cancelled the deposition on the

basis that he would be out of town. (R. Doc. 47-1; R. Doc. 47-2). State Farm also provides
evidence that it attempted to reschedule the deposition on several occasions, but Plaintiff stated
he would not appear for a deposition until he received all documents sought in discovery from
State Farm. (R. Doc. 47-3; R. Doc. 47-4; R. Doc. 47-5; R. Doc. 47-6; R. Doc. 47-7). Finally,
State Farm provides evidence that when it issued the instant subpoena and deposition notice, it
offered to modify the deposition date and time in accordance with Plaintiff’s counsel’s
availability. (R. Doc. 47-8). State Farm requests the Court to require Plaintiff’s deposition to
take place on the date and time noticed or, in the alternative, to permit it to take the deposition
within 30 days of the Court’s ruling on the instant motion. (R. Doc. 47 at 8).
“The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
Rule 26(c)’s “good cause” requirement indicates that the party seeking a protective order has the
burden “to show the necessity of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory statements.” 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)).
Given Plaintiff’s counsel’s conflicts with the January 4, 2018 deposition date and time,
the Court finds good cause for issuing a protective order precluding the deposition of Plaintiff
from taking place on the date and time noticed. The Court will not, however, quash the
subpoena and deposition notice in their entirety. The correspondence submitted by State Farm
indicates that it has been diligent in attempting to secure the deposition of Plaintiff. The Court
finds no basis for allowing Plaintiff to suspend his deposition until State Farm has produced

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certain documents,1 or Ms. Velasquez has participated in discovery or filed a responsive
pleading.2 See Fed. R. Civ. P. 26(d)(3).
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion for Protective Order to Quash Subpoena and
Deposition Notice (R. Doc. 40) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that State Farm’s subpoena and deposition notice are
modified to require Plaintiff to testify at a deposition to take place on February 8, 2018 at 1:00
p.m. at 4880 Bluebonnet Blvd., Ste. A, Baton Rouge, LA 70809, or an alternative time and place
agreed upon by the parties.
Signed in Baton Rouge, Louisiana, on January 2, 2018.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

1

Plaintiff has filed a motion to compel certain discovery from State Farm (R. Doc. 29). The motion, which is
opposed (R. Doc. 34), remains pending before the undersigned.
2
Ms. Velasquez has filed a motion to dismiss for insufficient service of process (R. Doc. 41). The motion, which is
opposed (R. Doc. 48), remains pending before the district judge.

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