Sabol-Krutz v. Quad Electronics,Inc.
Filing
33
ORDER granting in part and denying in part Defendant's 26 Motion for Protective Order--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STACEY SABOL-KRUTZ,
Plaintiff,
v.
Case No. 2:15-cv-13328
Judge Nancy Edmunds
Magistrate Judge Anthony P. Patti
QUAD ELECTRONICS,
INC.,
Defendant.
_________________________/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S OCTOBER 19, 2016 MOTION FOR PROTECTIVE
ORDER (DE 26)
Currently before the Court is Defendant’s October 19, 2016 motion for
protective order. (DE 26.) Judge Edmunds referred this motion to me for hearing
and determination on October 20, 2016. (DE 27.) Because the motion contained
time-sensitive issues, I issued a text order on October 21, 2016 setting both an
expedited briefing schedule and a hearing for October 26, 2016. Plaintiff filed a
response on October 25, 2016. (DE 30.) Defendant filed a reply on October 26,
2016. (DE 31.) During the course of my hearing, Judge Edmunds issued an
order granting the parties’ joint motion to extend deadlines, which resulted in a
December 15, 2016 discovery deadline. (DE 32.)
On the date set for hearing, attorney Mark Dickow appeared on Plaintiff’s
behalf, and attorney Peter Camps appeared on behalf of Defendant. Consistent
with my findings and reasoning stated on the record, which are hereby
incorporated by this order as though restated herein, Defendant’s October 19, 2016
motion for protective order (DE 26), as narrowed by the reply brief and the
discussion at the hearing, is GRANTED IN PART and DENIED IN PART as
follows:
A. Whether the Court Should Issue a Protective Order Regarding the
Depositions of Witnesses Dan Tomica and Tonya Tarleton.
On October 17, 2016, Plaintiff noticed the depositions of Dan Tomica and
Tonya Tarleton, who are each employees of Defendant, for October 20, 2016
(Tomica) and October 21, 2016 (Tarleton). In the motion for protective order,
Defendant asked the Court to require those depositions to occur on a later date.
Defendant also asked the Court to require Plaintiff’s deposition to be concluded
before defense witnesses, including Tomica and Tarleton, are deposed.
Plaintiff subsequently agreed to adjourn the October 20 and 21 depositions
of Tomica and Tarleton. Thus, Defendant’s request for an order requiring those
depositions to be rescheduled is DENIED AS MOOT.
As discussed at the hearing, no federal or local court rule requires Plaintiff to
be deposed first. However, as Plaintiff’s deposition has already begun, and in
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order to permit defense witnesses to understand the full scope and nature of
Plaintiff’s numerous causes of action prior to being deposed, the Court concludes
that Plaintiff’s deposition should be concluded before defense witnesses are
deposed—if possible. Specifically, Plaintiff shall make herself available to resume
and conclude her deposition in Michigan on a date to be mutually agreed to by
counsel, but in no event later than November 9, 2016 (two weeks from the October
26 hearing). Tomica and Tarleton shall make themselves available to be deposed
on a mutually agreeable date (or dates), but in no event later than November 16,
2016 (three weeks from the October 26 hearing). Plaintiff’s deposition therefore
will conclude before Tomica and Tarleton are deposed, unless Defendant’s
counsel informs Plaintiff’s counsel in good faith that, despite counsel’s best efforts,
Tomica and/or Tarleton are unavailable to be deposed between the time Plaintiff’s
deposition concludes and the November 16 deadline for Tomica and Tarleton to be
deposed. In that event, Tomica and/or Tarleton will by necessity be deposed
before Plaintiff’s deposition concludes.
Although the matter was not specifically addressed in the motion for
protective order, Defendant’s counsel stipulated at the hearing that in order to help
complete discovery efficaciously, he will use his best efforts to make employees of
Defendant, specifically Mary Genuine, Michael Ojala and Brian Kadrich, available
to be deposed within the next three weeks; however, counsel noted that, due to
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their work duties, employees Ojala and Kadrich may need to be deposed within the
next four weeks. Accordingly, the Court will require Genuine to be produced for
deposition by November 16, 2016 and Ojala and Kadrich to be produced for
deposition no later than November 23, 2016.
B. Whether the Court Should Order Plaintiff to Appear for Her
Continued Deposition and Permit Defense Counsel Sufficient Time to
Examine Plaintiff’s Claims.
Plaintiff was deposed for 5.5 hours1 on October 7, 2016. Fed. R. Civ. P.
30(b)(1) provides in relevant part that “[u]nless otherwise stipulated or ordered by
the court, a deposition is limited to one day of 7 hours.” The parties agree that
Plaintiff’s deposition may be resumed, but they do not agree on the maximum
length of that to-be-resumed deposition.
Rule 30(d)(1) provides that “[t]he court must allow additional time
consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if
the deponent, another person, or any other circumstance impedes or delays the
examination.” Similarly, the Advisory Committee Note to the 2000 Amendments
to Rule 30 provides in relevant part that “[t]he party seeking a court order to extend
the examination, or otherwise alter the limitations, is expected to show good cause
to justify such an order.” Of course, Defendant, as the party seeking a protective
1
The
parties had a minor disagreement about precisely how long Plaintiff’s
October 7 deposition lasted. The Court resolved that dispute by holding that
Plaintiff was deposed for 5.5 hours, which is roughly the midpoint between the
parties’ respective positions.
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order, bears the burden to show good cause. See, e.g., Nix v. Sword, 11 Fed. App’x
498, 500 (6th Cir. 2001).
When asked by the Court, Defendant’s counsel stated he needed an
additional 5.5 hours of deposition time to address fully the various counts in
Plaintiff’s Amended Complaint, plus additional time to question Plaintiff regarding
the 75 names on her amended witness list. (DE 24.) Plaintiff’s counsel asserted in
response that, among other things, many of the questions Defendant’s counsel
asked Plaintiff pertained to irrelevant matters.
The Court concludes that Defendant has shown good cause to extend
Plaintiff’s deposition past the typical seven hour maximum due to: (1) the
numerous counts contained in Plaintiff’s 70 paragraph, seven count Amended
Complaint, some of which involve claims made under California law; (2) the
complexity of the issues; (3) the seven figure damage claim; (4) the mix of alleged
oral and written promises; (5) the number of sales, commission payments and
customers at issue over an 8 year employment period; (6) the exchange of
thousands of pages of discovery; and, (7) Plaintiff’s lengthy witness list. (See DE
26 at 12-13.)2 Furthermore, for these same reasons, the factors enumerated in Rule
26(b)(1), as applied to this case, likewise warrant a departure from the limitations
2
Though
the Amended Complaint purports to have eight counts, the Court notes
that there is no enumerated Count V. Instead, the Amended Complaint skips from
Count IV to Count VI. (See DE 9 at 9-10).
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which would normally be applied to the length of Plaintiff’s deposition. The
motion for protective order to extend Plaintiff’s deposition past the seven hour
limit contained in Rule 30(b)(1) thus will be GRANTED. However, the Court
concludes that Defendant reasonably needs only an additional five hours of
deposition time to address adequately both Plaintiff’s Amended Complaint and
witness list. Consequently, Plaintiff may be deposed for a maximum of 10.5 total
hours (inclusive of the 5.5 hours of deposition testimony which has already
occurred, thus permitting an additional 5 hours). If Plaintiff withdraws any of the
counts in her Amended Complaint on the record before her deposition resumes, the
maximum length of the deposition shall be reduced by thirty minutes per each
withdrawn count.
The Court finds that it would be unjust to award costs or expenses stemming
from the motion as the parties’ positions were each justifiable and taken in good
faith, a ruling from this Court being necessary to resolve these genuinely disputed
issues.
IT IS SO ORDERED.
Dated: October 27, 2016
s/ Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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I hereby certify that a copy of the foregoing document was sent to parties of record
on October 27, 2016, electronically and or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
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