Purdy v. Topac Express, a corporation et al
Filing
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OPINION and ORDER (1) Denying Defendants' 22 Motion for Protective Order to Terminate the Deposition of Robert Bruce McKay; and (2) Denying 22 Motion for Sanctions. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHELLY ELIZABETH PURDY,
Plaintiff,
Civil Case No. 16-10740
Honorable Linda V. Parker
v.
TOPAC EXPRESS, a corporation
And GURWINDER SINGH BAINS,
an individual,
Defendants.
________________________________/
OPINION AND ORDER (1) DENYING DEFENDANTS’ MOTION FOR
PROTECTIVE ORDER TO TERMINATE THE DEPOSITION OF
ROBERT BRUCE MCKAY AND (2) DENYING DEFENDANTS’ MOTION
FOR SANCTIONS [ECF. NO. 22]
I. Introduction
This lawsuit stems from a tractor-trailer/motorcycle accident that occurred in
Ann Arbor on July 5, 2013. The accident occurred between Plaintiff Shelly
Elizabeth Purdy (“Plaintiff”) and Defendant Gurwinder Singh Bains (“Defendant
Bains”) who drove a truck as an employee of Defendant Topac Express
(collectively “Defendants”). Presently before the Court are Defendants’ motion for
protective order to terminate the deposition of Robert Bruce McKay and
Defendants’ motion for sanctions. (ECF No. 22.) Finding the facts and legal
arguments sufficiently presented in the parties’ briefs, the Court dispensed with
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oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f) on June
21, 2016. (ECF No. 26.) For the reasons that follow, the court is denying
Defendants’ motion for protective order to terminate the deposition of Robert
Bruce McKay and denying Defendants’ motion for sanctions.
II. Background
On March 31, 2016, this Court issued a scheduling order that provided a
discovery deadline of October 14, 2016. (ECF No. 12.) During the course of
discovery, the parties agreed that the depositions of Defendant Gurwinder Singh
Bains (“Defendant Bains”) and Robert Bruce McKay, Safety Director of
Defendant Topac Express, would take place on May 26, 2016 in Toronto, Canada.
(ECF No. 15-5 at Pg ID 140.) Pursuant to the parties Rule 26(f) conference, it was
determined the maximum length of depositions would be 5 hours. (ECF No. 27 at
Pg ID 465.) Plaintiff’s counsel served notice for the depositions of Defendant
Bains and Mr. McKay on April 12, 2016. (ECF No. 15-2 at Pg ID 130-32.)
In anticipation of the deposition, Defendants served their responses to
interrogatories on May 20, 2016. (ECF Nos. 15-7, 15-8.) A discovery dispute
arose on May 23, 2016, when counsel for the Plaintiff’s wanted to postpone the
May 26 depositions because counsel found the responses incomplete. (ECF No.
15-3 at Pg ID 135.) This resulted in Defendants filing a motion for an emergency
protective order with Magistrate Judge Majzoub. (ECF No. 15.) The parties
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participated in a telephone conference with Magistrate Judge Majzoub, where she
ordered that Defendants’ Emergency Motion for Protective Order was denied; the
depositions of Defendant Bains and McKay would be rescheduled for another date;
and Plaintiff would be responsible for reasonable expenses and attorney’s fees
incurred by Defendants due to the adjournment of the two depositions. (ECF No.
19 at Pg ID 195.)
During the telephone conference, there was a discussion of defense
counsel’s travel plans scheduled for the evening of May 26, 2016. (ECF No. 225.) Kevin Mulvaney, counsel for Defendants, had a flight scheduled for the
evening of May 26th from Toronto for personal reasons. (ECF No. 22-7 at Pg ID
314.) He had purchased a ticket for the flight after counsel for both parties agreed
on the deposition date. (Id.) As of the telephone conference, Plaintiff’s counsel
Jinan Hamood was aware that Mr. Mulvaney would have to leave the deposition
on May 26 at 5:00 PM. No objections were made. (ECF No. 22-5.)
The next day, Mr. Mulvaney spoke with co-counsel for the Plaintiff, Oscar
Rodriguez, about the upcoming depositions. (ECF No. 22, ¶ 17.) During this
conversation, Mr. Mulvaney shared that the depositions would need to end by 5:00
PM on May 26th due to his travel itinerary. (Id.) Mr. Mulvaney offered to start
the deposition an hour earlier than scheduled to help accommodate Ms. Hamood
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and Mr. Rodriguez. (Id.) Mr. Rodriguez declined, keeping the first deposition
scheduled for 9:00 AM. (Id.)
On May 26, 2016, the depositions began as planned at 9:00 AM, starting
with Defendant Bains. (Id., ¶ 18.) His deposition ended at approximately 3:00
PM. (Id., ¶ 19.) After a lunch break, the deposition of Mr. McKay began at 3:46
PM. (Id., ¶¶ 21, 22.) Throughout the day, Mr. Mulvaney reminded opposing
counsel that the depositions would need to conclude at 5:00 PM. (Id., ¶¶ 18, 23.)
No objections were made. (Id.) After 5:00 PM, Mr. Mulvaney reminded opposing
counsel that he had to leave. (Id., ¶¶ 24, 25.) The deposition ended at 5:08 PM.
(Id., ¶ 25.) Mr. Mulvaney counsel alleges that Plaintiff’s counsel used aggressive
language against him both during and after the deposition. (Id., ¶ 26.) Counsel for
the Plaintiff does not dispute that the statements were made. (ECF No. 27, ¶ 22.)
The deposition of Mr. McKay lasted 83 minutes. (ECF No. 27 at Pg ID 42324.) After the deposition, Ms. Hamood made repeated requests to Mr. Mulvaney
to provide dates to continue Mr. McKay’s deposition. (ECF No. 22-14 at Pg ID
399-401.) On June 16, 2016, Mr. Mulvaney sent Ms. Hamood a letter stating that
he would not produce Mr. McKay for another deposition. (ECF No. 22-13 at Pg
ID 396-97.)
Defendants’ counsel filed the instant motion on June 17, 2016, requesting
that this Court (1) issue a protective order terminating the deposition of Mr.
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McKay; (2) issue sanctions against Plaintiff and Plaintiff’s counsel for alleged
discovery abuse; and (3) award Defendants reasonable attorney fees and costs due
to the actions of both Plaintiff and Plaintiff’s counsel. (ECF No. 22 at Pg ID 220.)
Plaintiff’s response requests that the Court (1) deny Defendants’ motion; (2) order
Defendants to produce Mr. McKay for a continued deposition; and (3) sanction
Defendants’ for causing Plaintiff’s counsel to spend 15 hours responding to their
motion. (ECF No. 27 at Pg ID 444.)
III. Legal Standard
Federal Rule of Procedure 26(c) allows the court to issue protective orders
for good cause shown to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including that the
disclosure or discovery not be had or that the disclosure or discovery be limited to
certain matters.” Fed. R. Civ. P. 26(c)(1). The party seeking a protective order has
the burden of showing that good cause exists for the order. Nix v. Sword, 11
Fed.Appx. 498, 500 (6th Cir. 2001). To show good cause, the movant must
articulate specific facts showing “clearly defined and serious injury resulting from
the discovery sought and cannot rely on mere conclusory statements.” Id. (citations
and internal quotation marks omitted).
Under Federal Rule of Civil Procedure 30(d)(2), a court “may impose an
appropriate sanction…on a person who impedes, delays, or frustrates the fair
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examination of the deponent.” Fed. R. Civ. P. 30(d)(2). Parties may file a motion
to terminate or limit a deposition if “it is being conducted in bad faith or in a
manner that unreasonably annoys, embarrasses, or oppresses the deponent or
party.” Fed. R. Civ. P. 30(d)(3)(A).
IV. Analysis
Defendants failed to establish that good cause requires protecting Mr.
McKay for the remainder of the five-hour deposition allotted to Plaintiff pursuant
to the Rule 26(f) conference. While it is clear that counsel for both parties have a
contentious relationship, Defendants’ counsel has not provided facts that
demonstrate “serious injury” to Mr. McKay to prevent the continuance of the
deposition. Nix, 11 Fed.Appx. at 500.
The Court finds sanctions against either party are unwarranted. Plaintiff’s
desire to continue the deposition of Mr. McKay does not demonstrate bad faith.
Rather, it is clear there was miscommunication between counsel for both parties
when scheduling Mr. McKay’s deposition as to whether the deposition would be
adjourned. The termination of Mr. McKay’s deposition is not the appropriate
remedy for this error.
Further, the facts presented to the court for the instant motion and history of
the case demonstrate that both parties have contributed to the delay in discovery in
this matter.
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V. Conclusion
Accordingly,
IT IS ORDERED that Defendants’ Motion for Protective Order to
Terminate the Deposition of Robert Bruce McKay and Motion for Sanctions (ECF
No. 22) is DENIED;
IT IS FURTHER ORDERED that Defendants produce Mr. McKay for a
deposition for the remaining time allotted pursuant to the Rule 26(f) conference.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 16, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 16, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager
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