Hurd v. The City of Lincoln et al

Filing 92

ORDER granting 85 Motion to Quash Ordered by Magistrate Judge Cheryl R. Zwart. (JLK)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TROY M. HURD,
Plaintiff,

4:16CV3029

vs.
MEMORANDUM AND ORDER
THE CITY OF LINCOLN, a political
subdivision; TOM CASADY, in their
individual and official capacities; JOHN
HUFF, in their individual and official
capacities; PAT BORER, in their
individual and official capacities; ROGER
BONIN, in their individual and official
capacities; JEANNE PASHALEK, in their
individual and official capacities; and
LEO BENES, in their individual and
official capacities;
Defendants.
This matter is before the court on Defendant City of Lincoln and Mayor Chris
Beutler’s Motion to Quash and/or Motion for Protective Order. (Filing No. 85). For
the following reasons, the Motion to Quash motion will be granted.

BACKGROUND

Plaintiff Troy M. Hurd filed this employment action against the City of Lincoln
and six named defendants in their individual and official capacities alleging the City
took adverse action against him in retaliation for filing complaints of discrimination
and retaliation. (Filing No. 1). Plaintiff alleges claims arising under 42 U.S.C. § 1983,
Title VII of the Civil Rights Act, and the Nebraska Fair Employment Practice Act.
(Filing No. 18).

The Final Progression Order was entered in June of 2016, (Filing No. 13), and
discovery has been extensive: Plaintiff has deposed all but one named Defendant as
well as several other witnesses, and Defendants have produced over 6,500 emails
and attachments and over 49,000 pages of documents. Plaintiff now seeks to
depose City of Lincoln Mayor Chris Beutler, arguing Mayor Beutler has personal
knowledge of the investigation into Plaintiff’s EEO complaint and he supervised
Kimberly Taylor-Riley, who completed the investigation of Plaintiff’s internal EEO
complaint. Plaintiff also seeks information from Mayor Beutler regarding the City’s
“motivations” concerning the outcome of Hurd’s complaints with the City.

Defendant City of Lincoln and Mayor Beutler seek to quash Plaintiff’s Notice
of Deposition of the Mayor, (Filing No. 74), or in the alternative, they request a
protective order regarding the potential testimony by Mayor Beutler. (Filing No. 85).

ANALYSIS

Rule 26(b)(1) of the Federal Rules of Civil Procedure was amended on
December 1, 2015. Rule 26 governs discovery and limits the scope of discovery to
any nonprivileged matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Courts should examine each case individually to determine
the weight and importance of the proportionality factors.

The burden of demonstrating the proportionality of the requested information
is a collective responsibility between the parties and the court. Elizabeth D. Laporte
& Jonathan M. Redgrave, A Practical Guide to Achieving Proportionality Under New
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Federal Rule of Civil Procedure 26, 9 FED. CT. REV. 20, 40 (2015). A party requesting
discovery must show how the requested information is important to the issues and
resolution of the case. The responding parting must show the expense and burden
of responding. Id. The court can then balance the parties’ interests and order
discovery consistent with the proportionality mandated under the federal rules.

Citing In re United States (Holder), 197 F.3d 310, 313-14 (8th Cir. 1999), the
movants argue that the deposition of Mayor Beutler, a high ranking City official,
should not be allowed absent extraordinary circumstances. In re Holder stated that
““[i]f other persons can provide the information sought, discovery will not be
permitted against such an official.” Id. at 314. This is because "high ranking
government officials have greater duties and time constraints than other witnesses
[and] they should not, absent extraordinary circumstances, be called to testify
regarding their reasons for taking official actions." Id. at 313 (citations omitted).

Plaintiff does not dispute that Mayor Beutler is a high ranking official, but
instead argues that Mayor Beutler’s testimony is relevant, essential, unique, and
cannot be obtained from any alternative source. Specifically, Plaintiff argues Mayor
Beulter is a crucial witness who “most likely played a part in some of the most critical
decisions made during and after the Hurd investigation[.]” (Filing No. 90 at CM/ECF
p. 12). Plaintiff cites several examples of decisions the Mayor “may have” made. But
Plaintiff fails to provide more than mere conjecture and conclusory statements
regarding the potential testimony of Mayor Beutler and that he is the sole source of
that information. Plaintiff has failed to show that any information the Mayor has
cannot be obtained from his subordinates and/or other defendants or witnesses in
this case.

To date, Plaintiff has spent nearly 40 hours deposing defendants and
witnesses. Of the depositions conducted, each deposed defendant has answered
questions regarding his or her knowledge of meetings with the Mayor and/or
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discussed the Mayor’s role in the investigation of Plaintiff’s complaints. And of the
6,500 emails produced by Defendant, none are to or from Mayor Beutler.

Plaintiff has failed to show the deposition of Mayor Beutler is necessary or
proportionate to the needs of this case. Accordingly, movants’ motion to quash
(Filing No. 85) will be granted. Plaintiff’s notice to take the deposition of Mayor Chris
Beutler will be quashed, but without prejudice to reassertion upon a showing that the
information from the mayor's subordinates is insufficient and obtaining further
discovery by deposing the mayor is proportionate to the needs of the case.

IT IS ORDERED:

1)

Movant’s Motion to Quash, (Filing No. 85), is granted.

2)

Plaintiff’s Notice to Take Deposition of Mayor Chris Beutler, (Filing No.
74), is quashed without prejudice as more fully set out above.

Dated this 21st day of December, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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