Keith M. Raml v. Creighton University

Filing 60

ORDER granting in part and denying in part 50 Motion for Protective Order. Plaintiff is allowed to conduct the deposition, subject to conditions. The deposition shall be limited to two hours and shall be scheduled at a mutually convenient time between today's date and December 1, 2009. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA K E I T H M. RAML, P l a i n t i f f, vs. C R E I G H T O N UNIVERSITY, D efe n d a n t. ) ) ) ) ) ) ) ) )

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T h is matter is before the court on the Motion for Protective Order (Doc. 50) filed by C re ig h t o n University on behalf of ifs President, Rev. John Schlegel, S.J. The court has c o n sid e re d the parties' written arguments and evidentiary materials (Docs. 50, 51, 52, 54, 55, 5 7 & 58) and finds that plaintiff should be allowed to conduct the deposition, subject to c e r ta in conditions. BACKGROUND P la in tif f was employed by defendant, Creighton University ("Creighton"), as a sous c h e f /co o k working in the Jesuit Community Kitchens. His employment was involuntarily te rm in a te d on November 9, 2005. Plaintiff alleges that Creighton unlawfully discriminated a g a in s t him on the basis of age and disability, failed to reasonably accommodate him, and re ta lia te d against him for bringing a workers' compensation claim. Plaintiff, who was over 4 0 years old, was first demoted and then replaced by Michael Kult, who was under 40 years o f age. D e f en d a n t denies that plaintiff suffered from a disability. Defendant alleges that p la in tif f 's employment was terminated "as a result of his inability to maintain a professional d e m e a n o r and interact appropriately in the workplace." Plaintiff was directly supervised by Fr. William Gerut (see, e.g., Doc. 52 at p. 9/27); h o w e v e r, plaintiff has presented evidence that Fr. Gerut reported directly to Fr. Schlegel a b o u t the plaintiff's performance at work (Doc. 55 at p. 6/28). Four days prior to plaintiff's te rm in a tio n , Fr. Gerut corresponded with Fr. Schlegel to obtain permission to waive the p o stin g requirement for plaintiff's former position as Senior Chef so that he could im m e d ia te ly offer the position to Mr. Kult. (Doc. 55 at p. 16/28). Creighton's grievance c o m m itte e also reported directly to Fr. Schlegel about its investigation of plaintiff's a lle g a tio n s (Doc. 55 at p. 15/28), and a member of the committee testified at her deposition th a t Fr. Schlegel retained the ultimate authority to direct that an action be taken with respect

to an employee grievance. The November 9, 2005 memorandum terminating plaintiff's e m p lo ym e n t was signed by Fr. Gerut and Bill Hill. (Doc. 52 at p. 14/27). Fr. Schlegel states b y affidavit (Doc. 52 at pp. 3-4/27) that, although he reviewed and approved the actions of th e grievance committee, he was not involved in the decision to terminate plaintiff's e m p l o ym e n t . P lain tiff wishes to depose Fr. Schlegel in this matter. Creighton requests that this " a p e x deposition" be prohibited due to Fr. Schlegel's congested schedule and his lack of p e rs o n a l knowledge of facts relevant to this lawsuit. In the alternative, Creighton asks that t h e deposition be postponed until plaintiff demonstrates that he is unable to obtain all r e le v a n t information from other witnesses. L E G A L ANALYSIS U n d er Fed. R. Civ. P. 26(b)(1), the parties to a lawsuit may obtain "discovery re g a rd in g any matter, not privileged, that is relevant to the claim or defense of any party." R e lev a n t information need not be admissible at trial "if the discovery appears reasonably c a lc u l a te d to lead to the discovery of admissible evidence." Id. "Relevancy is broadly c o n stru e d , and a request for discovery should be considered relevant if there is 'any p o s s ib ility' that the information sought may be relevant to the claim or defense of any party. A request for discovery should be allowed 'unless it is clear that the information sought can h a v e no possible bearing' on the claim or defense of a party." Moses v. Halstead, 236 F.R.D. 6 6 7 , 671 (D. Kan. 2006) (footnotes omitted). A ll discovery is subject to the limitations imposed by Rule 26(b)(2), and the court m u st limit discovery if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is o b ta in a b le from some other source that is more convenient, less burdensome, o r less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely b e n e f it, taking into account the needs of the case, the amount in controversy, th e parties' resources, the importance of the issues at stake in the litigation, and th e importance of the proposed discovery in resolving the issues. F e d . R. Civ. P. 26(b)(2)(C). Under Rule 26(c), "[t]he court may, for good cause, issue an o rd e r to protect a party or person from annoyance, embarrassment, oppression, or undue b u rd e n or expense ..." "Rule 26(c) confers broad discretion on the trial court to decide when -2-

a protective order is appropriate and what degree of protection is required." Seattle Times C o . v. Rhinehart, 467 U.S. 20, 36 (1984). The matter of the "apex deposition" was thoughtfully discussed in Minter v. Wells F a r g o Bank, N.A., 258 F.R.D. 118 (D. Md. 2009). Rule 26(c) requires a the moving party to demonstrate"good cause." [ C ]o u rts have insisted on a particular and specific demonstration of f a c t, as distinguished from stereotyped and conclusory statements, in o rd e r to establish good cause. This recognizes that the existence of g o o d cause for a protective order is a factual matter to be determined f ro m the nature and character of the information sought by deposition o r interrogatory weighed in the balance of the factual issues involved in each action. .... Thus, the standard for issuance of a protective order is high. A motion s e e k i n g to prevent the taking of a deposition is regarded unfavorably by the co u rts, and it is difficult to persuade a court to do so. Static Control C o m p o n e n ts , Inc. v. Darkprint Imaging, 201 F.R.D. 431, 434 (M.D.N.C. 2001) ( "B y requesting the Court to prohibit plaintiff from deposing a witness, d e f en d a n t Darkprint assumes a heavy burden because protective orders which totally prohibit a deposition should be rarely granted absent extraordinary c irc u m sta n c e s.") (internal citations omitted); see also SEC v. SBM Investment C e rtific a te s, Inc., 2007 WL 609888 (D. Md. Feb. 23, 2007) (recognizing co u rts' general disfavor for completely prohibiting depositions). M in te r, 258 F.R.D. at 124-125 (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L . Marcus, Federal Practice & Procedure § 2035 (2d ed. 2009)). "[T]he apex deposition rule is intended to protect busy, high-level executives who la c k unique or personal knowledge," and "is bottomed on the apex executive lacking any k n o w le d g e of relevant facts." 258 F.R.D. at 126 (emphasis in original). As in this case, the d e f en d a n t in Minter argued that the court should issue a protective order when litigants a tte m p t to depose high-ranking executives "who have no personal knowledge of the subject m a tte r of the litigation." Id. at 125. The court observed, A witness cannot escape examination by claiming that he has no k n o w l e d g e of any relevant facts, since the party seeking to take the d e p o sitio n is entitled to test his lack of knowledge, but a different r e s u l t is sometimes reached when the proposed deponent is a busy -3-

g o v e rn m e n t official, or a very high corporate officer unlikely to have p e rs o n a l familiarity with the facts of the case. Id . (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice a n d Procedure, § 2037 (2d. 2009) (internal citations omitted)). Even assuming that Fr. Schlegel was not involved in the decision to terminate p la in tif f 's employment, the termination is but one issue in this case. The court finds and c o n c l u d e s that Fr. Schlegel is likely to possess information that is relevant to the parties' c la im s and defenses and discoverable under Rule 26(b)(1). The plaintiff is entitled to test F r . Schlegel's professed lack of knowledge T h a t said, the plaintiff is admonished to strictly limit his subjects of inquiry to facts re le v a n t to resolving the legal issues presented in this case.1 In his brief, plaintiff states that h e wishes to depose Fr. Schlegel on the topic of Fr. Schlegel's injuries suffered in a biking a c cid e n t and "why his personal injury and admitted impatience and distractions should be d if f ere n t than the Plaintiff's." (Doc. 54 at p. 3/9). The plaintiff may not depose Fr. Schlegel o n this topic, as it is not relevant to the parties' claims and defenses. The plaintiff is also fo rbid d en to interrogate Fr. Schlegel about his religious beliefs. Finally, considering Fr. S c h le g e l's schedule, his deposition shall be limited to two hours and shall be scheduled at a mutually convenient time between today's date and December 1, 2009. I T IS SO ORDERED. D A T E D October 15, 2009. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

An admonition appears necessary after reviewing the excerpts of plaintiff's deposition of Rev. Richard Hauser, S.J. (Doc. 59 at pp. 9-17/28) offered in support of Creighton's reply brief.

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