Kinzer et al v. Remington Arms Company, Inc. et al
Filing
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ORDER - Thomas L. Millner's Motion to Quash Subpoena to Testify at a Deposition in a Civil Action 1 is denied. The deposition may be rescheduled at the convenience of the parties and the deponent to occur on or before May 31, 2011, for a limited duration not to exceed four hours. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JANTZ H. KINZER and
JOHN W. CHERRY,
)
)
)
Plaintiffs,
)
)
vs.
)
)
REMINGTON ARMS COMPANY, INC. and)
SPORTING GOODS PROPERTIES, INC., )
)
Defendants.
)
8:11CV75
ORDER
This matter is before the court on non-party Thomas L. Millner’s Motion to Quash
Subpoena to Testify at a Deposition in a Civil Action (Filing No. 1) regarding the subpoena
served upon him by the plaintiffs in connection with a lawsuit pending in the Western
District of Oklahoma. Millner filed a brief (Filing No. 2) and an index of evidence (Filing No.
3) in support of the motion. The plaintiffs filed a brief (Filing No. 17) and an index of
evidence (Filing No. 18) in opposition to the motion. Millner filed a brief (Filing No. 24) in
reply. The defendants did not participate in briefing the motion to quash.
BACKGROUND
Millner’s motion, filed in the United States District Court for the District of Nebraska,
seeks to quash his deposition sought by the plaintiffs related to their lawsuit filed in the
United States District Court for the Western District of Oklahoma, Civil Action No.
5:09CV1242 (Kinzer Action). See Filing No. 2 - Brief p. 2-3. The Kinzer Action is a
putative national class action involving claims concerning Remington Model 700 bolt action
rifles and the design of Walker fire control systems. See Filing No. 3 - Ex. 1(D) Kinzer
Action Amended Complaint. The plaintiffs in the Kinzer Action seek certification of a
national class pursuant to theories of both express and implied warranties. Id.; see also
Filing No. 17 - Response p. 4-5. In the Kinzer Action, the plaintiffs have until July 1, 2011,
to file a motion for class certification. See Filing No. 3 - Ex. 1(E) Kinzer Action Scheduling
Order. The Scheduling Order set a deadline for discovery related to class certification, but
does not explicitly limit or provide for general discovery. Id. On February 9, 2011, the
Kinzer Action plaintiffs issued a subpoena to Millner commanding him to appear for a
deposition on March 29, 2011, at 9:30 a.m. at the Holiday Inn located in Sidney, Nebraska.
See Filing No. 3 - Ex. 1(A) Subpoena. Millner has not previously been deposed in the
Kinzer Action, however he has been deposed in a related action, captioned Trevor
Williams v. Remington Arms Co., Inc., Civil Action No. 3:05CV1383 (Williams Action).
See Filing No. 3 - Ex. 2 Millner Aff. ¶ 8.
The Williams Action was filed on July 14, 2005, in the United States District Court
for the Northern District of Texas. Id. Ex. 1 Wills Aff. ¶ 6 and Ex. 1(B) Williams Action
Amended Complaint. At issue in the Williams Action was the design of the Walker fire
control system. See Filing No. 2 - Brief p. 2; Filing No. 3 - Ex. 1(B) Williams Action
Amended Complaint. On June 14, 2007, Millner gave sworn deposition testimony. See
Filing No. 3 - Ex. C Millner Depo. The deposition, which was recorded stenographically
and videotaped, commenced at 9:21 a.m. and concluded at 5:26 p.m. Id. Representing
the plaintiffs in the Williams Action was Jeffrey W. Hightower of the law firm Barber
Hightower LLP and Timothy Monsees of the law firm Monsees Miller Mayer Presley &
Amick, PC. Id. The record reflects Mr. Monsees also represents the plaintiffs in the Kinzer
Action.
Millner provided the deposition testimony due to his association with Remington
Arms Company, Inc. (Remington). Millner began working at Remington in June 1994 as
president of the company. See Filing No. 3 - Ex. 2 Millner Aff. ¶ 7. In approximately 2001,
Mr. Millner became president and Chief Executive Officer (CEO). Id. In 2007, his title
changed to CEO. Id. In the June 14, 2007, deposition, Millner provided testimony about
his role at Remington and “his knowledge regarding, among other things, Remington Model
700 and Model 710 bolt action rifles, the Walker fire control system, testing on the fire
control system on Model 700 and 710 bolt action rifles, and Remington’s development and
adoption of the X-Mark Pro fire control system for Model 700 rifles.” See Filing No. 2 - Brief
p. 3 (citing generally Filing No. 3 - Ex. C Millner Depo.).
Millner left Remington in March 2009 to pursue a career as CEO of Cabela’s, Inc.
See Filing No. 3 - Ex. 2 Millner Aff. ¶¶ 4, 9.
As CEO of Cabela’s, Millner’s job
responsibilities include oversight of all operations of Cabela’s and its subsidiaries, including
World’s Foremost Bank, a large credit card banking operation chartered by Cabela’s.
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Id. ¶ 4. Millner is responsible for the day-to-day supervision of operations through
consultation with and direction over the entire Cabela’s management team. Id. In addition,
his job responsibilities entail extensive travel on a national and global basis to oversee
Cabela’s operations and in twenty-two states and in Canada. Id. In his affidavit Millner
attests, “I typically work at least eighty (80) hours per week.” Id. ¶ 5.
The affidavit further states:
10.
11.
I provided all information in my possession relating to
the Remington Model 700s bolt action rifles and the
Walker fire control system at the 2007 deposition. I
have not obtained any new information relating to the
Remington Model 700s bolt action rifles or the fire
control systems on these rifles since the 2007
deposition. All knowledge I have regarding these
issues I also had at the time my deposition was taken in
the Williams Action.
I have not worked in the firearm manufacturing industry
since I left Remington.
Id. ¶¶ 10-11.
Millner notes in his brief that he “has no knowledge not possessed by other
executives of Remington relating to the class certification motion.” See Filing No. 2 - Brief
p. 4. Additionally, “Remington began phasing out the Walker fire control system on the
Model 700 bolt action rifle in 2006 and by April 2007, the Walker fire control system was
only produced in limited numbers and in certain tactical and Remington Custom Shop
rifles.” Id. (citing Filing No. 3 - Ex. 3 Watkins Aff. ¶ 3). Finally, Millner notes counsel for
Remington in the Kinzer Action offered to stipulate that the plaintiffs in the Kinzer Action
may use Millner’s 2007 testimony from the Williams Action, as if taken in the Kinzer Action.
See Filing No. 2 - Brief p. 4-5.
ANALYSIS
Parties may discover any relevant, unprivileged information that is admissible at trial
or is reasonably calculated to lead to admissible evidence. See Fed. R. Civ. P. 26(b)(1).
Once the requesting party meets the threshold relevance burden, generally “[a]ll discovery
requests are a burden on the party who must respond thereto. Unless the task of
producing or answering is unusual, undue or extraordinary, the general rule requires the
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entity answering or producing the documents to bear that burden.” Continental Ill. Nat’l
Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation
omitted). Therefore, the party opposing discovery has the burden of showing its objections
are valid by providing specific explanations or factual support as to how such discovery is
improper. St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508,
511-12 (N.D. Iowa 2000) (objecting party has the burden to substantiate its objections).
The plaintiffs have met their burden of showing the requested deposition is relevant to the
plaintiffs’ claims and Millner does not dispute the relevance of the requested testimony.
Depositions are governed by Federal Rule of Civil Procedure 30. Pursuant to
Rule 30: “A party may, by oral questions, depose any person . . . . The deponent’s
attendance may be compelled by subpoena under Rule 45.” Fed. R. Civ. P. 30(a)(1). Rule
45, which allows for depositions of non-parties, imposes limitations on a party’s demand
for relevant testimony. Specifically,
A party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the
subpoena. The issuing court must enforce this duty and
impose an appropriate sanction--which may include lost
earnings and reasonable attorney’s fees--on a party or attorney
who fails to comply.
Fed. R. Civ. P. 45(c)(1).
The Rule also provides a mechanism for a subpoenaed person to challenge the
requirements of a subpoena as follows: “On timely motion, the issuing court must quash
or modify a subpoena that: . . . (iv) subjects a person to undue burden.” Fed. R. Civ. P.
45(c)(3)(A). Rule 45(c)(3) “tracks the provisions of Rule 26(c)” and is meant to protect a
witness from a misuse of subpoena power. Fed. R. Civ. P. 45(c)(3) advisory committee’s
note (1991 amend.). Accordingly,
The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including one or more of the
following:
(A)
forbidding the disclosure or discovery;
(B)
specifying terms, including time and
place, for the disclosure or discovery;
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(C)
(D)
prescribing a discovery method other than
the one selected by the party seeking
discovery; [and]
forbidding inquiry into certain matters, or
limiting the scope of disclosure or
discovery to certain matters; . . . .
Fed. R. Civ. P. 26(c).
In order to make the requisite showing of good cause, the moving party must make
“a particular and specific demonstration of fact, as distinguished from stereotype and
conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981); see
Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d
922, 926 (8th Cir. 1999). Thus, for good cause to exist, the parties seeking protection must
show that specific prejudice or harm will result if no protection is granted. See Frideres
v. Schiltz, 150 F.R.D. 153, 156 (S.D. Iowa 1993). Such determination must also include
a consideration of the relative hardship to the non-moving party should the discovery be
denied. See General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir.
1973) (citing United States v. Kordel, 397 U.S. 1, 4-5 (1970)). The court has discretion
to limit or broaden the scope of discovery, if it has a good reason to do so. Credit
Lyonnais v. SGC Int’l, Inc., 160 F.3d 428, 431 (8th Cir. 1998). Under the rules for any
discovery in a civil matter, and for depositions, in particular, the court may further limit
discovery if it determines:
(i)
(ii)
(iii)
the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
the party seeking discovery has had ample opportunity
to obtain the information by discovery in the action; or
the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the action, and
the importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C); see also Fed. R. Civ. P. 30(a)(2) and (d)(2).
Millner argues, that due to his work schedule, having him attend a deposition for the
Kinzer Action will subject him to a heavy, unnecessary, and undue burden. See Filing No.
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2 - Brief p. 6. Millner asserts that because he is a “top corporate executive,” the time he
would take out of his work to prepare for and attend the deposition would disrupt the
business of his employer, a non-party. Id. at 6-7. Millner contends the deposition is
unnecessary because of the extensive deposition undertaken in the Williams Action, during
which he answered questions about the Model 700 rifle, including the fire control
mechanism. Id. at 7; Filing No. 24 - Reply p. 3-4. Millner argues the underlying premise
for each of the two actions is the same–the alleged design defect in the Walker fire control
system, regardless of the legal theories plead. See Filing No. 24 - Reply p. 4-6. Millner
suggests the plaintiffs may obtain the information they need through less intrusive means
such as utilizing the Williams Action deposition and deposing current Remington
employees. See Filing No. 2 - Brief p. 7. Moreover, Millner denies he has any new
relevant testimony to give. Id. at 8. Finally, Millner argues the deposition is premature
given the Kinzer Action’s progression order, which only provides deadlines related to class
action discovery. Id.
The plaintiffs contend the benefit of Millner’s testimony to the potential class
outweigh his burden of appearing for the deposition. See Filing No. 17 - Response p. 2.
First, the plaintiffs argue Millner is the individual with the most knowledge concerning
complaints of the Model 700 and Remington’s response to those complaints. Id. The
plaintiffs assert Millner’s previous deposition is evidence of Millner’s unique and intimate
knowledge of relevant facts. Id. at 3. However, Millner’s earlier deposition did not address
the Kinzer Action’s theories of recovery or the same product at issue. Id. Moreover, the
plaintiffs contend there is no other person who would be available to testify about the
issues because Remington’s chief engineer suffered a devastating illness in 2009. Id.
Second, the plaintiffs argue the new testimony would not be duplicative because it relates
to different claims for relief. Id. at 4. The plaintiffs assert the new deposition is needed to
address issues related to express and implied warranties, warranty claims, and warranty
returns, which were not covered earlier. Id. at 4-5. The plaintiffs describe differences
between the Williams Action and the Kinzer Action, including that the Williams Action
involved a stand-alone product liability case for injuries suffered by an individual as a result
of a defect in the Model 710 rifle. Id. at 5. Finally, the plaintiffs argue Millner’s testimony
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is relevant to the plaintiffs’ anticipated motion for class certification, rather than merely
general discovery on the merits. Id. at 7. The plaintiffs suggest limitations may be
imposed on the deposition to minimize the burden on Millner. Id. at 5-6. However, the
plaintiffs do not suggest any specific limitations to address the concerns raised by Millner.
The court finds, based on balancing the parties’ competing interests in this matter,
the plaintiffs may depose Millner. Millner failed to show he will suffer undue burden in
terms of unusual expense, disruption, or inconvenience. Thus, Millner failed to meet his
burden of showing that appearing for the requested deposition would be unduly prejudicial.
The plaintiffs plan to take the deposition near Millner’s regular place of employment.
Although, Millner may travel for his employment, Millner and the parties may schedule the
deposition around such travel. The plaintiffs show how the deposition testimony is relevant
and necessary due to the difference between the Williams Action and the Kinzer Action.
Further, there appears no other more convenient or less burdensome means exists to
obtain the testimony, which was not covered in the Williams Action deposition. The likely
importance of the discovery to the issues and action outweigh the burden to Millner.
However, because Millner has been extensively deposed on many of the relevant issues,
the Kinzer Action deposition will be limited in time to four hours. Furthermore, the
deposition may be rescheduled at the convenience of the parties and the deponent to
occur on or before May 31, 2011. Upon consideration,
IT IS ORDERED:
Thomas L. Millner’s Motion to Quash Subpoena to Testify at a Deposition in a Civil
Action (Filing No. 1) is denied. The deposition may be rescheduled at the convenience of
the parties and the deponent to occur on or before May 31, 2011, for a limited duration
not to exceed four hours.
DATED this 3rd day of May, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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