Petrone v. Werner Enterprises, Inc. et al

Filing 220

ORDER denying (207) Motion for Protective Order in case 8:11-cv-00401-LES-FG3; denying (110) Motion for Protective Order in case 8:12-cv-00307-LES-FG3. Plaintiffs' motion for a protective order is denied. No later than April 15, 2014, plaint iffs shall produce the six noticed class members for depositions by defendants counsel. Counsel for the parties shall make a good faith efforts to accommodate each other's conflicts in scheduling the additional depositions. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

ORDER

This matter is before the Court on the motion of
plaintiffs for a protective order or, in the alternative,
extending the discovery period by 60 days (8:11CV401, Filing No.
207; 8:12CV307, Filing No. 110).
Plaintiffs contend that defendants’ failure to pursue
discovery in a timely manner has led to an untenable situation in
which plaintiffs’ counsel has been asked to set six additional
depositions in the last four weeks of discovery.

Scheduling the

depositions is particularly difficult because the six proposed
deponents live in five different states.

Additionally

compounding the difficulty of meeting defendants’ request is
defendants’ proposal to hold three of the depositions when
plaintiffs’ counsel will be in San Francisco to defend the
deposition of plaintiffs’ expert in this case and plaintiffs’
counsel’s prior scheduling of a deposition in another matter.
Plaintiffs refer to the standard in Federal Rule of
Civil Procedure 26(c)(1) for the issuance of a protective order:
“The court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense . . . .”

Though plaintiffs do not precisely

identify which of the enumerated situations applies to the issue
at hand, the general tenor of their brief suggests that they
believe scheduling of the depositions in the last four weeks of
discovery represents an undue burden or oppression.
The six deponents are class members that defendants
have chosen to serve as a sample of a class comprising over
50,000 members.

Ongoing discovery matters have contributed to

the need to take the final set of depositions in the final month
of discovery.

Plaintiffs did not disclose any class members

other than the named plaintiffs as individuals likely to have
discoverable information in their 26(a) disclosures or in 26(e)
supplements.

However, on February 28, 2014 -- the same day on

which defendants made their requests to depose the six class
-2-

members -- plaintiffs filed a proposed witness list that included
28 class members.

In October, defendants attempted to identify a

useful set of class members for deposition by selecting a sample
of 100 class members for written interrogatories.

After some

negotiation, defendants re-served the interrogatory request on
January 21, 2014; plaintiffs waited until February 21, 2014, to
lodge an objection to the entirety of the re-drafted
interrogatories and refused to answer.

One week later,

defendants selected class member deponents without the benefit of
the interrogatory answers in an attempt to complete the
depositions before the end of discovery.
Plaintiffs’ counsel assured the Court that it had the
experience and resources to adequately represent the class.
Intensified pursuit of information in the final months of
discovery is not unusual, nor does it appear that defendants have
been less than diligent in their pursuit of an appropriate group
of class members to depose.

Further, plaintiffs’ counsel insists

that a single attorney from counsel’s firm, who is apparently
also working on other cases with conflicting schedules, must
attend each of the depositions.

Given the size and complexity of

the case and given that defendants have agreed to extend the
deadline for the proposed depositions to April 15, 2014, the
Court does not find that conducting six additional depositions in
-3-

the final six weeks of discovery constitutes an undue burden or
oppression.

Finally, because defendants have agreed, the Court

will extend the deadline for said depositions to April 15, 2014;
any further extension would prejudice the defendants in preparing
any motions for summary judgment or class decertification which
are due June 2, 2014.

Accordingly,

IT IS ORDERED:
1) Plaintiffs’ motion for a protective order is denied.
2) No later than April 15, 2014, plaintiffs shall
produce the six noticed class members for depositions by
defendants’ counsel.
3) Counsel for the parties shall make a good faith
efforts to accommodate each other’s conflicts in scheduling the
additional depositions.
DATED this 7th day of March, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-4-