Ribeiro et al v. Baby Trend, Inc.
Filing
421
ORDER that Plaintiffs' motion to quash (Filing No. 395 ) is granted. Defendants motion to compel (Filing No. 386 ) is denied. Counsel are to meet and confer to schedule depositions in a manner consistent with this order. Ordered by Magistrate Judge F.A. Gossett. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRANCO RIBEIRO and DEANNA
RIBEIRO, as individuals and as next
friends and biological parents of
Lucas Ribeiro, an infant,
Plaintiffs,
v.
BABY TREND, INC., a corporation,
MARK SEDLACK, MILLENIUM
DEVELOPMENT CORP., INDIANA
MILLS & MANUFACTURING INC.,
LERADO GROUP CO., LTD.,
LERADO GROUP
(HOLDING)
COMPANY,
LTD.,
LERADO
(ZHONG SHAN) INDUSTRIAL CO.,
LTD., LERADO CHINA LIMITED,
LERADO
H.K.
LIMITED,
HOLMBERGS SAFETY SYSTEM
HOLDING AB, GNOSJOGRUPPEN
AB, HOLMBERGS CHILDSAFETY
AB, GNOTEC REFTELE AB, Maxi
MILIAAN
B.V.,
and
DOREL
INDUSTRIES, INC.,
Defendants.
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8:12CV204
ORDER
This matter is before the court on the motion to compel Plaintiffs’ depositions
(Filing No. 386) filed by Defendants Baby Tend, Inc., Mark Sedlack, and Millenium
Development Corp. (collectively, “Defendants”) and the motion to quash (Filing No.
395) filed by Franco Ribeiro and Deanna Ribeiro, Plaintiffs. For the reasons explained
below, the court will deny Defendants’ motion and grant Plaintiffs’ motion.
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On January 22, 2016, Plaintiffs’ counsel sent Fed. R. Civ. P. 30(b)(6) deposition
notices to counsel for Defendants and requested that Defendants provide dates on which
they would be available to be deposed. (Filing No. 387-4 at p. 3). Defendants sent
deposition notices for Plaintiffs to their counsel on February 29, 2016. (Filing No. 387-8
at p. 1). Between January 27, 2016, and March 9, 2016, counsel for Defendants and
Plaintiffs exchanged numerous emails and telephone calls regarding scheduling of
depositions and a nondestructive inspection of the car seat at issue in the instant case.
(Filing No. 387-3 to Filing No. 387-16; Filing No. 398-2 to Filing No. 398-12). Counsel
could not agree on the order in which the parties’ depositions and nondestructive
inspection would occur. Defendants sought to be deposed after the nondestructive
inspection of the car seat and after Plaintiffs are deposed. (Filing No. 387-5 at p. 2).
Counsel for Plaintiffs “won’t negotiate” on the issue that Plaintiffs be deposed last and
would not schedule the nondestructive inspection until depositions were scheduled.
(Filing No. 387-5 at p. 1; Filing No. 399-11 at p. 1). This court granted Defendants’
motion to compel the Plaintiffs to make the car seat available for a nondestructive visual
inspection on April 6, 2016. (Filing No. 408). The motions presently before the court
relate to the scheduling of depositions.
Plaintiffs filed the instant motion to quash because Defendants unilaterally
scheduled Plaintiffs’ depositions for Friday, April 22, 2016, and have refused to provide
dates for Plaintiffs to take Defendants’ depositions. (Filing No. 382; Filing No. 383). A
subpoena may be quashed or modified if it subjects a person to undue burden. Fed. R.
Civ. P. 45(d)(3)(A)(iv). Plaintiff Deanna Ribeiro submitted an affidavit averring she
works Tuesdays through Saturdays and is scheduled to work on April 22, 2016. Deanna
has used all her paid time off to care for Lucas and would lose needed income for their
household if compelled to appear on the scheduled date. (Filing No. 418-2). The court
finds that the deposition scheduled for April 22, 2016, will subject Plaintiffs to an undue
burden and therefore finds the motion to quash should be granted. Counsel are ordered
2
to meet and confer to schedule Plaintiffs’ depositions on a date convenient for both
parties.
Remaining is the issue of the order in which depositions should occur. Both
parties have taken the unwavering position that they be deposed last. Under Fed. R. Civ.
P. 26(d), “Unless the parties stipulate or the court orders otherwise for the parties’ and
witnesses’ convenience and in the interests of justice: (A) methods of discovery may be
used in any sequence; and (B) discovery by one party does not require any other party to
delay its discovery.” Fed. R. Civ. P. 26(d). Rule 26(d) eliminates any fixed priority in
the sequence of discovery, including the rule developed by courts conferring priority on
the party to first serve notice of taking depositions. See Committee Note to 1970
amendment of Rule 26(d), 48 F.R.D. 487, 507 (1969); The Former Priority Rule, 8A
Fed. Prac. & Proc. Civ. § 2045 (3d ed.). District courts have broad discretion to limit
discovery and decide discovery motions. Pavlik v. Cargill, Inc., 9 F.3d 710, 714 (8th
Cir. 1993).
Plaintiffs contend that because they requested to take Defendants’ depositions first
this court should order that Defendants depositions be taken first. (Filing No. 397 at pp.
3-4). Defendants assert they will be unduly burdened and prejudiced in defending
Plaintiffs’ products liability claim if Plaintiffs are deposed last because Defendants need
to confirm the facts of the underlying incident and investigate Plaintiffs’ allegations
surrounding the car seat relevant to Defendants’ affirmative defenses of misuse and
contributory negligence.
(Filing No. 405 at pp. 6-7).
Neither party presents a
particularly compelling reason why this court should order that they be deposed last.
Rather, given the age of this case, the numbers of parties with difficult-to-coordinate
schedules, and the pending July 1, 2016, deposition deadline, counsel should endeavor to
schedule depositions in a manner to best expedite the discovery process and progress the
case. Nevertheless, as it is apparent the parties will be unable to resolve the issue, the
court finds Plaintiffs are entitled to schedule their depositions of Defendants first.
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Counsel for both parties are ordered to exchange their available dates for depositions as
soon as practicable. Accordingly,
IT IS ORDERED:
1. Plaintiffs’ motion to quash (Filing No. 395) is granted.
2. Defendants’ motion to compel (Filing No. 386) is denied.
3. Counsel are to meet and confer to schedule depositions in a manner consistent with
this order.
DATED: April 15, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge
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