Begay v. United Stated of America
Filing
166
MEMORANDUM OPINION by District Judge James O. Browning granting the United States of America's Motion for Protective Order 80 . (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LYDELL MARVIN BEGAY,
MARTIN (“MARTY”) BEGAY, and
LORENE BEGAY,
Plaintiffs,
vs.
No. CIV 15-0358 JB/SCY
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION1
THIS MATTER comes before the Court on The United States of America’s Motion for
Protective Order, filed November 23, 2016 (Doc. 80)(“Motion”). The Court held a hearing on
December 6, 2016. The primary issue is whether the deposition of Jodene Butler, a Defendant
United States of America employee, should take place at the office of the Plaintiffs’ counsel in
Albuquerque, New Mexico, or in Shiprock, New Mexico, where Butler works. The Court
concludes that the deposition should take place in Shiprock, not in Albuquerque, so the Court
grants the Defendant United States of America’s Motion. The Court concludes that Butler’s
deposition should take place in Shiprock instead of Albuquerque, because “when the plaintiff
sets the deposition of a corporate defendant’s employee, the employee is entitled to have his
deposition taken at his residence or where he works.” Gulfstream Worldwide Realty, Inc. v.
Philips Elects. N.A. Corp., No. CIV 06-1165, 2007 WL 5704041, at *5 (D.N.M. Oct. 27,
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On September 19, 2017, the Court issued an Order granting The United States of
America’s Motion for Protective Order, filed November 23, 2016 (Doc. 80). Order at 2, filed
September 19, 2017 (Doc. 128)(“Order”). In that Order, the Court stated that it would at a later
date issue a memorandum opinion “more fully detailing its rationale for its decision.” Order at 1
n.1. This Memorandum Opinion the promised product.
2007)(Browning, J.).
FACTUAL BACKGROUND
In March 2014, Plaintiff Lydell Marvin Begay visited the emergency room at the
Northern Navajo Medical Center in Shiprock. See Complaint for Damages ¶ 2, at 1-2, filed
April 28, 2015 (Doc. 1)(“Complaint”). According to the Plaintiffs, “[a]s a result of Defendant’s
negligent medical care, misdiagnosis and failure to adequately credential, staff, or supervise the
emergency room at NNMC, Lydell Begay suffered catastrophic and permanent injuries, injuries
that have all but taken this young man’s life away.” Complaint ¶ 4, at 2. Also according to the
Plaintiffs, “the physician who treated Lydell Begay, Annicol Marrocco, M.D., was acting under
restricted medical licenses and required close supervision,” but “NNMC provided no such
supervision.” Complaint ¶ 3, at 2.
PROCEDURAL BACKGROUND
On April 27, 2015, the Plaintiffs filed their Complaint. See Complaint at 13. On
November 15, 2016, the “Plaintiffs noticed the deposition of Jodene Butler, who worked at the
Northern Navajo Medical Center,” and they sought to depose her in Albuquerque. Motion at 1.
On November 23, 2016, the United States filed its Motion, see Motion at 3, seeking “a protective
order preventing the taking of the deposition of Jodene Butler . . . [on] December 1, 2016, at 10
a.m. in Albuquerque, New Mexico,” Motion at 1. The United States argues that a protective
order is appropriate, because “the general rule [is] that the deposition of a corporate employee
should be taken at the corporation’s principal place of business.” Motion at 2 (citing Gulfstream
Worldwide Realty, Inc. v. Philips Elects. N.A. Corp., 2007 WL 5704041, at *5).
The Court held a hearing on December 6, 2016. At that hearing, the Court expressed an
inclination to grant the Motion, and the Plaintiffs indicated that they would be willing to take
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Butler’s deposition in Shiprock. See Draft Transcript of Motion Hearing (taken December 6,
2016) at 2:17-4:13 (Court, Zedalis)(“Tr.”).2 On December 15, 2016, the Plaintiffs served a new
“Notice of Deposition Duces Tecum of Jodene Butler” on the United States. Certificate of
Service at 1, filed December 16, 2016 (Doc. 86)(not providing the date of the noticed deposition
to the Court).
On January 13, 2017, the Plaintiffs served a “Second Amended Notice of
Deposition Duces Tecum of Jodene Butler.” Certificate of Service, filed January 13, 2017 (Doc.
90)(not providing the date of the noticed deposition to the Court). Six days later, the Plaintiffs
withdrew that notice. See Plaintiffs’ Notice of Withdrawal of Notice of Deposition Duces
Tecum of Jodene Butler at 1, filed January 19, 2017 (Doc. 94). On February 3, 2017, the
Plaintiffs served a “Third Amended Notice of Deposition Duces Tecum of Jodene Butler.”
Certificate of Service at 1, filed February 3, 2017 (Doc. 100)(not providing the date of the
noticed deposition to the Court). There is no indication that Butler’s deposition did not proceed
as noticed.
LAW REGARDING PROTECTIVE ORDERS
“Federal district courts have broad discretion over discovery.” Morales v. E.D. Etnyre &
Co., 229 F.R.D. 661, 662 (D.N.M. 2005)(Browning, J.). The trial court has discretion to grant a
protective order pursuant to rule 26(c) of the Federal Rules of Civil Procedure. See Morales v.
E.D. Etnyre & Co., 229 F.R.D. at 663. Rule 26(c) provides that, upon a showing of good cause,
a court may “issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense,” which may include forbidding disclosure or discovery.
Fed. R. Civ. P. 26(c)(1)(A). Accord Miller v. Regents of the Univ. of Colo., 188 F.3d 518
(Table), 1999 WL 506520, at *12 (10th Cir. 1999)(“The district court is in the best position to
2
The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited versions. Any final transcript may contain slightly different page and/or line numbers.
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weigh these variables and determine the appropriate limits because, unlike an appellate court, the
district court has the ability to view firsthand the progression of the case, the litigants, and the
impact of discovery on parties and nonparties.”).
“It is the party seeking the protective order who has the burden to show good cause for a
protective order.”
Velasquez v. Frontier Med. Inc., 229 F.R.D. 197, 200 (D.N.M.
2005)(Browning, J.). The party seeking the protective order must submit “a particular and
specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981)(internal quotation marks omitted).
Although rule 26(c) is silent regarding the time within which the movant must file for a
protective order, “the United States Court of Appeals for the Tenth Circuit has held that a motion
under rule 26(c) for protection . . . is timely filed if made before the date set for production.”
Montoya v. Sheldon, No. CIV 10-0360, 2012 WL 2383822, at *5 (D.N.M. June 8, 2012)(internal
quotation marks and brackets omitted)(citing In re Coordinated Pretrial Proceedings in
Petroleum Prods. Antitrust Litig., 669 F.2d 620, 622 n.2 (10th Cir. 1982)).
LAW REGARDING DEPOSITION LOCATIONS
Although the examining party generally designates the location for the deposition of
another party under rule 30(b) of the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 30(b),
a court may grant a protective order to appoint a different place under rule 26(c)(2), see Fed. R.
Civ. P. 26(c)(2). See also Schindler Elevator Corp. v. Otis Elevator Co., No. CIV 06-5377, 2007
WL 1771509, at *8 (S.D.N.Y. June 18, 2007)(Katz, J.)(noting that “the decision as to the
location of the deposition lies with the discretion of the Court”). Rule 26(c)(2) enables a court to
issue a protective order to protect a party from “undue burden or expense.” Fed. R. Civ. Proc.
26(c). When making the determination of whether a protective order is proper, “[t]he trial court
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has great discretion in establishing the time and place of a deposition.” Sheftelman v. Standard
Metals Corp., 817 F.2d 625, 628 (10th Cir. 1987). Because the Plaintiff has greater influence
over the choice of forum, “courts are more willing to protect [a] defendant from having to come
to the forum for the taking of his or her deposition than they are in the case of plaintiffs.”
O’Sullivan v. Rivera, 229 F.R.D. 187, 189 (D.N.M. Sep. 20, 2004)(Browning, J.)(internal
quotation marks omitted). “As a general policy, the Court encourages parties to set depositions
in mutually agreeable locations.” Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242
F.R.D. 1, 5-6 (D.D.C. 2007)(Lamberth, J.).
As explained in Metrex Research Corp. v. United States, 151 F.R.D. 122 (D. Colo. 1993),
“[i]n the absence of exceptional or unusual circumstances, when a deponent resides at a
substantial distance from the deposing party’s residence, the deposing party should be required to
take the deposition at a location in the vicinity in which the deponent resides, even if the
deponent is a party.” 151 F.R.D. at 125. Thus, “when the plaintiff sets the deposition of a
corporate defendant’s employee, the employee is entitled to have his deposition taken at his
residence or where he works.” Gulfstream Worldwide Realty, Inc. v. Philips Elects. N.A. Corp.,
2007 WL 5704041, at *5. See Valencia v. Colorado Cas. Ins. Co., No. CIV 06-1259, 2007 WL
5685360, at *5 (D.N.M Dec. 8, 2007). See also Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626.
644 (D. Kan. 1999)(Rushfelt, M.J.); County Council of Northampton County v. SHL
Svstemhouse Corp., No. CIV 98-0088, 1999 WL 269918, at *2 (E.D. Pa. Apr. 20, 1999)(Rueter,
M.J.)(“The deposition of a corporate agent or officer should ordinarily be held at the principal
place of business.”).
ANALYSIS
Ordinarily, “when the plaintiff sets the deposition of a corporate defendant’s employee,
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the employee is entitled to have his deposition taken at his residence or where he works.”
Gulfstream Worldwide Realty, Inc. v. Philips Elects. N.A. Corp., 2017 WL 5704041, at *5. The
Plaintiffs have not identified any reason why Butler’s deposition should depart from that general
rule. Indeed, at the December 6, 2016 hearing, the Plaintiffs agreed to take Butler’s deposition in
Shiprock instead of in Albuquerque. See Tr. at 3:21-4:13 (Zedalis). Accordingly, the Court
concludes that holding Butler’s deposition in Shiprock is appropriate.
IT IS ORDERED that The United States of America’s Motion for Protective Order, filed
November 23, 2016 (Doc. 80), is granted.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Seth T. Cohen
Cynthia Zedalis
Cohen & Zedalis LLP
Santa Fe, New Mexico
-- and -Margaret Moses Branch
Branch Law Firm
Albuquerque, New Mexico
Attorneys for the Plaintiffs
James A. Tierney
Acting United States Attorney
Erin Langenwalter
Christopher F. Jeu
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Defendant
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