Balderrama v. City of Alamogordo et al
Filing
61
ORDER by Magistrate Judge Gregory B. Wormuth granting in part 51 Motion for Protective Order. Defendants must submit Affidavit for Attorneys Fees no later than December 14, 2018. Plaintiff's objections (if any) must be filed no later than December 21, 2018. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDWARDO BALDERRAMA,
Plaintiff,
v.
Civ. No. 18‐134 KRS/GBW
CITY OF ALAMOGORDO, et al.,
Defendants.
ORDER GRANTING IN PART MOTION FOR PROTECTIVE ORDER AND
ORDERING PAYMENT OF FEES
This matter comes before the Court on Defendants’ Motion for Protective Order
and the attendant briefing. Docs. 51, 56, 57, 58. For the reasons that follow, the Court
hereby GRANTS in part Defendants’ Motion for Protective Order (doc. 51).
On October 5, 2018, Defendants filed a Motion to Stay (doc. 40), pending
resolution of Defendants’ Motion for Summary Judgment Based on Qualified Immunity
(doc. 39). In Plaintiff’s Response to Defendants’ Motion to Stay, and in Plaintiff’s Rule
56(d) Response to Defendants’ Motion for Summary Judgment (doc. 41), Plaintiff sought
an exception to the discovery stay that would allow Plaintiff to continue to conduct
limited depositions, and argued that these depositions would not be unduly
burdensome on Defendants because “all discovery directly related to the remaining
depositions granted by the Magistrate Judge would not require Defendants to search for
and produce responsive information because documents discovery has already been
completed.” Doc. 42 at 3.
On October 24, 2018, the Court entered an Order that stayed discovery in the
instant case but provided for a limited exception in which Plaintiff could nevertheless
conduct the depositions of Katie Josselyn and Brian Cesar and reopen the deposition of
Margaret Paluch. Doc. 46. The Court made no allowance for continued document
discovery. See id. Despite the limited confines of the Court’s discovery allowance, on
November 9, 2018, Plaintiff served an Amended Notice of Rule 30(b)(6) Deposition of
Katie Josselyn on Defendants, requesting document production in conjunction with that
deposition. See doc. 51‐2 at 2‐4.
Counsel for Defendants responded to Plaintiff by email the same day, noting that
the document production requests in the Amended Notice were contrary to the Court’s
limited discovery stay exception and contrary to the rules of civil procedure. Doc. 51‐3.
At that time, Defendants suggested rescheduling the deposition in light of the dispute.
Id. Plaintiff’s counsel failed to respond to Defendants’ email, so Defendants followed
up on November 13, 2018. Id. In his response on November 13, 2018, and in subsequent
communications, Plaintiff’s counsel persisted in stating that he expected documents to
be produced at the deposition, which would proceed as scheduled. Docs. 51‐4‐9.
Consequently, on the evening of November 13, 2018, Defendants filed the instant
Motion for Protective Order and Notice of Non‐Appearance of Katie Josselyn. Doc. 51.
In their Motion, Defendants argue that, by manufacturing a discovery dispute shortly
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before the date of the deposition, Plaintiff waived his right to depose Ms. Josselyn. Doc.
51 at 4. In addition, Defendants seek a protective order against providing the
documents requested in Plaintiff’s Amended Notice of Deposition, and request that the
Court grant Defendants the fees and costs associated with the Motion and any other
relief the Court deems just. Id.
In his Response, Plaintiff contends that Defendants waived their right to object to
the document requests, because Defendants did not object to the initial October 3, 2018
Notice of Deposition Duces Tecum, but only objected to the November 9, 2018
Amended Notice. Doc. 56. However, as Defendants note in their Reply, the discovery
stay was not implemented until October 24, 2018, and the Court’s Order made clear that
the exception to the discovery stay was limited to deposing Brian Cesar, Margaret
Paluch, and Katie Josselyn. See generally docs. 46, 58. Further, in order to secure this
exception to the discovery stay, Plaintiff stated that he would not require document
discovery. Doc. 42 at 3.
Under these circumstances, it is clear that Plaintiff may not seek document
production pursuant to Rule 30 (or any other Rule of Civil Procedure) while the
discovery stay is in place. Plaintiff’s demand for documents in connection with the
remaining 30(b)(6) deposition is hereby stricken. Nonetheless, the Court will not go so
far as to find that Plaintiff has waived his right to depose Ms. Josselyn. That deposition
should be conducted promptly and without further delay.
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Finally, having ruled on this discovery dispute, the next question is whether
costs and fees should be awarded. Upon resolution of motions to compel, the “losing”
party must be required to pay the reasonable expenses incurred in making or opposing
the motion. See Fed. R. Civ. P. 26(c)(3); Fed. R. Civ. P. 37(a)(5). However, this payment
shall not be required if (i) the prevailing party failed to make a good faith effort to
obtain the disclosure without court action; (ii) the “losing” party’s grounds were
“substantially justified” or (iii) the “circumstances make an award of expenses unjust.”
Id. Defendant is the prevailing party1 and the Court does not find any of these
exceptions applicable. Therefore, Plaintiff must pay to Defendants those reasonable
attorney’s fees and costs associated with their briefing of this Motion.
THEREFORE, IT IS HEREBY ORDERED that Defendants’ Motion is
GRANTED IN PART as described above. Defendants shall submit an Affidavit for
Attorney’s Fees no later than December 14, 2018. Should Plaintiff object to the
requested fees, such objections must be filed no later than December 21, 2018.
____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
Defendants’ motion was not granted in its entirety because the Court did not impose one of the
requested sanctions – waiver of the 30(b)(6) deposition. Nonetheless, Defendants were the “prevailing
party” on all substantive issues. Moreover, even if the Court applied Fed. R. Civ. P. 37(a)(5)(C) to this
circumstance, it would find that all reasonable expenses should be apportioned to Plaintiff.
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