Hare v. Baur et al

Filing 122

ORDER DENYING PLAINTIFF'S AMENDED MOTION FOR PROTECTIVE ORDER by Magistrate Judge Gregory J. Fouratt denying 102 Amended Motion for Protective Order. (nmh)

Case 2:19-cv-01091-RB-GJF Document 122 Filed 10/15/20 Page 1 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
THOMAS HARE,
Plaintiff,
v.

Civ. No. 19-1091 RCB/GJF

BEN BAUR, Chief Public Defender, State
of New Mexico Law Offices of the Public
Defender, et al.,
Defendants.
ORDER DENYING PLAINTIFF’S
AMENDED MOTION FOR PROTECTIVE ORDER
THIS MATTER is before the Court on Plaintiff’s “Amended Motion for Protective Order
Under Fed. R. Civ. Pro. 26(c) or Alternatively to Terminate Defendants’ Noticed Deposition Under
Fed. R. Civ. Pro. 30(d)(3)(A)” [ECF 102] (“Motion”). The Motion is fully briefed. See ECF 108
(response); ECF 115 (reply). For the reasons stated below, Plaintiff’s Motion is DENIED.
I.

RELEVANT BACKGROUND AND PROCEDURE

Plaintiff, Thomas Hare, is an attorney proceeding pro se. ECF 1. Plaintiff brought claims
against Defendants Bennett Baur, Jennifer Birmingham, Michelle Haley, James Walker, and the
State of New Mexico Law Offices of the Public Defender (“LOPD”) under Title VII of the Civil
Rights Act, 42 U.S.C. §§ 2000e–2000e-17, 42 U.S.C. § 1981, N.M. Stat. §§ 30-13-3, 41-4-1 to 414-30, and 41-7-1 to 41-7-6. Id. at 3. The Court has since dismissed Plaintiff’s state law claims
under Sections 41-4-1–30 and 41-4-1–6 with respect to Defendants Birmingham, Walker, and
Haley. ECF 85 at 5 n. 3. But because it was “unclear from his Complaint whether [Plaintiff]
intend[ed] to bring claims under the [New Mexico Tort Claims Act] against Defendants Baur or
LOPD,” Plaintiff’s state law claims were not dismissed against them. Id.

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Discovery closed on September 11, 2020, and Plaintiff’s deposition has yet to be taken.
ECF 28. On July 15, 2020, Defendants attempted to schedule a deposition with Plaintiff. ECF 1081. Plaintiff responded on July 20, 2020, by advising that he did not “have any availability from
August 10, 2020 through September 11, 2020” due to his professional commitments. ECF 108-2
at 2. Judge Brack has previously ordered Plaintiff to “work with Defendants in good faith to find
a date for his deposition before discovery ends.” ECF 85 at 7. Judge Brack has also advised Plaintiff
that if he either was unable or refused to “schedule his deposition before the expiration of
discovery, he should fully expect that discovery will be extended for that express purpose and that
sanctions are available to the Court.” Id.
In the document titled “Plaintiff’s Objections to Judge Brack’s Memorandum Order and
Opinion Issued as Document 85 of the Record,” Plaintiff indicated that he was “prepared to sit for
the deposition on” either September 4, 2020, or September 11, 2020. ECF 87 at 9. On August 20,
2020, Defendants requested that Plaintiff appear for a deposition on September 4, 2020. ECF 101
at 13. Plaintiff objected to Defendants’ request on three bases: (1) Defendants attempted to
schedule the deposition via email although they were aware that Plaintiff does not have internet
access; (2) the scheduling letter required Plaintiff to respond within three days—which was not
possible considering he can only correspond via mail; and (3) the scheduling letter did not address
Plaintiff’s concerns that the deposition would seek information related to his state tort claims. ECF
101 at 16. On August 26, 2020, Defendants noticed Plaintiff’s deposition for September 11, 2020.
ECF 101 at 10.

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The present Motion was filed on September 11, 2020. ECF 101.1 Therein, Plaintiff asks
the Court to terminate the noticed September 11, 2020 deposition. ECF 102. In addition, Plaintiff
requests that he be granted a protective order, under Federal Rules of Civil Procedure 26(c) and
30(d)(3)(A), prohibiting Defendants from taking his deposition. In the alternative, Plaintiff asks
the Court to limit the scope of his deposition to preclude discussion of Plaintiff’s dismissed state
tort claims.
II.

RELEVANT PROCEDURAL LAW
A. Scope of Discovery
The scope of discovery as defined by Rule 26 of the Federal Rules of Civil Procedure is

familiar:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). The language of Rule 26 should be “liberally construe[d],” Anaya v. CBS
Broad., Inc., 251 F.R.D. 645, 649 (D.N.M. 2007), so that trial may be “less a game of blind man’s
bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable
extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958); see also Equal Emp.
Opportunity Comm’n v. Bok Fin. Corp., Civil No. 11-1132 RB/LFG, 2013 WL 12047029, at *11
(D.N.M. Jan. 25, 2013) (same). But, at the same time, the Court must avoid permitting any party

This Order cites to the amended version of Plaintiff’s Motion, which corrected an error present in the footer of the
original. See ECF 102 at 1.
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“to engage in a ‘fishing expedition’ in the hope of supporting” his or her claims or defenses. Landry
v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 375 (D.N.M. 2018) (quoting McGee v. Hayes, 43
Fed.Appx. 214, 217 (10th Cir. 2002) (unpublished)).
B. Protective Orders
Under Federal Rule of Civil Procedure 26(c), “[t]he court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.” (emphasis added). The party seeking the order has the burden of establishing good cause.
Velasquez v. Frontier Med. Inc., 229 F.R.D. 197, 200 (D.N.M. 2005). A protective order may take
many forms, including a flat denial of a discovery request or ordering that the request be limited
to certain matters. See Fed. R. Civ. P. 26(c)(1)(A), (D).2
III.

DISCUSSION

To the extent the Motion seeks relief from the September 11, 2020, deposition date,
Plaintiff’s request is denied as moot. As Defendants have aptly put it: “September 11, 2020 has
come and gone.” ECF 108 at 3.
The Court also denies Plaintiff’s request to be granted a protective order barring
Defendants from taking his deposition. For this request, Plaintiff relies exclusively on USAA
Casualty Ins. Co. v. Hancock, CIVIL NO. 12-1062 RB/LFG, CIVIL NO. 12-1257 RB/LAM, 2013
WL 12328888 (D.N.M. Sept. 25, 2013). See ECF 102 at 6–8. There, the Plaintiff sought a
declaratory judgment on whether a set of insurance policies covered wrongful death damages

Similarly, under Rule 30(d)(3)(A) a deponent may move to terminate or limit the deposition if it “is being conducted
in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent.” Under Rule
30(d)(3)(B), “[t]he court may order that the deposition be terminated or may limit its scope and manner as provided in
Rule 26(c).”
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arising from an “execution style shooting death.” Id. Importantly, the court noted that the litigation
did not involve a breach of contract claim. Id. at *2. The defendant sought instead to depose a
claims representative employed by the plaintiff to ask questions “about the language in the
exclusions portions of the policy, how those terms are interpreted, and what manuals or guides”
the employee used to “interpret policy language.” Id. at *3. The court observed that the lawsuit
was not about policy interpretation—rather, the dispute was about whether an exclusion applied to
a certain set of facts. Id. Because the proposed content of the deposition was irrelevant, the court
found good cause to grant the protective order and prevented defendant from deposing the
employee. Id. at *4.
Unlike Hancock, the person sought to be deposed here is Plaintiff himself—the principal
actor in the drama before the Court. For that reason, the Court does not find that the content of
Plaintiff’s deposition will be irrelevant. Because the Court does not find that the questions to be
asked of Plaintiff will yield irrelevant answers, the Court is convinced that Hancock is
distinguishable.
Last, the Court declines to narrow the scope of Plaintiff’s deposition to preclude Defendants
from asking about topics potentially related to the dismissed state tort claims. See ECF 102 at 2–
3, 7–8; ECF 115 at 1–2. As noted above, the scope of discovery is broad. See Anaya, 251 F.R.D.
at 649. Plaintiff has not shown that there is a discrete body of evidence applying only to his state
law claims. Rather, as the Court understands it, the information relevant to Plaintiff’s claims is
fluid and does not lend itself to rigid categorization. Furthermore, the Court finds itself incapable
of delineating with surgical precision which pieces of information relate solely to the dismissed
claims from those that relate to still-pending claims. Because it is Plaintiff’s burden to make such

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a showing, and because Plaintiff has not done so, the Court will deny Plaintiff’s request for a
preemptive protective order.
In sum, Plaintiff’s request to terminate the September 11, 2020, deposition is denied as
moot. In addition, Plaintiff has failed to meet his burden to establish that there is good cause to
either prohibit Defendants from taking his deposition or, in the alternative, to narrow the scope of
his deposition as requested. See Velasquez, 229 F.R.D. at 200 (“It is the party seeking the protective
order who has the burden to show good cause for a protective order.”).
IV.

CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion is DENIED.
IT IS FURTHER ORDERED that the parties are to schedule and conduct a remote

deposition of the Plaintiff no later than November 16, 2020.3
IT IS FURTHER ORDERED that upon completion of the deposition, Defendants shall
file a certificate of compliance with the Court indicating that Plaintiff’s deposition was taken.
SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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If the parties fail to successfully conduct the deposition by November 16, 2020, via remote means, the Court will
order the deposition to be conducted in person at the United States Courthouse in Las Cruces, New Mexico.

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