Baker & Taylor, Inc. v. College Book Rental Company, LLC et al
Filing
170
ORDER granting in part and denying in part 130 Motion to Compel. Signed by Magistrate Judge David Keesler on 6/27/2014. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:12-CV-553-MOC-DCK
BAKER & TAYLOR, INC.,
)
)
Plaintiff,
)
)
v.
)
)
COLLEGE BOOK RENTAL COMPANY, LLC, )
CHARLES JONES, and DAVID GRIFFIN,
)
)
Defendants.
)
ORDER
THIS MATTER IS BEFORE THE COURT on “Defendant David Griffin’s Motion To
Compel” (Document No. 130). This motion has been referred to the undersigned Magistrate
Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered
the motion, the record, and applicable authority, the undersigned will grant the motion in part,
and deny the motion in part.
I. BACKGROUND
Plaintiff Baker & Taylor, Inc. (“Plaintiff” or “B&T”) filed its “Complaint” (Document
No. 1) against College Book Rental Company, LLC (“CBR”), Charles Jones (“Jones”), and
David Griffin (“Griffin”) (collectively “Defendants”) on August 24, 2012.
The Complaint
asserts that Defendant CBR owes Plaintiff “$19,437,734.73 for Books CBR ordered, received,
and accepted from Baker & Taylor, but for which CBR did not remit payment to Baker &
Taylor.” (Document No. 1, p.5). The Complaint further asserts that “Jones and Griffin each
guaranteed payment of all obligations of CBR to Baker & Taylor by executing personal
guaranties.” (Document No. 1, p.3). In addition to Plaintiff’s claims, Defendant Jones asserted
cross-claims against Defendant Griffin on September 18, 2012; and Defendant Griffin asserted
cross-claims against Defendant Jones on March 15, 2013. (Document Nos. 8 and 40).
On April 14, 2014, the Court granted the parties’ latest “Joint Motion To Amend The
Pretrial Order And Case Management Plan” (Document No. 98), with modification. (Document
No. 107). In allowing the “Joint Motion To Amend…” the Court noted that Plaintiff and
Defendant Griffin had reported that the need for an extension of the discovery deadline was due
in part to Defendant Jones’ limited availability to be deposed. Id. The existing deadlines in this
matter are as follows: discovery – May 16, 2014; mediation report – May 23, 2014; motions –
May 30, 2014; and trial October 20, 2014. Id.
On or about May 8, 2014, Plaintiff issued its “Second Amended Notice Of Videotaped
Deposition Of Charles Jones” (Document No. 131-1); and on or about May 12, 2014, Defendant
Griffin issued his own “Amended Notice Of Deposition of Charles Jones” (Document No. 1311). See (Document No. 147, p.2). Both of these notices set Defendant Jones’ deposition for May
13, 2014, and stated that the deposition would continue from day to day until complete.
(Document No. 131-1). The parties do not describe when their initial notices of deposition were
issued to Defendant Jones.
It appears to be undisputed that Defendant Jones’ deposition was held on May 13, 2014
in Murray, Kentucky; and that Plaintiff’s counsel questioned Defendant Jones for approximately
six and one half (6½) hours, and Defendant Griffin’s counsel questioned Defendant Jones for
approximately twenty (20) minutes. At the instruction of counsel, Defendant Jones refused to
continue the deposition beyond a total of seven (7) hours, and refused to allow Defendant
Griffin’s counsel any additional time to question Jones. (Document Nos. 131, 147, and 148).
Defendant Jones also refused to answer questions about settlement discussions with Plaintiff
2
Baker & Taylor after Judge Tennille’s “Mediated Settlement Conference” on May 6, 2014. Id.;
see also, (Document Nos. 133 and 134).
“Defendant David Griffin’s Motion To Compel” (Document No. 130) was filed on May
21, 2014. By the instant motion, Defendant Griffin seeks an Order compelling Defendant Jones
to: (1) “reappear for the continuation of his examination,” and (2) to “respond to questions about
settlement negotiations involving him and B&T.”
(Document No. 130, p.2).
“Defendant
Charles Jones’s Response To Motion To Compel” (Document No. 147) was filed on June 9,
2014. Also on June 9, 2014, “Plaintiff’s Response to Defendant Griffin’s Motion To Compel
Further Testimony From Defendant Jones” (Document No. 148) was filed. Plaintiff does not
oppose Griffin’s request to further depose Jones, but does object to an order requiring Jones to
respond to questions about settlement negotiations. (Document No. 148). “Defendant David
Griffin’s Reply In Support Of Motion To Compel” (Document No. 160) was filed on June 19,
2014.
II. STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense including the
existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For
good cause, the court may order discovery of any matter relevant
to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.
Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
3
(1947). However, a court may “issue an order to protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Whether to grant or deny a motion to compel is generally left within a district court’s
broad discretion. See, Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
929 (4th Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion);
Erdmann v. Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s
substantial discretion in resolving motions to compel); and LaRouche v. National Broadcasting
Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (same).
III. DISCUSSION
A. Deposition Continuation
First, Defendant Griffin argues that Jones’s refusal to allow him more than twenty
minutes of examination “contradicts the clear spirit of Rule 30(d), a rule that seeks to allow for
fair examination of witnesses:”
(1) Duration. Unless otherwise stipulated or ordered by the court,
a deposition is limited to 1 day of 7 hours. The court must allow
additional time consistent with Rule 26(b)(2) if needed to fairly
examine the deponent or if the deponent, another person, or any
other circumstance impedes or delays the examination.
(Document No. 131, p.3) (quoting Fed.R.Civ.P. 30(d)). Defendant then effectively cites the
Advisory Committee Notes regarding the 2000 Amendment of Rule 30(d). (Document No. 131,
p.4). Specifically, Defendant notes that the drafters of the current Rule 30(d) envisioned the
need for additional time under certain circumstances, for example: “[i]n multi-party cases, the
need for each party to examine the witness may warrant additional time, although duplicative
questioning should be avoided and parties with similar interests should strive to designate one
4
lawyer to question about areas of common interest.” Id. (quoting Fed.R.Civ.P. 30 Advisory
Committee’s Note (2000 Amendment)).
Defendant Griffin contends that Defendant Jones’s obstructionist approach prevented
Jones from being deposed on topics relevant to the case. (Document No. 131, p.4). Moreover,
the limitation to twenty (20) minutes of questioning by Griffin, a party with cross-claims against
Jones, did not allow for a fair examination. Id. (citing E.E.O.C. v. Lowe’s HIW, Inc., 2009 WL
811495 (W.D. Wash. Mar. 27, 2009) (holding that limiting one lawyer to a short time period
after expiration of the seven-hour limit did not permit a fair examination of the witness).
In response, Defendant Jones initially contends that the instant motion is untimely.
(Document No. 147, p.3). Jones then focuses on the argument that the motion should be denied
because Griffin did not request leave to take a second deposition of Jones or to exceed the seven
hour time limit. (Document No. 147, p.4) (citing Fed.R.Civ.P. 26(b)(2) and 30(d)). Jones
concludes that Griffin has not shown good cause to justify an extension of time to question
Jones. (Document No. 147, pp.4-6). As noted by Griffin, Jones does not comment on the
Advisory Committee’s direction that “[i]n multi-party cases, the need for each party to examine
the witness may warrant additional time . . . .” (Document No. 160, p.2) (quoting Fed.R.Civ.P.
30 Advisory Committee’s Note (2000 Amendment)).
Plaintiff B&T does not oppose Griffin’s request for additional time to depose Jones.
Based on the foregoing, the undersigned finds Defendant Griffin’s arguments and
authority most persuasive. While the parties might have all been in position to clarify their
expectations for Jones’ deposition prior to May 13, 2014, the undersigned believes that Jones
received adequate notice that both Plaintiff and Griffin intended to depose him beginning on that
date. The undersigned agrees that twenty (20) minutes was not adequate time for Griffin to
5
question Jones, and that Jones’ refusal to continue unnecessarily delayed relevant discovery in
this matter. As such, the undersigned directs that Defendant Jones’ deposition be continued as
soon as possible.
B. Settlement Discussions
Next, Defendant Griffin asserts that Defendant Jones should be required to respond to
questions about settlement discussions with Plaintiff B&T since the conclusion of the mediation
session on May 6, 2014. (Document No. 131, pp.5-8; Document No. 160, pp.3-5). Griffin
argues that “[i]f Jones is attempting to settle B&T’s claim against him by offering testimony
B&T seeks against Griffin, such evidence of bias is discoverable.” (Document No. 131, p.5).
Griffin’s motion acknowledges that Rule 408 of the Federal Rules of Evidence “excludes
settlement evidence offered ‘to prove or disprove the validity or amount of a disputed claim or to
impeach by [a] prior inconsistent statement or a contradiction,’” but argues that “Rule 408
expressly allows evidence involving settlement to show ‘bias or prejudice.’”
Id. (quoting
Fed.R.Evid. 408 (a) –(b)).
In most pertinent part, Defendant Jones contends that settlement negotiations are
continuing with B&T, and that “Courts should be reluctant to compel disclosure of settlement
terms, particularly where the settlement is not finalized.” (Document No. 147, p.9) (citing Bank
Brussels Lambert v. Chase Manhattan Bank, 1996 WL 71507, at *6 n.1 (S.D.N.Y. 1996);
Tribune Co. v. Purcigliotti, 1996 WL 337277, at *3 (S.D.N.Y. 1996)).
Similarly, Plaintiff B&T argues that “all settlement discussions between Defendant Jones
and Plaintiff beginning at the mediated settlement conference on May 6 and continuing through
May 27, 2014 when a mediation impasse was declared by Judge Tennille are not discoverable.”
6
(Document No. 148, p.4) (citing Local Rule 16.3; N.C.G.S. § 7A-38.1; and Rule 10(c) of Rules
Governing Mediated Settlement Conferences in Superior Court Civil Actions).
In reply, Griffin clarifies that he is not seeking discovery of any discussion held during
the mediation session held on May 6, 2014. (Document No. 160, p.3). Moreover, Griffin asserts
that B&T’s position that the rules provide for blanket confidentiality until the mediator files a
report officially declaring an impasse, is unsupportable. Id. Griffin further argues that the
applicable mediation session here began and ended on May 6, 2014. (Document No. 160, p.4)
(citing Document No. 147, p.8, n.1; Document No. 134).
The undersigned observes that the parties and/or the mediator failed to file a timely
Mediation Report on or before May 23, 2014, and had to be ordered to show cause why the
report on the results of mediation was not timely filed. See (Document No. 132). Consistent
with Griffin’s argument, once the mediator filed his report, albeit late, it clearly reported the
“result of a Mediated Settlement Conference held on May 6, 2014,” and made no mention of ongoing mediation. (Document No. 134).
The undersigned finds that this issue presents a close call, but that it is not clear that any
of the parties have identified authority establishing what questions should be permissible
regarding on-going “settlement” discussions between Jones and B&T at the renewed deposition
of Defendant Jones. Moreover, the undersigned is not convinced by Griffin’s argument that
testimony regarding on-going, but to date unsuccessful, attempts at settlement would provide
discoverable evidence indicating bias or prejudice. See (Document No. 131, p.5). Under the
circumstances, the Court will decline to instruct Defendant Jones on how he should answer any
question(s) Griffin’s counsel might ask related to discussions between B&T and Jones since May
7, 2014.
7
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that “Defendant David Griffin’s Motion To Compel”
(Document No. 130) is GRANTED in part, and DENIED in part, as described herein.
Defendant Jones shall make himself available for up to an additional four (4) hours of
deposition testimony by Defendant Griffin on a date agreeable to all parties, in Murray,
Kentucky, on or before July 25, 2014.
IT IS FURTHER ORDERED that the parties shall bear their own costs associated with
filing and responding to instant motion to compel, as well as the continuation of the deposition.
SO ORDERED.
Signed: June 27, 2014
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?