Speedeon Data LLC v. Integrated Direct Marketing, LLC

Filing 76

Memorandum Opinion and Order supplementing the Order clarifying the previous discovery dispute order (Related docs. # 68 , 74 ) to elaborate on the reasons supporting that ruling. The order of referral is terminated (Related Doc. # 70 ). Signed by Magistrate Judge William H. Baughman, Jr., on 11/28/2016. (S,MD)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SPEEDEON DATA LLC,
Plaintiff,
v.
INTEGRATED DIRECT MARKETING,
LLC,
Defendant.

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CASE NO. 1:15 CV 1272
JUDGE CHRISTOPHER A. BOYKO
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
On November 16, 2016, I issued an order resolving a discovery dispute between the
parties.1 That order provided that certain depositions in Little Rock, Arkansas “must be taken
by videoconferencing under Federal Rule of Civil Procedure 30(b)(4).”2 Several letters from
counsel to Judge Boyko followed asserting ambiguity in this order and seeking clarification.3
These letters resulted in a re-referral for clarification of my order.4
I have issued a separate order making clear that counsel for both parties must
participate in the depositions by videoconferencing; counsel for Integrated does not have the
option to take the deposition in person.5 This memorandum elaborates on the reasons
supporting that ruling.
1

ECF # 68.

2

Id. at 2.

3

ECF #s 69, 71, and 72.

4

ECF # 70.

5

ECF # 74.

Issue
The order of November 16, 2016 states that the depositions at issue “must be taken
by videoconferencing.” Integrated’s counsel submits that the order gives him the option to
take the depositions in person, and Speedeon’s counsel may participate by
videoconferencing. Does the order permit Integrated to take the depositions in person?

Ruling
As set out in my order of November 23, 2016:
Despite the clear and unambiguous language of my order (“must be taken by
videoconferencing”), counsel for Integrated insists that he has the option to take the
depositions in person with counsel for Speedeon participating by videoconference if he
chooses to do so.6 This position seeks to create ambiguity where none exists.

As the order states “[t]he depositions must be taken by videoconferencing.”
***
Counsel for both parties must participate in the depositions by videoconferencing.

Rationale
Context
At the case management conference held on March 22, 2016, Judge Boyko set June

6

ECF # 71 at 2.

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24, 2016 as the cut-off date for discovery.7 Speedeon filed a motion for summary judgment.8
Nevertheless discovery continued with leave of court.9 Integrated filed an opposition to the
motion for summary judgment but asked for additional discovery under Federal Rule of Civil
Procedure 56(d).10 Speedeon filed a reply brief in support of the motion.11 It opposed the
motion to extend the time for discovery.12 Eventually, the Court further extended discovery
and the time for the filing of a supplemental brief in opposition to the motion for summary
judgment to November 30, 2016.13
Along the way the parties have had multiple discovery disputes. As the November
30 discovery cut-off date approached, yet another dispute arose over the scheduling of the
depositions of two witnesses in Little Rock, Arkansas for November 18, 2016. Judge Boyko
referred this dispute to me for resolution.14 After a court-ordered meet and confer session at
the courthouse and a status conference, I issued the relevant order, which permitted the

7

Minutes of proceedings (non-document) of March 22, 2016.

8

ECF # 39.

9

ECF # 38.

10

ECF # 49.

11

ECF # 54.

12

ECF # 53.

13

ECF # 58.

14

ECF # 65.

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depositions to go forward on November 29, 2016, but required that those depositions be
taken by videoconferencing.15
Although this order was clear and unambiguous, as explained below, counsel elected
to ask for clarification rather than seek reconsideration of the ruling from the assigned
District Judge under 28 U.S.C. §636(b)(1)(A). I have now issued a separate order restating
my unambiguous ruling.16
Absence of ambiguity
The language of the November 16, 2016 order is not ambiguous. It states that the
depositions at issue “must be taken by videoconferencing.” (Emphasis added) This cannot
reasonably be interpreted as permitting counsel for Integrated to take the depositions in
person with counsel for Speedeon having the option to participate by videoconferencing.
“Must” means “is required to.”17 “May” means “has discretion to(,) is permitted to
(,) has a right to.”18 Integrated’s argument that the order grants its counsel the option to take
the depositions in person gives the language of the order an interpretation that its words will
not reasonably support.

15

ECF # 68.

16

ECF # 73.

17

B. Garner, Guidelines for Drafting and Editing Court Rules, at 29 (5th printing 2007).

18

Id.

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Arguments for reconsideration
Counsel for Integrated makes several arguments for reconsideration rather than
clarification.

I will address them as possible assistance to Judge Boyko should

reconsideration be sought under 28 U.S.C. § 636(b)(1)(A).
First, counsel argues that he should have the option to take the depositions in person
since he will be in Little Rock at the time on other business. This argument overlooks my
concern about the proportionality of the discovery in this case. Counsel for Speedeon has
objected to the depositions on the grounds of relevancy and proportionality. The Court
should not be placed in a position of deciding relevancy in a vacuum. Discovery should go
forward, with relevancy determined with a decision on the merits. The Court will consider
the merits shortly in ruling on the motion for summary judgment. If either party has
abusively undertaken discovery not relevant to the claims and defenses pending, the Court
may consider an award of costs and expenses.
Proportionality is a more immediate concern. The numerous extensions of the
discovery cut off date, and multiple discovery disputes, betray a reasonable possibility that
discovery has become disproportional. Again, if needed, a final determination should be
made on consideration of the merits. But given the expense involved in taking these
depositions at a time so close to the discovery cut-off date, a reasonable compromise is
appropriate. The requirement that the depositions be taken by videoconference provides that
compromise, which counsel themselves could not reach through the meet and confer process.
That counsel for Integrated will conveniently be in Little Rock on other matters at the

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time the depositions are scheduled does not warrant a different result. If the counsel taking
the deposition chooses to appear in person to conduct examination, that for all practical
purposes forces counsel for Speedeon to attend in person as well, thereby permitting
Integrated to unilaterally nullify the Court’s order.

The Court’s discretion to order

depositions to be taken by videoconferencing under Federal Rule 30(b)(4) becomes illusory.
Integrated also argues that various alleged discovery abuses by Speedeon in the course
of this case justifies the taking of these depositions in person. Speedeon may, it submits,
attend these depositions by videoconferencing if it prefers, but Integrated should not be
limited to videoconferencing. These other alleged discovery abuses are not currently before
the Court. Speedeon’s counsel is cautioned not to withhold or hinder discovery based on
objections that can be asserted for the record and reserved for determination with the merits.
Conclusion
The order at issue unambiguously requires counsel for both parties to participate in
the depositions in Little Rock by videoconferencing.

Concerns for the expeditious

conclusion of discovery and proportionality support the requirement of taking the depositions
by videoconferencing. Counsel must proceed accordingly.
The referral for clarification of the November 16, 2016 order is terminated.
IT IS SO ORDERED.

Dated: November 28, 2016

s/ William H. Baughman, Jr.
United States Magistrate Judge

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