Marshall v. Belmont County Commissioners et al

Filing 39

OPINION AND ORDER granting 35 Motion to Take Redeposition from Ginny Favede. Redeposition due within 21 days. Dispositive motions due by 10/17/2014. Signed by Magistrate Judge Norah McCann King on 8/26/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBYN MARSHALL,
Plaintiff,
vs.

Civil Action 2:13-cv-966
Judge Graham
Magistrate Judge King

BELMONT COUNTY BOARD OF
COMMISSIONERS, et al.,
Defendants.
OPINION AND ORDER
This is an employment action in which plaintiff, formerly the
director of the Belmont County 9-1-1 Emergency Services Center,
alleges that she was discriminated against and eventually terminated
on account of her disability in violation of the ADA, 42 U.S.C. §
12101 et seq., and on account of her gender and in retaliation for
having engaged in protected activities in violation of Title VII, 42
U.S.C. § 2000e-5.

Plaintiff also asserts parallel state law claims of

gender and disability discrimination and retaliation under O.R.C. §
4112.01 et seq., as well as state law claims of intentional infliction
of emotional distress, defamation, and tortious interference with a
contract.
Defendant Ginny Favede is a Commissioner for defendant Belmont
County Board of Commissioners (the “Board”).
defendant Favede on March 13, 2014.

Plaintiff deposed

This matter is now before the

Court on Plaintiff’s Motion to Redepose Defendant Favede (“Plaintiff’s
Motion”), Doc. No. 35.

Plaintiff seeks to redepose defendant Favede

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on the issues raised by this defendant in a July 14, 2014 email to
plaintiff’s counsel:
My apologies for contacting you directly.
I do hope I am
not violating any legal procedure.
I had asked my legal
counsel Jeffrey Stankunas to contact you regarding my
desire to amend my deposition in the Robyn Marshall case.
He has indicated the discovery period my [sic] by closed
and that you may not have interest in my clarification. I
would like to clarify and amend my deposition and am hoping
you are amenable to such.
Please feel free to contact me directly if appropriate or
through Mr. Stankunas is [sic] necessary. I do believe my
clarification is just.
Id. at p. 2, Exhibit A.

Plaintiff’s counsel contacted defendant’s

counsel after receiving the July 14, 2014 email to schedule a second
deposition of defendant Favede, but defendant’s counsel refused.
Defendant Favede now opposes being redeposed on the basis of
relevancy.

Defendants’ Memorandum in Opposition to Plaintiff’s Motion

to Redepose Defendant Favede (“Defendants’ Response”), Doc. No. 37.
Although depositions are ordinarily noticed and taken without the
involvement of the Court, Rule 30(a)(2) of the Federal Rules of Civil
Procedure sets forth several circumstances under which leave of court
is required in order to conduct a deposition.

“A party must obtain

leave of court, and the court must grant leave to the extent
consistent with Rule 26(b)(2): if the parties have not stipulated to
the deposition and . . . the deponent has already been deposed in the
case[.]”

Fed. R. Civ. P. 30(a)(2)(A)(ii).

“This discovery rule, like

other discovery rules requiring the parties to apply for leave of
court, provides the Court with considerable discretion to make a
determination which is fair and equitable under all the relevant

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circumstances.”

Fresenius Med. Care Holdings, Inc. v. Roxane Labs.,

Inc., No. 205-CV-0889, 2007 WL 764302, at *2 (S.D. Ohio Mar. 9, 2007).
The exercise of the Court’s discretion is guided by the principles set
forth in Rule 26(b)(2), “which include whether the second deposition
of the witness would be unnecessarily cumulative, whether the party
requesting the deposition has had other opportunities to obtain the
same information, and whether the burden of a second deposition
outweighs its potential benefit.”

Id.

As noted supra, defendant Favede was deposed on March 13, 2014,
and she contacted plaintiff’s counsel on July 14, 2014, to “clarify
and amend” some unspecified aspect of her deposition.

Her response to

Plaintiff’s Motion identifies the portion of her deposition referred
to in her email. Defendant Favede explains that she had wanted to
amend her testimony regarding disciplinary action by department heads
without consulting the commissioners;

since her deposition, defendant

Favede has “learned that, unbeknownst to her, department heads have
previously issued verbal and written reprimands to their subordinates
without her knowledge.” However, defendant Favede now argues that this
information is irrelevant to issues in this case.

Id. at p. 2.

This

Court disagrees.
As noted supra, this is an employment action in which plaintiff
alleges that she was discriminated against and eventually terminated
on account of her disability and gender and in retaliation for having
engaged in protected activities.

The Board allegedly terminated

plaintiff’s employment because she was “disrespectful, insubordinate,

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dishonest, and deceptive and had otherwise failed to exhibit good
behavior by working without Board authority and against the Board’s
direction in issuing” a verbal reprimand to a subordinate employee.
Complaint, Doc. No. 1, ¶¶ 63-64.

Plaintiff also alleges that the

stated reasons for her termination are mere pretext for the Board’s
discrimination.

Id. at ¶¶ 67, 77.

Evidence of the discipline of an

employee by a department head without the Board’s consent is therefore
relevant to this action.

The parties characterize this evidence as

supporting different conclusions but, despite defendant Favede’s
arguments to the contrary, both sides seem to acknowledge its
relevance.

See Defendants’ Response, p. 4 (“The fact that other

department heads may have also disciplined an employee(s) without
Commissioner Favede knowing about it demonstrates that they were just
like Ms. Marshall, who on her own admission did the same thing . . .
.”); Plaintiff’s Reply, Doc. No. 38.
The Court also notes that it was actually defendant Favede who
requested the second deposition to “clarify and amend” an unspecified
portion of her first deposition.

Notably, plaintiff seeks only to

redepose defendant Favede on the topics raised in her July 14, 2014
email.

Although defendant Favede now represents that her email

referred to her knowledge of disciplinary practices among department
heads, she has not offered any evidence in that regard.

There is also

no suggestion that a second deposition would be unnecessarily
cumulative or unduly burdensome.
Under the circumstances, the Court concludes that its discretion

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is better exercised by granting plaintiff leave to redepose defendant
Favede, limited to the issues raised in this defendant’s July 14, 2014
email to plaintiff’s counsel.
Plaintiff’s Motion, Doc. No. 35, is therefore GRANTED.

The

parties shall schedule and complete defendant Favede’s redeposition
within 21 days.
The date by which dispositive motions may be filed is EXTENDED to
October 17, 2014.

August 26, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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