Wyatt v. ADT Security Services, Inc.
Filing
37
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 21 Motion for Protective Order (jcm, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
RONALD R. WYATT,
Plaintiff,
vs.
Case No. 10-CV-383-GKF-FHM
ADT SECURITY SERVICES, INC.,
Defendant.
OPINION AND ORDER
Defendant’s Motion for Protective Order [Dkt. 21] is before the undersigned United
States Magistrate Judge for decision. The Motion for Protective Order is GRANTED in part
and DENIED in part, as set out herein.
On April 26, 2011, Plaintiff issued a notice to depose representatives of Defendant
on 17 topics with the depositions to take place on May 4, 2011, the date of the discovery
deadline. Defendant filed the instant motion objecting to some of the topics on various
grounds, including that Plaintiff had not conducted any written discovery and some of the
areas of inquiry are fact witness questions not suitable for a corporate representative.
Defendant also asserted that although witnesses addressing some of the topics would be
produced for deposition in Tulsa, the witness testifying on other topics should be deposed
at its principal place of business in Boca Raton, Florida rather than in Tulsa, Oklahoma.
Since the briefing was completed on this matter, the court granted a 60-day
extension of the discovery deadline to July 4, 2011. [Dkt. 35]. However, the court found
that a blanket extension of the discovery deadline for written discovery was not warranted,
except that Defendant was ordered to produce the “aging report” mentioned at Dkt. 31, p.
2. [Dkt. 34]. The undersigned will address the motion for protective order by topic in light
of the extension of the discovery deadline. Some of the objections may be moot since
Plaintiff is now permitted to depose appropriate fact witnesses on topics that are more
suitably addressed by such a witness.
Location of Deposition
Defendant has stated it will produce witnesses in Tulsa to address all topics, except
topics numbered 4, 7, and 13.
As to those topics, Defendant states a corporate
representative will be produced at the corporate place of business in Boca Raton, Florida.
Defendant also states it is amenable to a telephonic deposition on those topics. Ordinarily,
the deposition of a corporate representative is taken at the corporation’s principal place of
business. Thomas v. International Bus. Machs., 48 F.3d 478, 483 (10th Cir. 1995)(quoting
Wright & Miller, 8A Civil §2112 at 81). Plaintiff has not forwarded any reason why that
procedure should be altered. The protective order is GRANTED as to the place of
deposition for topics 4, 7, and 13. To the extent this order otherwise permits inquiry into
those topics, the designated deponents for those topics may be deposed in Boca Raton,
Florida.
Topics Which are Essentially Written Discovery
Plaintiff has not conducted any written discovery in this case. As mentioned above,
the Court has extended the discovery deadline for depositions, but except for the
production of a single report, has not extended the deadline for written discovery requests.
A number of the topics upon which Plaintiff seeks a corporate representative deposition are
essentially a substitute for what is essentially written discovery. Deposition on those topics
would require that a corporate representative essentially read the information sought into
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a deposition transcript.
Defendant will not be required to prepare a corporate
representative to read reports into the record.
Defendant’s Financial Condition
Topic 4 seeks testimony concerning “Defendant’s financial condition including gross
and net income statements for the past 3 years.” [Dkt. 21-3, p. 4]. Defendant has no
obligation to produce a witness to read that information into the record. However, to the
extent Plaintiff has obtained gross and net income statements for that time period and has
specific questions to ask a knowledgeable corporate representative about those
statements, Plaintiff is permitted to do so.1 Counsel are directed to confer to determine
whether a deposition on this subject is necessary in light of this ruling.
Reduction in Force Affecting Plaintiff
Topic 5 seeks testimony about “Defendant’s reduction in force which terminated
Plaintiff’s employment including, but not limited to, all others subject to this reduction in
force.” Defendant objects to this topic to the extent it calls for a witness to recite lists or
memorize data to answer questions.
Plaintiff responds that previous deponents have testified that in a nationwide
reduction in force, the Tulsa office reduced its employees by one. That one person was
Plaintiff. Plaintiff asserts that the previous deponents did not know why the particular Tulsa
department was selected for a reduction and didn’t know who had the documentation on
the subject. Nor did the deponents know whether others in the Tulsa office had more
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Defendant has not made a specific objection as to the relevancy of this topic. A relevancy objection
is contained in Defendant’s “general objections.” The undersigned has not considered any objections that are
not specifically addressed to a particular topic. It is not appropriate to expect the court to sift through general
objections to determine which ones might apply to a particular topic.
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tardies than Plaintiff, but that information should be available in the personnel files. Plaintiff
asserts that “some witness should be required to produce that evidence.” [Dkt. 29, p. 7].
Plaintiff may inquire generally about the execution of the reduction in force that
affected him and may inquire in detail about the reasons he was selected. Plaintiff may
not, however, use the 30(b)(6) deposition on these topics as a substitute for obtaining
volumes of documents, reports, or personnel files that he did not seek earlier in the
litigation through written discovery.
All Other Complaints, Claims, and Lawsuits Regarding FMLA or Disability Complaints
In topic 7 the notice states Plaintiff seeks to depose a corporate representative about
“[a]ll other complaints, claims and lawsuits within the past 7 years against Defendant
alleging FMLA or disability complaints.” [Dkt. 21-3, p. 4]. In response to Defendant’s
objection that the request is overbroad in time and geographic scope, Plaintiff stated “[t]he
geographic scope is nationwide and the time frame as far back as the Defendant has
records.” [Dkt. 29, p. 8]. In response to Defendant’s suggestion that the discovery be
limited to work sites where Plaintiff worked, supervisors to whom he reported, and only
those employees to whom he was similarly situated, Plaintiff asserts that Defendant’s policy
concerning such complaints is not so limited. Id.
It is not unreasonable for Defendant to prepare a corporate representative to testify
as to Defendant’s policy and the procedure for handling such complaints and Defendant
will be required to do so. Plaintiff has not forwarded any argument that would justify
production of information about specific cases nationwide for an unlimited time frame, or
even for the seven years requested in the notice. Nor has Plaintiff provided any reason
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why limiting discovery to information about specific instances of such claims to his own
work sites and supervisors is unreasonable.
Taking into account the burden of the scope of Plaintiff’s proposed discovery and
considering that Plaintiff has not demonstrated that the needs of the case require such a
wide scope or that the proposed discovery is necessary in resolving the matters at issue,
Plaintiff’s inquiry about specific complaints, claims and cases will be limited to those
involving his work sites and supervisors for a period of 7 years.
Fed. R. Civ. P.
26(b)(2)(C)(iii).
Backlog of Work
Topic 9 seeks testimony regarding the backlog of work to be performed by high
volume and commercial for the Tulsa office for November 2008 to March 2009. Defendant
objects on the basis that this topic would require a witness to recite lists and memorize
data. Plaintiff states when Theresa Boyll was deposed she testified she would need to
consult a backlog report to answer a question regarding the backlog. Plaintiff asks that a
witness be produced who has done so.
Defendant has not provided specific information about the backlog report and
therefore its argument that preparing a witness to testify about the backlog would be unduly
burdensome is not persuasive. The motion for protective order is denied as to topic 9.
Hiring of Workers Since 2009
Topic 10 seeks testimony about “[a]ll hiring of workers for high volume and
commercial for the Tulsa office since 2009.” Defendant argues that since Plaintiff’s
employment was terminated in early 2009, this information is irrelevant. Plaintiff asserts
that at his deposition Mr. Roley was asked about employees who had been hired shortly
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after Plaintiff’s employment was terminated. He testified that a replacement was hired in
January 2010. Plaintiff states that since he wasn’t offered his job back, “hiring practices
after his termination are relevant in evaluating the reduction of force rationale.” [Dkt. 29, p.
9]. In reply, Defendant states that Plaintiff has not made any failure-to-hire allegations in
his lawsuit and Plaintiff’s claims are limited to the alleged facts leading up to and including
his termination. Therefore Defendant argues it should not have to prepare a corporate
representative on this topic.
It is clear that Plaintiff has already discovered some information about the hiring of
a replacement for him. Plaintiff has provided no information about what else he seeks to
discover about this topic. Defendant argues it should not have to prepare a witness on the
topic but does not assert that it would be unduly burdensome to do so. Taking these
considerations into account and finding that the topic meets the broad requirements of
relevancy for discovery purposes, the Motion for Protective Order is DENIED for topic 10.
Authentication of Documents
Topics 11 and 15 seek authentication of documents. Although normally handled by
stipulation, if there is a dispute as to the authenticity of documents, authentication is an
appropriate subject for a deposition of a corporate representative. To the extent Plaintiff
possesses the subject documents, the Motion for Protective Order is DENIED as to topics
11 and 15.
Plaintiff’s Attempts to Take FMLA in 2009
Topic 12 addresses “Plaintiff’s attempts to take FMLA in 2009.” [Dkt. 21-3, p. 5].
Defendant objects on the basis that the topic “assumes facts not in evidence.” [Dkt. 21, p.
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6]. Defendant did not elaborate on its objection. The meaning of such an objection in this
context is not clear. The Motion for Protective Order is DENIED as to topic 12.
Previous Reductions in Force
Topic 13 seeks testimony about Defendant’s previous reductions in force for the past
10 years. In addition to boilerplate objections as to the relevancy and burdensomeness of
the topic, Defendant objects to this topic on the basis that it is overbroad in time and
geographic scope. No information is provided about how many reductions in force
occurred over the past 10 years or how many employees or departments were involved.
Thus, Defendant has not demonstrated that the topic is overbroad or that responding would
be unduly burdensome. Defendant asserts that Plaintiff should be limited to discovery
about only the reduction that applied to him. Defendant has not demonstrated any reason
for making such a limitation.
It is not unreasonable for Defendant to prepare a witness to testify generally about
past reductions over the past 10 years, the number of employees involved, and the general
basis for decision-making as to how reductions were made. The Motion for Protective
Order is DENIED as to topic 13.
Aging Reports
Topic 16 seeks testimony about “[a]ging reports and any other indicators of workload
for the high volume and commercial departments for the Tulsa office from November 2008
to March 2009". [Dkt. 21-3, p. 5]. Aside from an objection to the breadth and relevancy of
the topic, Defendant objects on the basis that testimony on the topic would require the
deponent to recite lists or recall memorized data.
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The Order entered on May 16, 2011 requires “ADT to produce to Wyatt the ‘aging
report’ mentioned at Dkt. #31, p. 2.” [Dkt. 34]. The undersigned finds that in light of the
required production of the “aging report,” it is not unreasonable to require Defendant to
prepare a corporate representative to prepare to testify about its contents. The Motion for
Protective Order is DENIED as to topic 16, but only insofar as it concerns the referenced
“aging report.”
Workload per Employee
Topic 17 seeks information about the “workload per employee for all employees in
the high volume and commercial departments in Karen Hawkins’ region from November
2008 to March 2009.” [Dkt. 21-3, p. 5]. Defendant objects on the basis that the topic is
overbroad, burdensome, irrelevant, and would require the recitation of lists and
memorization of data.
Plaintiff responds that the issue of workload came up in previous depositions and
it was explained that the best indicator of workload is the number of workable jobs
available, which could be determined by looking at reports. Plaintiff states that the
information has a bearing on whether it was appropriate to downsize the unit in which
Plaintiff was employed and the information could easily be documented. [Dkt. 29, p. 10].
In its reply brief Defendant explained that the request for workload per employee is
unduly burdensome because Karen Hawkins is responsible for seven states and El Paso.
Defendant further explained that the only relevance of workload is that the Tulsa office was
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selected for a reduction in force over the Oklahoma City office because the Tulsa office had
a lighter workload in February 2009. [Dkt. 30, p. 5].2
This is the type of information which is appropriate for written discovery. The
corporate representative will not be required to read reports into the deposition record. 3 As
with topic 4, to the extent Plaintiff possesses information concerning the workload per
employee and has specific questions to ask a knowledgeable corporate representative
about that information, Plaintiff is permitted to do so. Counsel are directed to confer to
determine whether a deposition on this subject is necessary in light of this ruling.
Conclusion
Defendant’s Motion for Protective Order [Dkt. 21] is GRANTED in part and DENIED
in part as set out herein. Counsel are directed to confer to determine the best way to
proceed in light of this Order. Should difficulties arise in completing discovery in this case
counsel are encouraged to use the expedited procedure set out in LCvR 37.2.
SO ORDERED this 23rd day of May, 2011.
2
Defendant’s explanations are the type of information expected to support a claim of
burdensomeness. It is also expected that such explanations appear in an opening brief, rather than in a reply
brief.
3
It is not clear whether Plaintiff is seeking a jobs per employee figure for each and every individual
employee in the region, or whether Plaintiff wants a calculation of the number of jobs divided by the number
of employees for each office in the area for which Karen Hawkins has responsibility. Since Plaintiff’s
arguments on this topic refer to the privacy of employees, it appears that Plaintiff is seeking an employee-byemployee calculation. [Dkt. 29, p. 10]. Plaintiff’s discovery is denied for the additional reason that an
employee-by-employee calculation would be unduly burdensome.
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