Kelly v. Boeing Company

Filing 29

Opinion and Order - Plaintiff's Discovery Motion for Leave to Take More than Ten Depositions (ECF 17 ) is DENIED without prejudice and with leave to renew if and when appropriate. Plaintiff's Motion for Protective Order (ECF 22 ) is GRANTED. Signed on 1/22/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL KELLY,
Plaintiff,

Case No. 3:18-cv-659-SI
OPINION AND ORDER

v.
THE BOEING COMPLANY,
Defendant.
Daniel J. Snyder, Carl L. Post, and John D. Burgess, LAW OFFICES OF DANIEL SNYDER, 1000 SW
Broadway, Suite 2400, Portland, OR 97205. Of Attorneys for Plaintiff.
James M. Barrett, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, The KOIN Center, 222
SW Columbia Street, Suite 1500, Portland, OR 97201; Robert Jon Hendricks, Joseph R. Lewis,
MORGAN, LEWIS & BOCKIUS, LLP, One Market, Spear Street Tower, San Francisco, CA 94105.
Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Before the Court are two discovery motions that should not have needed to be filed. If
both sides took seriously their obligations under Rule 1 of the Federal Rules of Civil Procedure,1
Local Rule (“LR”) 83-8(a),2 and this Court’s Statement of Professionalism with which every

“These rules govern the procedure in all civil actions and proceedings in the United
States district courts, except as stated in Rule 81. They should be construed, administered, and
employed by the court and the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding.” Fed. R. Civ. P. 1 (emphasis added).
1

“Counsel must cooperate with each other, consistent with the interests of their clients, in
all phases of the litigation process and be courteous in their dealings with each other, including
2

PAGE 1 – OPINION AND ORDER

attorney admitted to general or special practice in the District of Oregon must comply pursuant
to LR 83-7(a),3 the two disputes that now require resolution by the Court would have been
solved by the parties themselves or would not have arisen in the first place.4
The first motion is Plaintiff’s Discovery Motion for Leave to Take More than Ten
Depositions. For the reasons that follow, that motion is denied without prejudice and with leave
to renew if and when appropriate. The second motion is Plaintiff’s Motion for Protective Order,
seeking to prevent the deposition of a third-party witness that Defendant’s counsel scheduled at a
time when Plaintiff’s counsel is unavailable. For the reasons that follow, that motion is granted.
BACKGROUND
From February 2011 through January 2017, Kelly worked for Boeing as a milling
machine operator in Boeing’s facility in Portland, Oregon. Kelly previously worked for Boeing
from approximately 1984 through 1994. During the entire time that Kelly worked for Boeing, he
suffered from both celiac disease and chronic gout. On January 12, 2017, Boeing terminated
Kelly’s employment. Kelly alleges unlawful discrimination and retaliation in violation of Title I
of the American’s with Disabilities Act (“ADA”); unlawful interference, discrimination, and
retaliation in violation of the Family and Medical Leave Act of 1993 (“FMLA”); similar claims

matters relating to scheduling and timing of various discovery procedures.” LR 83-8(a)
(emphasis added).
3

As adopted by the United States District Court for the District of Oregon, the Statement
of Professionalism provides, in relevant part: “We will avoid unjust and improper criticism and
personal attacks on opponents, judges, and others and will refrain from asserting untenable
positions”; “We will not use delaying tactics”; and “We believe lawyers should solve problems,
not create or exacerbate them.” See LR 83-7(a).
4

At this time, the Court expresses no opinion on whether the pending difficulties were
caused more by Plaintiff’s counsel, Defendant’s counsel, or both equally. The Court notes,
however, the wisdom in the saying, “It takes two to tango.”
PAGE 2 – OPINION AND ORDER

under the Oregon Rehabilitation Act and the Oregon Family Leave Act; common law wrongful
discharge; and common law intentional infliction of emotional distress. Kelly seeks economic
and non-economic compensatory damages, statutory liquidated damages, injunctive relief, and
attorney’s fees.
DISCUSSION
A. Plaintiff’s Motion for Leave to Take More than Ten Depositions
Rule 30 of the Federal Rules of Civil Procedure provides that a party may not take more
than ten depositions absent stipulation by all parties or leave of court. Fed. R. Civ.
P. 30(a)(2)(A)(i). When considering a party’s request for leave to take more than ten depositions,
the Court “must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ.
P. 30(a)(2) (emphasis added). “Rule 30 is designed to reduce litigation costs and delay of
discovery by setting a limit on the number of depositions, which is one of the more expensive
forms of discovery.” In re At Home Corp., 2005 WL 289976, at *3 (N.D. Cal. Feb. 4, 2005). As
explained by United States District Judge Phyllis Hamilton:
Under Rule 26(b)(2) the Court will consider whether: (i) the
discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has
had ample opportunity by discovery in the action to obtain the
information sought; or (iii) the burden or expense of the proposed
discovery outweighs its likely benefit, taking into account the
needs of the case, the amount in controversy, the parties' resources,
the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues. See
Smith v. Ardew Wood Products, Ltd., 2008 WL 4837216 (W.D.
Wash., Nov.6, 2008).
A party seeking to exceed the presumptive number of depositions
must make a particularized showing of the need for the
additional discovery. Bell v. Fowler, 99 F.3d 262, 271 (8th Cir.
1996); Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of
Minn., 187 F.R.D. 578, 586 (D.Minn.1999). To that end, courts
will generally not grant leave to expand the number of depositions
PAGE 3 – OPINION AND ORDER

until the moving party has exhausted the ten depositions permitted
as of right under Rule 30(a)(2).
Moreover, in the court’s view, Rule 30(a)(2) contemplates that a
party has already taken at least some of its ten depositions before
a motion is filed seeking leave of court for a proposed deposition
that would result in more than ten depositions being taken under
this rule. See Archer Daniels, 187 F.R.D. at 586 (a party should
appropriately exhaust its current quota of depositions, in order to
make an informed request for an opportunity to depose more
witnesses, before seeking leave to depose a legion of others).
Authentec, Inc. v. Atrua Techs., Inc., 2008 WL 5120767, at *1 (N.D. Cal. Dec. 4, 2008)
(emphasis added).
In its initial disclosures provided under Rule 26(a), Defendant originally identified 19
witnesses, not including Plaintiff. From that list, Plaintiff requested 16 depositions. On
October 23, 2018, Defendant supplemented its disclosures and added five additional witnesses,
for a total of 24, not including Plaintiff. According to Plaintiff’s counsel, Defendant’s counsel
refused to schedule any depositions of its witnesses unless Plaintiff limited to ten the total
number of depositions that Plaintiff sought. See ECF 18-1 at 19. Plaintiff reduced the number of
requested depositions from 16 to 14 and urged Defendant’s counsel to reconsider Defendant’s
position. Id. at 20. Defendant’s counsel then agreed to schedule the depositions of five persons
who are all currently employed by Defendant. Defendant’s counsel, however, declined to
schedule any depositions of former employees, non-employees, or union members who are not
agents of Defendant. Id. at 21.
Defendant opposes Plaintiff’s motion for leave to take more than ten depositions.
Defendant argues that Plaintiff has not made the required “particularized showing” of why the
requested discovery is necessary. Defendant further argues that the requested depositions would
be cumulative and duplicative. Defendant adds that the additional discovery is not proportional

PAGE 4 – OPINION AND ORDER

to the needs of the case. Finally, Defendant asserts that it is premature for Plaintiff to seek leave
to take more than 10 depositions, before the Plaintiff has taken any.
Defendant’s initial position that it would not schedule any depositions unless Plaintiff
agreed to limit his total number of depositions to 10 was unreasonable, unprofessional, and
unsupported by any federal rule or other authority. Defendant, however, is no longer maintaining
that position. Accordingly, Plaintiff may take 10 depositions at times and places that are
mutually agreeable to the parties.
Plaintiff, however, has not met his burden of making “a particularized showing of the
need for the additional discovery” requested in his motion. See Authentec, Inc., 2008
WL 5120767, at *1. Although Plaintiff is not required to exhaust his 10-deposition limit before
attempting to make a particularized showing, Plaintiff has not yet made any showing other than
simply to present Defendant’s initial disclosures listing 24 people, not including Plaintiff, who
may have relevant knowledge. More detail is needed from Plaintiff before the Court can fulfill its
duty of ensuring that the additional depositions sought by Plaintiff are consistent with
Rule 26(b)(1) and (2) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 30(a)(2).
Plaintiff’s motion for leave to take more than ten depositions is denied without prejudice and
with leave to renew if and when appropriate.
B. Plaintiff’s Motion for Protective Order
On November 12, 2018, Plaintiff’s counsel wrote to Defendant’s counsel requesting to
take the depositions of 14 people identified in Defendant’s initial disclosures as “persons likely
to have discoverable information.” ECF 18-1 at 19; see also id. at 6. This list included the name
“Michael Lockman,” a former Boing employee. Id. at 7. According to Defendant’s initial
disclosures,

PAGE 5 – OPINION AND ORDER

Lockman has personal knowledge of telephonic communications
with Ms. Scroggins and Mr. Edge on January 12, 2017, each of
whom administered a urinalysis to Plaintiff on January 12, 2017.
Lockman also has personal knowledge of the reasons for Plaintiff’s
termination, which include violation of Boeing’s drug and alcohol
testing procedures and policies. Lockman also has personal
knowledge of his telecommunications with Carolyn Muir on the
day in question and the instructions he gave her. Last Known
Home Phone: * * * Last Known Home Address: * * *,
Seattle, Washington 98119. Present or Last Known Place of
Employment: Unknown. Lockman does not have a current
relationship with Defendant.
Id. Two days later, on November 14, 2018, Defendant’s counsel wrote back, decling to schedule
any deposition of former employees, non-employees, or union members who are not agents of
Defendant. Id. at 21.
Even though Defendant declined to schedule the deposition of former employee
Lockman as requested by Plaintiff, it appears that Defendant now wants to depose Mr. Lockman.
On January 9, 2019, Defendant’s counsel sent to Plaintiff’s counsel a Notice of Deposition and
Subpoena to Testify relating to Mr. Lockman, noticing his deposition by Defendant for January
23, 2019, at 1:00 p.m. ECF 23-1. That same day, Plaintiff’s counsel promptly wrote back to
Defendant’s counsel, explaining that Plaintiff’s counsel is not available for the Lockman
deposition on January 23, 2019, but offering that he was available the following day, January 24,
2019, as well as during the week of February 11, 2019. ECF 23-2. On January 14, 2019,
Plaintiff’s counsel sent an email to Defendant’s counsel stating that January 24th was no longer
available. ECG 23-3. When Defendant refused to reschedule the deposition of Mr. Lockman,
Plaintiff filed his motion for protective order on January 18, 2019, requesting expedited
consideration. ECF 22. Defendant responded on January 21, 2019. ECF 25.
Among other things, Defendant argues that Plaintiff’s motion for protective order is
procedurally defective because Plaintiff’s counsel failed to certify that he conferred with
PAGE 6 – OPINION AND ORDER

Mr. Lockman as an “affected party.” Defendant’s counsel, however, also reports that
Mr. Lockman never responded to calls from Defendant’s counsel. ECF 25 at 3. The Court
declines to find Plaintiff’s motion procedurally defective.
Defendant also argues that Defendant’s counsel “has agreed to stipulate to use of
Mr. Lockman’s prior testimony sworn testimony during Plaintiff’s April 2017 Unemployment
Hearing, when Mr. Snyder cross examined the witness before Administrative Law Judge, Kirsten
Murdoch.” Id. at 10. Apparently, that stipulation is not acceptable to Plaintiff. The offered
stipulation, however, is not a legally sufficient basis to reject Plaintiff’s request to reschedule
Mr. Lockman’s deposition for a date and time when Plaintiff’s counsel would be available.
It is common professional courtesy to schedule depositions only for when each side’s
counsel may be present. If one side is perceived by the other side as being unreasonable in
setting a schedule, any party may request a telephone conference with the Court by contacting
the Courtroom Deputy. Both sides in this lawsuit know that. Although there may have been some
initial confusion about whether Plaintiff’s counsel was originally available on January 23rd, by
January 9th any such confusion had been eliminated: Plaintiff’s counsel told Defendant’s counsel
he was not available (or was no longer available) on January 23rd. At that point, courteous and
professional counsel would have either rescheduled the deposition or contacted the Court for
guidance.
Finally, the Court notes that fact discovery is scheduled to close on January 31, 2019, and
dispositive motions are due on February 28, 2019. If this schedule needs to be adjusted to
accommodate the apparent desire of both sides to depose Mr. Lockman, the Court will approve
that request. Plaintiff’s motion for protective order is granted, and the deposition of
Mr. Lockman may only be taken at a date and time mutually acceptable to Plaintiff’s counsel,

PAGE 7 – OPINION AND ORDER

Defendant’s counsel, and Mr. Lockman, unless otherwise ordered by this Court or a Court in the
jurisdiction where Mr. Lockman lives or works.
CONCLUSION
Plaintiff’s Discovery Motion for Leave to Take More than Ten Depositions (ECF 17) is
DENIED without prejudice and with leave to renew if and when appropriate. Plaintiff’s Motion
for Protective Order (ECF 22) is GRANTED.
IT IS SO ORDERED.
DATED this 22nd day of January, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 8 – OPINION AND ORDER