George v. Pennsylvania Turnpike Commission

Filing 59

MEMORANDUM AND ORDER re 52 MOTION to Compel Discovery Plaintiff's Motion to Compel Deposition of Mark Compton filed by Biju George. Theplaintiffs motion to compel the deposition of Mr. Compton is DENIED. Signed by Magistrate Judge Martin C. Carlson on May 27, 2020. (kjn)

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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BIJU GEORGE,

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Plaintiff,
v.
PENNSYLVANIA TURNPIKE
COMMISSION,
Defendant.

CIVIL NO. 1:18-CV-766

(Judge Rambo)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On April 9, 2018, the plaintiff brought this workplace ethnic discrimination
lawsuit against the Pennsylvania Turnpike Commission. The gist of this litigation
involves allegations that the plaintiff, Biju George, was discriminated against and
fired by his supervisor at the Turnpike Commission, Scott Fairholm, due to his
ethnicity. One year after Georg’s termination it seems that Fairholm, George’s
workplace antagonist, was also fired from his position at the Turnpike Commission.
For a number of months the parties have been embroiled in a series of
discovery disputes, disputes which presumably should have drawn to a close on
March 9, 2020 when the fact discovery deadline set by the district court elapsed.
Sadly, this was not the case. Instead, discovery disputes continued to divide these
parties even after the fact discovery deadline came to a close.
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One of these recent discovery disputes relates a May 2020 request by the
plaintiff to compel the deposition of Mark Compton, the CEO of the Turnpike
Commission. Mr. Compton’s deposition was not sought by the plaintiff during the
first two years of this lawsuit, and the plaintiff did not seek to depose Mr. Compton
prior to the expiration of the fact discovery deadline in this case, March 9, 2020.
Instead, this discovery demand seemingly arose in May 2020, almost two months
after the discovery deadline passed and two years after this lawsuit was filed. This
request is now the subject of an informal letter motion to compel filed by the
plaintiff. (Doc. 52).
For the reasons set forth below, this motion will be DENIED.
Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery, and provides that:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or discovery. . . .
Fed. R. Civ. P. 37(a).
The scope of what type of discovery may be compelled under Rule 37 is
defined, in turn, by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which
provides that:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
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matter that is relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to be
discoverable.
Fed. R. Civ. P., Rule 26(b)(1).
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding Rule 37 motions are
Acommitted to the sound discretion of the district court.@ DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).
Therefore, a court’s decisions regarding the conduct of discovery, will be disturbed
only upon a showing of an abuse of discretion. Marroquin-Manriquez v. I.N.S., 699
F.2d 129, 134 (3d Cir. 1983). Likewise, discovery sanction decisions rest in the
sound discretion of the court. Grider v. Keystone Health Plan Cent., Inc., 580 F.3d
119, 134 (3d Cir. 2009).
This far-reaching discretion extends to rulings by United States Magistrate
Judges on discovery matters. In this regard:

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District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , Acourts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.@ Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling Ais entitled to great deference and is reversible
only for abuse of discretion.@ Kresefky v. Panasonic Commc'ns and
Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
The exercise of this discretion is guided by certain basic principles. At the
outset, “where a party has submitted an untimely discovery request, the court can,
and in the exercise of its discretion often should, refuse to compel compliance with
that request. See, e.g., Maslanka v. Johnson & Johnson, 305 F.App'x 848 (3d
Cir.2008) (affirming denial of pro se litigant motion to compel where discovery
demands were untimely); Oriakhi v. United States, 165 F.App'x 991 (3d Cir.2006)
(same); Bull v. United States, 143 F.App'x 468 (3d Cir.2005) (same).” Quarles v.
Palakovich, No. 3:07-CV-1905, 2010 WL 3716199, at *2 (M.D. Pa. Sept. 16, 2010).

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In addition, the “apex doctrine” cautions against lightly granting requests like
the request made here to compel depositions of high ranking agency officials. “The
‘apex doctrine’ is an analytical framework used by courts in assessing whether to
permit the depositions of individuals at the ‘apex’ of corporations and other entities.
The doctrine recognizes that depositions of high-level officers severely burdens
those officers and the entities they represent, and that adversaries might use this
severe burden to their unfair advantage.” United States ex rel. Galmines v. Novartis
Pharm. Corp., No. CV 06-3213, 2015 WL 4973626, at *1 (E.D. Pa. Aug. 20, 2015).
In deciding if the deposition of an individual at the ‘apex’ of a
corporation or other entity is appropriate, district courts within the
Third Circuit consider two factors: “1) whether the executive has
personal, superior, or unique knowledge on the relevant subject; and 2)
whether the information can be obtained in a less burdensome way,
such as through lower-level employees or other discovery methods.” In
re Tylenol (Acetaminophen) Mktg., Sales Practices & Prod. Liab.
Litig., No. 2:13-MD-2436, 2014 WL 3035791, at *3 (E.D. Pa. July 1,
2014) (citations omitted).
Cartagena v. Serv. Source, Inc., No. 1:17-CV-742, 2019 WL 355728, at *4 (M.D.
Pa. Jan. 29, 2019).
In this case, in the exercise of our discretion, we will DENY this request to
conduct an apex deposition of Mr. Compton. At the outset, we deem the request to
be untimely. This request was made years after this lawsuit began and months after
the fact discovery deadline elapsed. Thus, as a mere chronological exercise, this
request is tardy. The untimeliness of this request is further highlighted by the proffer
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of relevance made by the plaintiff in support of this motion to depose Mr. Compton.
According to the plaintiff, a deposition of Mr. Compton, the apex official at the
Turnpike Commission, is justified here because Fairholm consulted with Mr.
Compton before he terminated the plaintiff, and one year later Mr. Compton
participated in the decision to fire Fairholm. However, it is clear from the deposition
transcripts provided by the plaintiff that Mr. George and his counsel were aware of
these facts in October and December of 2019, months before the discovery deadline
passed. Therefore, the failure to raise this issue in a more timely manner cannot be
explained or excused. In particular, we note that, on March 11, 2020, when we began
addressing various other discovery disputes with the parties, we were asked by the
plaintiff to permit the deposition of Ms. Norris, an HR specialist at the Commission,
regarding Scott Fairholm’s termination. Had the plaintiff also planned to seek Mr.
Compton’s deposition, this would have been the appropriate opportunity to make
this request. The plaintiff did not do so, and this failure to act in a timely fashion
now bars this belated discovery demand.
Moreover, beyond being untimely, in our view this apex official discovery
deposition request fails on its merits. As we have noted such requests are disfavored
and require a showing of two factors: 1) whether the executive has personal,
superior, or unique knowledge on the relevant subject; and 2) whether the
information can be obtained in a less burdensome way, such as through lower-level
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employees or other discovery methods. Cartagena v. Serv. Source, Inc., No. 1:17CV-742, 2019 WL 355728, at *4 (M.D. Pa. Jan. 29, 2019). The instant request fails
on both of these scores. First, while it appears that Mr. Compton had some familiarity
with Fairholm’s decision to fire George and participated in the decision one year
later to fire Fairholm, it cannot be said that he possessed superior, or unique
knowledge of these events. Indeed, as to the most relevant of these events, the
decision to fire Biju George, Mr. Compton’s knowledge would appear to be inferior
to that of the actual decision-maker, Mr. Fairholm, or the Commission’s HR staff,
both of whom have been deposed. The fact that others possess knowledge of these
events which would appear to be more detailed than Mr. Compton’s, in turn, reveals
that this information can and has been obtained in a less burdensome way, such as
through lower-level employees or other discovery methods.
Accordingly, finding this request to be untimely and the showing made in
support of the request to be inadequate to justify an apex official deposition, the
plaintiff’s motion to compel the deposition of Mr. Compton (Doc. 53) is DENIED.
So ordered this 27th day of May 2020.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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