B. Fernandez & Hnos., Inc. v. International Brotherhood of Teamsters,et al

Filing 78

OPINION AND ORDER. GRANTED 76 Motion for Protective Order. Signed by Judge Salvador E. Casellas on 9/25/2012. (AVB) (Main Document 78 replaced on 9/25/2012 to correct typographical error) (cm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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B. FERNANDEZ & HNOS., INC.,

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Plaintiff,

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v.

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Civil No. 11-1567 (SEC)

INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, ET AL.,
Defendants.

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OPINION AND ORDER

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Before the Court are co-defendant International Brotherhood of Teamsters’ (“IBT”)

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motion to for protective order (Docket # 76), and the plaintiff’s opposition thereto (Docket #

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77). After reviewing the filings and the applicable law, IBT’s motion is GRANTED.

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On September 21, 2012, IBT moved to seek a protective order from this court to prevent

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the plaintiff from deposing James P. Hoffa, IBT’s president. The deposition, which was notified

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on September 5, 2012, is scheduled for today at 1:00pm. IBT submits, among other grounds that

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because Hoffa lacks knowledge of the discovery sought, and because the plaintiff has failed to

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exhaust other less intrusive discovery methods, such as depositions of lower-ranked IBT

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corporate officers, the protective order should be granted.

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At the outset, the Court does not appreciate IBT’s waiting until last Friday—16 days after

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receiving the Notice of Deposition—to file the instant motion. While the motion is technically

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timely, as it was filed before the day of the deposition, see 6-26 Moore’s Federal Practice - Civil

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§ 26.102 [2], the Court has had less than 24 hours to review the plaintiff’s response, which was

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filed yesterday. IBT is thus admonished that this court will not tolerate this sort of

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gamesmanship next time around.

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CIVIL NO. 11-1567 (SEC)

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A court may issue an order “to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense . . .” Fed. R. Civ. P. 26(c)(1). As relevant here, a party

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seeking to quash a deposition in its entirety must show “extraordinary” or “exceptional”

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circumstances. E.g., Prozina Shipping Co., Ltd. v. Thirty-Four Automobiles, 179 F.R.D. 41, 48

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(D. Mass. 1998) (prohibiting taking of deposition is extraordinary measure for which moving

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party has burden of showing extraordinary circumstances based on specific facts that would

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justify such an order). If, however, “[a] deponent is a high-level corporate officer who certifies

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that he has no personal knowledge of the facts, the court may grant a protective order requiring

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the deposing party to first seek discovery through less intrusive methods, e.g., from lower level

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employees who are more likely to have direct knowledge.” 6-26 Moore’s Federal Practice -

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Civil § 26.105 [2] [a] (citing, inter alia, Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)

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(upholding issuance of protective order requiring plaintiff to depose other employees that

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defendant indicated had more knowledge of facts before deposing corporate defendant’s

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president); Mulvey v. Chrysler Corp., 106 F.R.D. 364, 366 (D.R.I. 1985) (when then-Chrysler

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president Lee Iacocca signed affidavit professing ignorance to information sought by plaintiffs,

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court required discovery to proceed against Iacocca initially by interrogatory)).

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If the movant meets its burden, the court may issue an appropriate protective order, including

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an order “forbidding the disclosure or discovery . . . .” Fed. R. Civ. P. 26(c)(1)(A).

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Viewing IBT’s request under the totality of circumstances, see Patterson v. Avery

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Dennison Corp., 281 F.3d 676, 681-682 (7th Cir. 2002), a protective order precluding the

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deposition of Hoffa, who has filed an affidavit attesting to his lack of knowledge regarding the

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discovery sought by the plaintiff, is warranted. See Thomas v. International Bus. Machs., 48

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F.3d 478, 483 (10th Cir. 1995) (deposition of corporate officer in age discrimination action was

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quashed when proposed deponent submitted an affidavit swearing that he lacked personal

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knowledge of plaintiff and her work performance). The plaintiff’s opposition contains no

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CIVIL NO. 11-1567 (SEC)

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explanation as to whether it first attempted to obtain the desired information through less

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burdensome means. The plaintiff has likewise failed to convince this court that Hoffa’s

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deposition would yield otherwise inaccessible information. For instance, the plaintiff does not

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explain why Hoffa’s deposition is necessary in lieu of deposing a lower-level IBT executive.

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See General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002)

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(courts will often deny request to depose high-ranking corporate official when lower-ranking

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executives have access to same information).

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Moreover, the plaintiff’s Notice of Deposition (Docket # 77-2, p. 6) is exceedingly

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broad and hence unreasonable, as it fails to pinpoint the specific testimony sought to be elicited

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from Hoffa. In sum, Hoffa, in his position as the President of the IBT, “[i]s particularly

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vulnerable to unwarranted harassment and abuse that [his] deposition may produce, and he has

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a right to be protected from such harassment.” Berning v. UAW Local 2209, 242 F.R.D. 510,

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514 (N.D.Ind. 2007) (citations omitted). To be sure, this ruling does not constitute a total

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prohibition from taking Hoffa’s deposition. Rather, if the plaintiff can convincingly show that

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the testimony of other IBT employees or that propounding interrogatories to Hoffa were

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unsatisfactory, the Court will allow the taking of Hoffa’s deposition. Salter, 593 F.2d at 651.

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For the reasons stated, IBT’s motion for protective order is GRANTED.

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IT IS SO ORDERED.

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In San Juan, Puerto Rico, this 25th day of September, 2012.

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S/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge