Stormo v. City of Sioux Falls et al

Filing 185

ORDER denying 179 Motion for Protective Order. Signed by U.S. District Judge Karen E. Schreier on 9/19/16. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ERIC STORMO,

4:12-CV-04057-KES
Plaintiff,

vs.

ORDER DENYING MOTION
FOR PROTECTIVE ORDER

CITY OF SIOUX FALLS, R. SHAWN
TORNOW, DAVE MUNSON, MIKE
HUETHER, PAT KNEIP, DOUG
BARTHEL, and JOHN DOE,
Defendants.
INTRODUCTION
Plaintiff, Eric Stormo, filed this pro se lawsuit naming the City of Sioux
Falls, R. Shawn Tornow, Dave Munson, Mike Huether, Pat Kneip, Doug
Barthel, and John Doe as defendants. Defendants move this court to grant a
motion for a protective order requiring depositions of Shawna Goldammer and
Regan Smith to be limited to one day each and prohibiting Stormo from
scheduling and conducting depositions without specifying a deponent. For the
following reasons, defendants’ motion is denied.
BACKGROUND
Stormo filed his complaint in April 2012. Docket 1. He alleged that
defendants violated his federal civil rights from 2005 to the present because of
his status as a landowner and landlord. Id. Stormo served defendants with the

original notice to depose Goldammer on December 23, 2015. Docket 183 at 3.
Goldammer’s deposition was rescheduled numerous times over the following
months to fit her schedule, to fit defendants’ attorney’s schedule, and because
of inclement weather. Id. During this time, Stormo claims that he requested
defendants’ and their attorneys’ availability numerous times. Id. On June 8,
2016, Stormo sent an email to defendants’ attorney Gary Thimsen asking what
times would be convenient to depose Goldammer and mentioning that he
planned to depose her over two days. Docket 184-1 at 2.
On August 5, 2015, Stormo served defendants with notice that he
planned to depose Goldammer and Smith on August 18, 2016. Docket 182-1;
Docket 182-2. On August 9, 2016, Thimsen told Stormo that he would be out
of the state on August 18, and the deposition would have to be rescheduled.
Docket 182-3. The next day, Stormo asked for Thimsen’s availability in August
and told Thimsen that he planned on taking depositions for ten days. Docket
184-2 at 3. Thimsen responded saying that he had “no intention of taking ten
consecutive days of depositions” and that because Stormo “chose to bring this
lawsuit,” it should be him, rather than Thimsen or defendants, that adapts his
schedule. Id. at 4. Thimsen did not provide his availability.
On August 12, 2016, Stormo served defendants with notice of his plans
to carry out a number of depositions between August 18 and August 29, 2016.
Docket 182-4. In the “Party Noticed For Deposition” portion of the schedule,
Stormo wrote “TBD” for August 23, August 25, August 26, and August 29. Id.
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at 3. On August 17, 2016, defendants’ attorney, Morgan Brekke, sent an email
to Stormo objecting to this notice. Docket 182-5. Brekke objected to scheduling
the Goldammer and Smith depositions over multiple days and using “TBD”
instead of scheduling specific witnesses. Id. at 1. Brekke also told Stormo that
it was too late to supplement his notice. Id. at 2. Finally, Brekke gave Stormo
until 4:30 that day to respond before defendants’ moved for a protective order.
Id.
Later that day, defendants filed this motion for a protective order. Docket
179. On August 31, 2016, Stormo responded, arguing that his actions had
been reasonable. Docket 183.
DISCUSSION
Defendants move for a protective order to limit the Goldammer and
Smith depositions to one day each. Docket 179. They also seek a protective
order preventing Stormo from scheduling dates for depositions in which he has
not identified a deponent. Id. “A party or any person from whom discovery is
sought may move for a protective order in the court where the action is pending
. . . .” Fed. R. Civ. P. 26(c)(1). “The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense[.]” Id. “The burden is therefore upon the movant to
show the necessity of [the protective order’s] issuance, which contemplates ‘a
particular and specific demonstration of fact, as distinguished from stereotyped
and conclusory statements[.]’ ” Gen. Dynamics Corp. v.. Selb Mfg. Co., 481 F.2d
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1204, 1212 (8th Cir. 1973) (quoting 8A Charles Alan Wright et al., Federal
Practice and Procedure: Civil § 2035 (3d ed. 2016).
I.

Single-Day Depositions
“Unless otherwise stipulated or ordered by the court, a deposition is

limited to one day of 7 hours.” Fed. R. Civ. P. 30(b). Defendants argue that
Stormo should be prevented from deposing Goldammer and Smith on different
days. Defendants have failed to show good cause; bifurcated depositions do not
necessarily violate Rule 30. Defendants claim that this would be oppressive
and unfair because it would give Stormo two chances to depose each deponent.
Docket 180 at 3. Stormo’s original proposal, however, was to depose both
Goldammer and Smith in single sessions, but defendants’ attorneys either
could not or would not agree to those dates. Afterwards, defendants’ attorneys
did not offer other solutions and did not respond to Stormo’s attempts to find
one. Stormo also claims that other depositions in this case have been
bifurcated. Docket 183 at 4. In this instance, scheduling the depositions over
two days is not oppressive or unfair.
Defendants also argue that it would be unduly burdensome and
annoying because deponents would have to miss multiple days of work. Docket
180 at 3. Stormo claims that he proposed two different sessions to
accommodate the deponents’ schedules because they had activities that could
not be rescheduled. Docket 183 at 4. Further, defendants’ responses to
Stormo’s notices do not suggest that they were fully cooperating, rather that
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they ignored Stormo’s requests for their schedules and availability and filed
this motion instead of coming up with a suitable time for the deposition.
Defendants have not met their burden to show the necessity of a protective
order, and their motion is denied.
II.

Scheduling Depositions as “TBD”
Defendants argue that Stormo should be prevented from scheduling

depositions without identifying the deponent.
A party who wants to depose a person by oral questions must give
reasonable written notice to every other party. The notice must
state the time and place of the deposition and, if known, the
deponent's name and address. If the name is unknown, the notice
must provide a general description sufficient to identify the person
or the particular class or group to which the person belongs.
Fed. R. Civ. P. 30(b)(1). Stormo failed to do this. He entered “TBD” in lieu of
deponent names. Defendants seek a protective order to prevent Stormo from
deposing people on these days without further notice. In his response to
defendants’ motion, however, Stormo claims that he and defendants have
agreed to a schedule for depositions. Defendants did not reply. Therefore, the
motion for a protective order is denied.
Thus, it is

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ORDERED that Defendants’ Motion for Protective Order (Docket 179) is
denied.
Dated September 19, 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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