Nieman v. Hale et al
Filing
134
Memorandum Opinion and Order: Hale's Motion for Protective Order (Dkt. No. 111 ) is DENIED, and Nieman's Motion for Enlargement of Time (Dkt. No. 129 ) is GRANTED. The Court ORDERS that the parties may now, by 9/26/2014, file any motio n related to discovery in this case or any other motion not otherwise covered by the Court's Initial Scheduling Order (Dkt. No. 34 ). The Court will reset the deadline for any dispositive motion in a future order. (Ordered by Magistrate Judge David L Horan on 8/6/2014) (cea)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JASON LEE NIEMAN,
Plaintiff,
V.
KEITH HALE, ET AL.,
Defendants.
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No. 3:12-cv-2433-L-BN
MEMORANDUM OPINION AND ORDER
Defendants Keith Hale and Insurance Search Group (together, “Hale”) filed a
Motion for Protective Order and For Suspension of Deposition requesting that the
Court forbid Plaintiff Jason Lee Nieman (“Nieman”) from making inquiry into “certain
matters” and warn Nieman that he must abide by the Federal Rules of Civil Procedure
and refrain from acting in an “unreasonable manner meant to annoy, harass,
intimidate and oppress Hale.” Dkt. No. 111 at 1 & 3. Nieman has filed a Motion for
Enlargement of Time as to Discovery and Modification of Case Scheduling Order. Dkt.
No. 129. This case has been referred to the undersigned United States Magistrate
Judge for pretrial management pursuant to a standing order of reference from United
States District Judge Sam A. Lindsay. See Dkt. No. 19.
For the reasons explained below, Hale’s Motion for Protective Order [Dkt. No.
111] is DENIED, and Nieman’s Motion for Enlargement of Time [Dkt. No. 129] is
GRANTED.
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Background
The background and procedural history of this case are well known to the
parties and to the undersigned and need not be discussed in this order.
On March 24, 2014, Nieman took a partial deposition of Hale. Hale contends
that many of the questions posed “were objectionable on the grounds of privacy,
attorney-client privilege and form. Many were argumentative and harassing.” Dkt. 111
at 1. Hale objects to questions based on allegedly incomplete email strings, to questions
requesting speculative answers and opinions on legal matters, to questions that were
compound, and to objections asserted by Nieman that Hale’s deposition answers were
non-responsive. See id. at 2. Hale provides a list of 111 proposed question that
constitute “examples of objectionable questions” in the deposition for which he asserts
an objection, see Dkt. No. 111-1, and therefore requests that the Court issue a
protective order requiring Nieman to comply with the Federal Rules of Civil Procedure.
Nieman disagrees and seeks additional time for discovery and modification of
the Court’s case scheduling order so that he may properly depose Hale. See Dkt. Nos.
128 & 129.
Legal Standards
Under Federal Rule of Civil Procedure 26(c), the Court may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense. See FED. R. CIV. P. 26(c)(1). “[T]he burden is
upon [the party seeking the protective order] to show the necessity of its issuance,
which contemplates a particular and specific demonstration of fact as distinguished
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from stereotyped and conclusory statements.” In re Terra Int’l, 134 F.3d 302, 306 (5th
Cir. 1998) (citation omitted). A party resisting discovery must show how the requested
discovery was overly broad, burdensome, or oppressive by submitting affidavits or
offering evidence revealing the nature of the burden. See Merrill v. Waffle House, Inc.,
227 F.R.D. 475, 477 (N.D. Tex. 2005).
The Court has broad discretion in determining whether to grant a motion for a
protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The
trial court is in the best position to weigh fairly the competing needs and interests of
parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
Analysis
The Court determines that Hale has failed to establish through a “particular and
specific demonstration of fact” that the proposed deposition questions, and those posed
by Nieman at the March 24, 2014 deposition, necessitate an order protecting Hale from
“annoyance, embarrassment, oppression, or undue burden or expense” under Rule
26(c). Nieman is permitted under the Federal Rules to seek, through discovery,
relevant information that is “reasonably calculated to lead to the discovery of
admissible evidence.” FED. R. CIV. P. 26(b)(1).
Hale simply lists, without explanation, 111 proposed questions that he believes
to be objectionable based on a privacy interest, attorney-client privilege, on speculation
or because the question calls for a legal conclusion, is argumentative, mischaracterizes
the evidence, is “harassing,” subjects him to “oppression,” or is repetitive. See Dkt. No.
111-1. These objections were the basis for Hale’s refusal to answer a number of
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questions during the March 24 deposition and his refusal to continue with the
deposition after approximately 70 minutes had passed. See Dkt. No. 122-4 at 7 through
122-5 at 31.
But the fact that Hale believes many of Nieman’s questions to be objectionable
does not permit him to refuse to answer them, walk out of the deposition, or obtain the
broad and non-specific protective order he seeks. Instead, Federal Rule of Civil
Procedure 30(c)(2) provides:
An objection at the time of the examination – whether to evidence, to a
party’s conduct, to the officer’s qualifications, to the manner of taking the
deposition, or to any other aspect of the deposition – must be noted on the
record, but the examination still proceeds; the testimony is taken subject
to any objection. An objection must be stated concisely in a
nonargumentative and nonsuggestive manner. A person may instruct a
deponent not to answer only when necessary to preserve a privilege, to
enforce a limitation ordered by the court, or to present a motion under
Rule 30(d)(3).
FED. R. CIV. P. 30(c)(2) (emphasis added). To be clear, Rule 30 provides only three
situations in which a deponent may refuse to respond to a deposition question. Namely,
a deponent may refrain from answering (1) to preserve a privilege, (2) to enforce a
limitation previously ordered by the Court, or (3) to present a motion under Federal
Rule of Civil Procedure 30(d)(3) to terminate or limit the deposition on the ground that
it is being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.
The only objection that Hale asserted that arguably permits his refusal to
answer the deposition questions posed is that certain information sought by Nieman
may be covered by the attorney-client privilege. See Dkt. No. 111-1 at 2. Hale has not
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cited any questions actually posed during the March 24, 2014 deposition that are
covered by the attorney-client privilege, and it is not the Court’s obligation to search
the record and assert privilege on Hale’s behalf.
At his deposition, Hale may assert privilege regarding – and is not required to
answer – questions that request information covered by the attorney-client privilege.
The attorney-client privilege prevents disclosure of communications between an
attorney and client that were made while seeking or rendering legal services. See
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “[T]he attorney-client privilege
attaches only to communications made for the purpose of giving or obtaining legal
advice or services, not business or technical advice or management decisions.” Stoffels
v. SBC Communications, Inc., 263 F.R.D. 406, 411 (W.D. Tex. 2009) (citing Navigant
Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 474 (N.D. Tex. 2004)). Only
communications made “for the purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some legal proceeding” are privileged.
United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985) (internal citations
omitted).
The burden is on the party asserting the privilege to demonstrate how the
information satisfies all the elements of the privilege. See Hodges, Grant & Kaufmann
v. United States, 768 F.2d 719, 721 (5th Cir. 1985). Additionally, the party asserting
the attorney-client privilege must prove that waiver by breach of confidentiality did not
occur. See id. It is well settled that disclosure of attorney-client communications to a
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third party lacking a common legal interest will result in a waiver of the privilege. See
In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992).
On the record before the Court, Hale has not established that he is entitled to
a protective order to protect him from “annoyance, embarrassment, oppression, or
undue burden or expense.” FED. R. CIV. P. 26(c). The Court’s review of the deposition
transcript suggests that Hale himself unnecessarily asserted objections to numerous
questions, refused to answer questions due to objections that did not assert privilege,
and failed to comply with his discovery obligations. Hale is not eligible for a protective
order simply based on his belief that Nieman is a vexatious litigant with a frivolous
case. Good cause does not exist to prohibit the gathering of relevant discovery through
Hale’s deposition in this matter.
The Court finds that Hale has failed to show good cause and a specific need for
protection or that justice requires his protection from any annoyance, embarrassment,
oppression, or undue burden or expense represented by the deposition.
To assist the parties in the prompt and efficient conclusion of the deposition of
Hale, the Court will permit the deposition to take place in the Court’s courtroom or
conference room, on the 15th Floor of the Earle Cabell Federal Building in Dallas,
Texas, on or before September 15, 2014. Therefore, the parties shall, by August 15,
2014, confer by telephone and find four dates on or before September 15, 2014 on which
both parties are able to appear at such a deposition and then prepare and file a joint
status report providing those dates for the Court’s review. The Court will then schedule
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the deposition and will be available to settle any disputes regarding privilege that arise
during the deposition.
Because Hale did not fully participate in the March 24, 2014 and due to the
Court’s stay of discovery during its sua sponte consideration of summary judgment, an
extension of the discovery deadlines is appropriate. Accordingly, Nieman’s Motion for
Enlargement of Time, which seeks a 60-day extension of the deadline set forth in the
Court’s July 7, 2014 Order, is GRANTED.
The Court ORDERS that the parties may now, by September 26, 2014, file any
motion related to discovery in this case or any other motion not otherwise covered by
the Court’s Initial Scheduling Order [Dkt. No. 34]. The Court will reset the deadline
for any dispositive motion in a future order.
Conclusion
Hale’s Motion for Protective Order [Dkt. No. 111] is DENIED, and Nieman’s
Motion for Enlargement of Time [Dkt. No. 129] is GRANTED.
SO ORDERED.
DATED: August 6, 2014
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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