Gonzalez v. IronTiger Logistics, Inc. et al
Filing
70
MEMORANDUM AND OPINION denying 64 MOTION for Protective Order. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)
United States District Court
Southern District of Texas
ENTERED
October 22, 2020
David J. Bradley, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SAMANTHA F.
GONZALEZ,
Plaintiff,
vs.
IRONTIGER
LOGISTICS, et al,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO.
4:18-cv-03454
JUDGE CHARLES ESKRIDGE
MEMORANDUM AND OPINION DENYING
MOTION FOR PROTECTIVE ORDER
The motion by Defendants IronTiger Logistics, Inc, Dealers
Choice Truckaway System, Inc, and Scott Dale Osterhout
seeking a protective order is denied. Dkt 64.
1. Background
This case arises out of a head-on collision on the I-10 freeway
between a Mack truck driven by Osterhout and a car driven by
Rene Llamas, Jr. The accident killed Llamas and his child, minor
XL. Plaintiff Samantha F. Gonzalez is the child’s mother. She
brought a wrongful death action against Osterhout, IronTiger
Logistics, Dealers Choice, and Defendant Truck Movers
International, Inc.
The parties dispute the taking of the depositions of certain
defense witnesses, being a Rule 30(b)(6) corporate representative
and their four retained expert witnesses. The COVID-19
pandemic presents logistical and safety concerns.
The present motion comes after months of delays,
scheduling conflicts, and health concerns that prevented the
depositions from occurring. All case deadlines were stayed in
April of this year “pending completion of the requested
depositions.” Dkt 61 at 2. That order presumptively required the
depositions to proceed in person, rather than by video
conference. The depositions were at that time scheduled for the
end of July and early August, with the underlying assumption that
in-person depositions would be safe by then. But the pandemic
worsened through that time. Dkt 64 at 4.
Plaintiff refused to cancel the scheduled depositions, so
Defendants sent an initiation discovery-dispute letter pursuant to
this Court’s procedures. Defendants were ordered to bring a
motion for protective order. See Minute Entry, 07/20/2020.
They then brought the subject motion, seeking a four-month
delay “in order to allow them to take place in person, or
alternatively impose reasonable limits on such depositions.” Dkt
64 at 1.
2. Legal standard
Rule 26(c) allows a district court to grant protective orders
that limit the extent and manner of discovery in order to “protect
a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” These rules “leave it to the
enlightened discretion of the district court to decide what
restrictions may be necessary in a particular case.” Charles Alan
Wright and Arthur R. Miller, Federal Practice and Procedure § 2036
(3d ed 2002); see In re LeBlanc, 559 F Appx 389, 392–93 (5th Cir
2014); Crawford v Blue Ridge Metals Corp, 2020 WL 4001093, *2
(WDNC) (analyzing whether to issue protective order because of
COVID-19).
The party seeking such an order must show good cause and
a specific need for protection. In re Terra International Inc, 134 F3d
302, 306 (5th Cir 1998). The court must compare relative burdens
and benefits when considering a request for protection—the
hardship borne by the party complying with the discovery versus
the probative value gained by the opponent obtaining the
information. Cazorla v Koch Foods of Mississippi LLC, 838 F3d 540,
555 (5th Cir 2016).
3. Analysis
Defendants argue that the factual disputes in this case are too
complex for virtual depositions, witnesses cannot be prepared
virtually, and there is no cost to delaying depositions. Dkt 64 at
2
6–8. Gonzalez argues that virtual depositions have been
successful in many complex cases, video depositions solve the
problems raised by telephonic depositions, and there is abundant
caselaw endorsing virtual depositions—especially in light of the
current pandemic. Dkt 65 at 5–9.
The COVID-19 pandemic has presented substantial
difficulties to communities and persons, with a reordering of
society that has tightened some restrictions on conduct when
deemed necessary. The legal system must persevere while taking
into account the health and safety of all those made part of the
process. Delaying depositions, hearings, and trials until the
pandemic has entirely subsided is unrealistic and would create an
unmanageable workload for the court system at that later time. A
view towards overall postponement could also result in neverending delay as judges try to “predict the end of an unparalleled
global health crisis.” Impulsora de Marcas e Intangibles, SA de CV v
Dos Amigos, Inc, 2020 WL 4577149, *2 (WD Tex).
The courts are now balancing these interests and concerns
by ordering parties to proceed with litigation virtually. This is
particularly true of depositions. See id at *1; Reynard v Washburn
University of Topeka, 2020 WL 3791876, *6 (D Kan) (ordering
virtual deposition for elderly party at heightened risk of COVID19 exposure); Sonrai Systems, LLC v Romano, 2020 WL 3960441,
*1 (ND Ill) (granting protective order in favor of virtual
depositions due to pandemic).
The one case cited by Defendants to support delaying
depositions is unpersuasive here. In GREE, Inc v Supercell Oy, the
court considered a motion to compel depositions in a patent
infringement case. 2020 WL 2473553, *3 (ED Tex). The court
denied the motion because the requested depositions were both
speculative and duplicative. Ibid. And the court noted that the
party to be deposed had already provided “an alternative avenue
in which to obtain the information,” including “written
questions” and remote access. Ibid. The uncertainty posed by
COVID-19 played almost no part in the decision of that court. If
anything, GREE supports the use of virtual alternatives to inperson depositions.
3
Concerns expressed by Defendants about the logistics of
virtual depositions simply don’t comport with available
technology. The Eastern District of Louisiana in SAPS v EZ Care
Clinic recently ordered virtual depositions to proceed, noting that
cases decided prior to modern video-conferencing technology are
becoming less persuasive. 2020 WL 1923146, *1–2 (ED La); see
also Rouviere v DePuy Orthopaedics, Inc, 2020 WL 3967665, *4
(SDNY) (logistical difficulties shouldn’t prevent virtual
depositions from proceeding). And parties in far more complex
cases have also successfully taken virtual depositions. The
Northern District of Illinois recently ordered virtual depositions
to proceed in In re Broiler Chicken Antitrust Litigation, which
involves “three putative classes, over 100 opt-out DAPs, more
than 20 Defendants, dozens of lawyers, and the United States
Department of Justice, as intervenor, watching everything that is
going on because of a parallel grand jury investigation, and at least
one pending felony indictment.” 2020 WL 3469166, *1 (ND Ill).
The Southern District of New York in In re Keurig Green Mountain
Single-Serve Coffee Antitrust Litigation likewise recently ordered a
deponent to sit for a virtual deposition, noting that the parties
had already conducted 37 such depositions. 2020 WL 3271623,
*1 (SDNY).
Gonzalez makes a compelling argument in favor of these
depositions proceeding now, even if trial isn’t imminent.
Memories fade and witnesses become unavailable with the
passage of time in all cases. She also argues here that information
obtained in these depositions could assist in settlement
negotiations. And precise settlement discussions are especially
important in a wrongful-death matter because so many of these
cases end in settlement. Dkt 65 at 10–11. But even if the
depositions only serve to confirm the current positions of the
parties, that information will help determine whether to take the
case to trial.
Litigation in the final quarter of 2020 looks very different
than it did in its earlier months. The pandemic has forced
everyone to adapt to change in these uncertain times. But “the
economic administration of justice” must proceed—even if it
4
requires litigants and the court to overcome new challenges. See
Impulsora, 2020 WL 4577149, *2.
4. Conclusion
The motion by Defendants for a protective order is DENIED.
A separate order will issue separately with guidelines for the
parties to follow when conducting virtual depositions.
SO ORDERED.
Signed on October 22, 2020, at Houston, Texas.
Hon. Charles Eskridge
United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?