Pia v. Supernova Media et al

Filing 367

MEMORANDUM DECISION finding as moot 273 Motion for Protective Order ; finding as moot 283 Motion for Protective Order ; denying 290 Motion for Protective Order ; granting 343 Motion to Take Deposition from Charles Morrison and Stewart Rahr aft the fact discovery deadline ; denying 357 Motion for Protective Order. Signed by Magistrate Judge Paul M. Warner on 04/05/2012. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JOSEPH G. PIA, an individual,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
Case No. 2:09-cv-840-CW-PMW
SUPERNOVA MEDIA, INC., a New York
corporation; et al.,
Defendants.
District Judge Clark Waddoups
SUPERNOVA MEDIA, INC., a New York
corporation; et al.,
Counterclaim Plaintiffs,
v.
JOSEPH G. PIA,
Counterclaim Defendant.

SUPERNOVA MEDIA, INC., a New York
corporation; et al.,
Third-Party Plaintiffs,
v.
BENNETT TUELLER JOHNSON &
DEERE, LLC, a Utah limited liability
company; et al.,
Third-Party Defendants.

Magistrate Judge Paul M. Warner

District Judge Clark Waddoups referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court are (1) Supernova Media, Inc., et al.’s
(collectively, “Defendants”) motion for a protective order concerning certain depositions2 and
Bennett Tueller Johnson & Deere’s (“BTJD”) cross-motion for a protective order concerning the
same depositions;3 (2) Joseph G. Pia (“Pia”) and Pia, Anderson, Dorius, Reynard & Moss’s
(“PADRM”) motion for a protective order concerning document production;4 (3) Pia, BTJD,
PADRM, and Stucki, Steele & Rencher’s (“SSR”) (collectively, “Movants”) joint motion to take
the depositions of Charles Morrison (“Mr. Morrison”) and Stewart Rahr (“Mr. Rahr”) after the
fact discovery deadline;5 and (4) Defendants’ motion for protective order concerning the
deposition of Mr. Larry Richert (“Mr. Richert”).6 The court has carefully reviewed the written
memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the
United States District Court for the District of Utah, the court has concluded that oral argument is
not necessary and will determine the motions on the basis of the written memoranda. See
DUCivR 7-1(f).

1

See docket no. 355.

2

See docket no. 273.

3

See docket no. 283.

4

See docket no. 290.

5

See docket no. 343.

6

See docket no. 357. The court recognizes that Defendants have not yet filed a reply
memorandum on this motion. Given the time-sensitive nature of the motion, the court has
determined that ruling without a reply is appropriate.
2

As an initial matter the court sets forth the general standards governing the
above-referenced discovery motions. The general scope of discovery is governed by rule
26(b)(1) of the Federal Rules of Civil Procedure, which provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . .
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Rule 26(c)
allows the court, for good cause, to enter a protective order “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c).
“The district court has broad discretion over the control of discovery, and [the Tenth
Circuit] will not set aside discovery rulings absent an abuse of that discretion.” Sec. & Exch.
Comm’n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (quotations and
citations omitted). “[T]he scope of discovery under the federal rules is broad and . . . ‘discovery
is not limited to issues raised by the pleadings, for discovery itself is designed to help define and
clarify the issues.’” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). “Although the scope of
discovery under the federal rules is broad, . . . parties may not engage in a ‘fishing expedition’ in
an attempt to obtain evidence to support their claims or defenses.” Richards v. Convergys Corp.,
No. 2:05-cv-00790-DAK & 2:05-cv-00812-DAK, 2007 U.S. Dist. LEXIS 9131, at *10 (D. Utah
Feb. 6, 2007) (quoting Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1169 (10th Cir. 2000)).
The court now turns to addressing the above-referenced motions. The court will address
them in the order listed above.

3

I. Defendants’ Motion for Protective Order and BTJD’s Cross-Motion for Protective
Order Concerning Certain Depositions
These two motions relate to a dispute about the location and duration of certain
depositions to be taken by BTJD. In its reply memorandum on its cross-motion for a protective
order, BTJD has indicated that the depositions in question have been completed. Accordingly,
these two motions are now moot.
II. Pia and PADRM’s Motion for Protective Order Concerning Document Production
In this motion, Pia and PADRM seek a protective order concerning the production of a
document, namely, an unsigned, draft operating agreement (“Agreement”) of Stucki, Steele, Pia,
Anderson & Rencher, LLC (“SSPAR”). SSPAR was at one time a law firm, but is no longer in
existence. Some former members of SSPAR are now members of either SSR or PADRM.
Defendants have sought production of the Agreement through discovery.
In their motion, Pia and PADRM argue that the Agreement is not relevant in this case
because it is in draft, redline form and was never fully executed. Pia and PADRM also assert
that because the Agreement is in redline form, it shows “confidential thinking of one or more
former members of SSPAR.”7 Consequently, Pia and PADRM argue, the Agreement is not
relevant and production of it will cause annoyance, embarrassment, and/or oppression. In
response, Defendants assert that the document is relevant to at least two major issues in this case.
Defendants also contend that the Agreement is not shielded from discovery simply because it
may contain confidential information.

7

Docket no. 291 at 4.
4

The court agrees with Defendants’ arguments. First, under the broad scope of discovery,
as described above, the court concludes that the Agreement is relevant to the claims and defenses
in this case and, therefore, is discoverable. In reaching that conclusion, however, the court
expresses no opinion about whether the Agreement will eventually be admissible. Admissibility
determinations will be made by the trial judge, if necessary, at the appropriate phase of the case.
Second, Pia and PADRM have failed to persuade the court that any confidential information in
the Agreement prevents it from being produced in discovery. Confidentiality does not equate to
privilege. Indeed, as noted by Defendants, confidentiality is not, by itself, a sufficient basis for
resisting production of the Agreement.
For these reasons, Pia and PADRM’s motion for a protective order concerning production
of the Agreement is denied. Pia and PADRM shall produce the Agreement to Defendants within
fourteen (14) days of the date of this order. The court will order, however, that the Agreement
shall not be disclosed to the public or to non-involved parties, except as necessary for purposes of
this litigation.
III. Movants’ Joint Motion to Take the Depositions of Mr. Morrison and Mr. Rahr
After the Fact Discovery Deadline
In this motion, Movants seek court permission to take the depositions of Mr. Morrison
and Mr. Rahr after the fact discovery deadline. Movants assert that they have been unsuccessful
in their attempts to serve both Mr. Morrison and Mr. Rahr with deposition subpoenas.
Consequently, Movants have filed motions in the jurisdictions where Mr. Morrison and Mr. Rahr
reside requesting that Movants be allowed to serve deposition subpoenas through alternate means
of service. Because the current fact discovery deadline of April 9, 2012, will expire in several

5

days, Movants assert that they should be allowed to take the depositions of Mr. Morrison and Mr.
Rahr after the deadline expires.
In response, Defendants argue that Movants should not be allowed to take the depositions
after the fact discovery deadline for several reasons. First, Defendants argue that Movants have
been dilatory in seeking to take the depositions of Mr. Morrison and Mr. Rahr. Second,
Defendants assert that an open-ended extension of fact discovery would create an uncertain
ending to that phase of the case and could impact other dates in the current scheduling order.
Finally, Defendants contend that the depositions of Mr. Morrison and Mr. Rahr are not essential
to this case.
Pursuant to rule 6(b) of the Federal Rules of Civil Procedure, the court is permitted to
extend deadlines for good cause. See Fed. R. Civ. P. 6(b). Likewise, pursuant to rule 16(b)(4) of
the Federal Rules of Civil Procedure, the court may modify dates in a scheduling order for good
cause. See Fed. R. Civ. P. 16(b)(4).
For the following reasons, the court is unpersuaded by Defendants’ arguments. First,
with respect to the timing of the depositions, the court agrees with Defendants’ assertion that
Movants could have sought to take those depositions much earlier in this case. However,
Defendants have failed to demonstrate that they will suffer prejudice if the depositions are
allowed to go forward after the fact discovery deadline has expired. Furthermore, full discovery
often facilitates resolution of cases when the parties are more fully informed about all the
relevant facts.
Second, the court can satisfy Defendants’ concerns about an open-ended discovery period
by simply setting a deadline for the depositions to occur. The court will set that deadline below.
6

Concerning the impact of the depositions on other dates in the scheduling order, that issue is not
currently before the court. If any party believes that an extension of any date or deadline is
necessary, that party is free to file an appropriate motion with the court.
Finally, the court is unpersuaded by Defendants’ argument that the depositions are not
essential to this case. To the contrary, the court finds merit in the reasons provided by Movants
for the necessity of the depositions.
For these reasons, the court concludes that Movants have demonstrated good cause for
permitting the depositions of Mr. Morrison and Mr. Rahr to occur after the fact discovery
deadline. Accordingly, Movants’ motion is granted. The court orders that the depositions of Mr.
Morrison and Mr. Rahr shall occur on or before April 30, 2012. If an extension of that deadline
proves necessary, Movants are free to file a motion seeking additional time to conduct the
depositions.
IV. Defendants’ Motion for Protective Order Concerning the Deposition of Mr. Richert
In this motion, Defendants seek a protective order preventing the deposition of Mr.
Richert from being taken as noticed on April 9, 2012. Defendants assert that the deposition
should not go forward because Pia and PADRM did not confer with Defendants’ counsel prior to
noticing the deposition, the deposition was set for an inconvenient day, and the deposition was
outside the fact discovery deadline. For the following reasons, the court concludes that
Defendants’ arguments are without merit.
First, while it would have been the professional and courteous practice for Pia and
PADRM to confer with Defendants’ counsel to select an agreeable date prior to noticing the
deposition of Mr. Richert, Defendants have not demonstrated how the lack of a meet-and-confer
7

has caused them any prejudice. While on this issue, the court feels compelled to instruct counsel
about the common practice for scheduling depositions in this court. Counsel should always
attempt to meet-and-confer prior to simply noticing a deposition for a unilaterally selected date.
That is the professional, courteous, and acceptable practice in this district. Counsel should
comply with that standard for the scheduling of any future depositions in this case.
Second, the fact that the deposition was scheduled for an inconvenient day is not grounds
for preventing the deposition altogether. In the court’s view, inconvenience is not the equivalent
of prejudice. As indicated below, the deposition of Mr. Richert will go forward and, as noted
above, counsel should meet-and-confer in an effort to select an agreeable date for the deposition
within the time frame established by the court.
Finally, the court is unwilling to accept Defendants’ reading of an order entered by the
court on March 23, 2012.8 In that order, the court extended the fact discovery deadline to April
9, 2012. Defendants ask the court to interpret that order as extending the fact discovery deadline
only for the purpose of completing another deposition. Such an interpretation is contrary to the
plain language of the order, which states that “[t]he fact discovery deadline is extended to April
9, 2012.”9 In light of that language, the court concludes that the fact discovery deadline was
extended, without qualification, to April 9, 2012. Accordingly, Mr. Richert’s deposition noticed
for April 9, 2012, clearly falls within that deadline.

8

See docket no. 339.

9

Id. at 3.
8

Based on the foregoing, Defendants’ motion for a protective order concerning Mr.
Richert’s deposition is denied. Mr. Richert’s deposition shall go forward, but the court will
neither require nor allow it to go forward on April 9, 2012, for various reasons, including the
availability of the deponent, the availability of counsel, and the requirement for counsel to travel
over the upcoming holiday weekend. Instead, the court orders that Mr. Richert’s deposition shall
take place sometime after March 9, 2012, but on or before April 30, 2012.
*****
In summary, IT IS HEREBY ORDERED:
1.

Defendants’ motion for a protective order10 and BTJD cross-motion for a
protective order11 are both MOOT.

2.

Pia and PADRM’s motion for a protective order concerning production of the
Agreement12 is DENIED.

3.

Movants’ joint motion to take the depositions of Mr. Morrison and Mr. Rahr after
the fact discovery deadline13 is GRANTED.

10

See docket no. 273.

11

See docket no. 283.

12

See docket no. 290.

13

See docket no. 343.
9

4.

Defendants’ motion for a protective order concerning the deposition of Mr.
Richert14 is DENIED.

IT IS SO ORDERED.
DATED this 5th day of April, 2012.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

14

See docket no. 357.
10