Equal Employment Opportunity Commission v. Holmes & Holmes Industrial

Filing 53

MEMORANDUM DECISION AND ORDER granting 45 Motion to Expedite. Signed by Magistrate Judge Paul M. Warner on 12/6/11 (alt)

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

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
HOLMES & HOLMES INDUSTRIAL,
INC., a Utah corporation,

Case No. 2:10-cv-955-DAK-PMW

Defendant.

JOBY BRATCHER and ANTONIO
BRATCHER,
Plaintiffs-in-Intervention,
v.
HOLMES & HOLMES INDUSTRIAL,
INC., a Utah corporation; H3GROUP,
INC.; MICHAEL H. HOLMES; RON K.
HOLMES; PAUL FACER; DOES 1-20,
Defendants-in-Intervention.

District Judge Dale A. Kimball
Magistrate Judge Paul M. Warner

District Judge Dale A. Kimball referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is Paul Facer’s (“Mr. Facer”) expedited
motion for leave to take the depositions of Joby Bratcher and Antonio Bratcher (collectively,

1

See docket no. 31.

“Plaintiffs”).2 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 motion on the basis of the written memoranda. See DUCivR 7-1(f).
BACKGROUND
On September 28, 2010, the Equal Employment Opportunity Commission (“EEOC”)
filed this action on behalf of Plaintiffs, alleging violations of Title VII.3 On October 15, 2010,
Plaintiffs moved to intervene in the EEOC’s case.4 In November and December 2010, attorneys
from the law firm of Christensen & Jensen appeared on behalf of Holmes & Holmes Industrial,
Inc.; H3Group, Inc.; Michael H. Holmes; Ron K. Holmes; and Mr. Facer (collectively,
“Defendants”).5 On December 8, 2010, the court granted Plaintiffs’ motion to intervene,6 and
Plaintiffs filed their complaint-in-intervention against Defendants on December 10, 2010.7
From April through June 2011, the parties engaged in discovery. Defendants scheduled
Plaintiffs’ depositions for July 11, 2011. On or about July 6, 2011, an attorney from Christensen
& Jensen notified the EEOC and Plaintiffs for the first time that Mr. Facer would probably be

2

See docket no. 45.

3

See docket no. 2.

4

See docket no. 10.

5

See docket nos. 13, 14, 20.

6

See docket no. 18.

7

See docket no. 19.
2

obtaining separate counsel because of a possible conflict of interest. On July 7, 2011,
Christensen & Jensen referred the representation of Mr. Facer to the law firm of Richards Brandt
Miller Nelson. On July 8, 2011, an attorney from Richards Brandt Miller Nelson filed a
substitution of counsel on behalf of Mr. Facer.8 On July 14, 2011, another attorney from
Richards Brandt Miller Nelson filed a notice of appearance on behalf of Mr. Facer.9
Notwithstanding the change in Mr. Facer’s counsel only a few days earlier, Plaintiffs’
depositions went forward as scheduled on July 11, 2011. Each of Plaintiffs’ depositions lasted
approximately three and one-half hours, with both of them being completed on July 11, 2011. At
the time Plaintiffs’ depositions occurred, the Mr. Facer’s new counsel had been provided with
only a few days to become familiar with the case. Further, those attorneys had not yet been able
to communicate with Mr. Facer. Mr. Facer’s counsel noted on the record during the depositions
that he had not yet been able to speak to Mr. Facer.
The fact discovery deadline is December 30, 2011,10 and the parties have set aside the
week of December 12, 2011, to take the remaining depositions in this case. Mr. Facer seeks to
take Plaintiffs’ depositions during that week. The EEOC and Plaintiffs object to the taking of
Plaintiffs’ depositions on several grounds. The EEOC and Plaintiffs maintain that Plaintiffs’
depositions have already been taken and that Mr. Facer’s counsel should have been prepared to

8

See docket no. 28.

9

See docket no. 29.

10

See docket no. 25.
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ask questions during those depositions. The EEOC and Plaintiffs have also expressed concern
about inconvenience to Plaintiffs because they will be forced to miss work for the depositions.
The parties have met and conferred concerning the taking of Plaintiffs’ depositions, but have
been unable to reach any agreement on that issue. Accordingly, Mr. Facer filed the motion
currently before the court.
ANALYSIS
In his motion, Mr. Facer argues that he should be allowed to take Plaintiffs’ depositions.
Mr. Facer asserts that his counsel could not reasonably have been expected to be ready to ask
questions at Plaintiffs’ first depositions because they had been unable to meet with Mr. Facer and
had been provided with only a few days to become familiar with the case. Mr. Facer also asserts
that new evidence has been provided in discovery since Plaintiffs’ first depositions, which
warrants reopening Plaintiffs’ depositions. Finally, Mr. Facer contends that he will make every
effort to mitigate any inconvenience to Plaintiffs and that the depositions will be no more than
one to two hours each.
In response, the EEOC and Plaintiffs argue that Mr. Facer has failed to demonstrate good
cause for reopening Plaintiffs’ depositions. The EEOC and Plaintiffs also assert that neither Mr.
Facer’s inability to prepare for Plaintiffs’ original depositions nor the new evidence produced
during discovery justifies reopening Plaintiffs’ depositions.
Rule 30 of the Federal Rules of Civil Procedure governs the taking of depositions in a
civil case. With respect to reopening or retaking a deposition, rule 30(a)(2)(A)(ii) provides that
“[a] party must obtain leave of court, and the court must grant leave to the extent consistent with
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Rule 26(b)(2) [of the Federal Rules of Civil Procedure] . . . if the parties have not stipulated to
the deposition and . . . the deponent has already been deposed in the case.” Fed. R. Civ. P.
30(a)(2)(A)(ii). The Advisory Committee notes to rule 30 provide that “[t]he party seeking a
court order to extend the examination, or otherwise alter the limitations, is expected to show
good cause to justify such an order.” Fed. R. Civ. P. 30 Advisory Committee Notes, 2000
Amendments. In addition, rule 26(b)(2)(C) provides that
the court must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity
to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).
The court concludes that Mr. Facer has demonstrated good cause for reopening Plaintiffs’
depositions. At the same time, the court concludes that the EEOC and Plaintiffs’ arguments are
without merit and that none of the elements listed in rule 26(b)(2)(C) apply here.
First, the court concludes that good cause exists for reopening Plaintiffs’ depositions. Mr.
Facer’s new counsel was given only a few days to become familiar with this case before
Plaintiffs’ original depositions occurred. The court has determined that was an unreasonably
short amount of time to become acquainted with all the details of this case. Furthermore, as Mr.

5

Facer’s counsel noted during Plaintiffs’ depositions, he had not yet even been able to
communicate with Mr. Facer at the time Plaintiffs’ depositions occurred. Under those
circumstances, the court believes that good cause exists to allow Mr. Facer’s counsel to reopen
Plaintiffs’ depositions.
Second, the reopening of Plaintiffs’ depositions is not “unreasonably cumulative or
duplicative” and their testimony cannot “be obtained from some other source that is more
convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). While it is true
that reopening Plaintiffs’ depositions may be somewhat cumulative or duplicative, it is not
unreasonably so. Mr. Facer has not yet been able to ask Plaintiffs any deposition questions,
which the court views as a vital portion of Mr. Facer’s ability to defend himself in this case.
Further, Plaintiffs are the actual parties making allegations against Mr. Facer in this case, and
their testimony cannot be obtained from any other source.
Third, Mr. Facer has not “had ample opportunity to obtain the information by discovery
in the action.” Fed. R. Civ. P. 26(b)(2)(C)(ii). Again, given that Plaintiffs are the parties who
have brought this action, their deposition testimony could be key to Mr. Facer’s defense. Mr.
Facer should be provided with the opportunity to conduct his own depositions, in addition to the
other discovery he has conducted.
Finally, the burden or expense of reopening Plaintiffs’ depositions does not outweigh
their likely benefit, “considering the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the action, and the importance of the discovery
in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii). To the contrary, the court concludes
6

that the benefit of taking the depositions far outweighs their burden and expense. While
reopening the depositions will undoubtedly be inconvenient for Plaintiffs, that is not sufficient to
constitute undue burden or expense. At the risk of being redundant, the court reminds Plaintiffs
that they have brought this action against Defendants, including Mr. Facer. Mr. Facer is not
seeking merely to take the deposition of a fact witness; instead, he is seeking to depose the actual
parties who have levied allegations against him. The court concludes that Plaintiffs’ deposition
testimony is centrally important to the issues in this case.
For these reasons, the court concludes that Plaintiffs’ depositions shall be reopened so
that Mr. Facer may pose his own deposition questions. However, the reopening of Plaintiffs
depositions will be limited in time so that the overall time for each deposition does not exceed
the seven-hour limit prescribed by rule 30. See Fed. R. Civ. P. 30(d)(1). Put another way, the
duration of the reopening of each of Plaintiffs’ depositions shall be limited to the difference
between seven hours and the duration of the original deposition.
Mr. Facer seeks to take Plaintiffs’ depositions during the week of December 12, 2011,
which is quickly approaching. Given the short amount of time between the date of this order and
the proposed dates for Plaintiffs’ depositions, the court recognizes that those proposed dates may
be unrealistic. Accordingly, the court authorizes Mr. Facer to take Plaintiffs depositions on a
mutually convenient date, even if that date extends beyond the December 30, 2011 fact discovery
deadline.

7

In summary, IT IS HEREBY ORDERED that Mr. Facer’s expedited motion for leave to
take Plaintiffs’ depositions11 is GRANTED, as detailed above.
IT IS SO ORDERED.
DATED this 6th day of December, 2011.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

11

See docket no. 45.
8