Johnson v. Action Target
Filing
31
MEMORANDUM DECISION granting 28 Motion to Exclude Previously Filed Motion for Protective Order and to Disqualify Counsel from Short Form Discovery Procedure. Plaintiff must file a response, if any, to 23 Defendant's motion for protective order and to disqualify by 5/26/2014. Defendant must file a reply, if any, by 5/29/2014. Signed by Magistrate Judge Dustin B. Pead on 5/20/2014. (jwt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
TARA JOHNSON,
MEMORANDUM DECISION
Plaintiff,
Case No. 2:12-cv-01190-CW-DBP
v.
District Judge Clark Waddoups
ACTION TARGET,
Magistrate Judge Dustin B. Pead
Defendant.
I.
INTRODUCTION
This employment discrimination matter was referred to the Court under 28 U.S.C. §
636(b)(1)(A). (Docket Nos. 16; 28.) The Court now considers Defendant’s motion to exclude
its previously filed motion for protective order and to disqualify Plaintiff’s counsel from the
Short Form Discovery Motion Procedure (“Short Form Procedure”). (Dkt. No. 28.) For the
reasons discussed below, the Court GRANTS the motion.
II.
PROCEDURAL HISTORY
On January 16, 2014, the District Court ordered the parties to follow the Short Form
Procedure. (Dkt. No. 17.) The Short Form Procedure instructs parties on how to resolve
discovery disputes. Relevant here, the Short Form Procedure requires parties who cannot resolve
discovery disputes to file short form discovery motions “which should not exceed 500 words
exclusive of caption and signature block.” (Id. at 1.)
Page 1 of 4
On May 9, 2014, Defendant filed a joint motion for protective order and motion to disqualify
Plaintiff’s counsel. (Dkt. No. 23.) Defendant seeks a protective order to prohibit Plaintiff’s
counsel from representing a third-party at a deposition and to prohibit any future ex parte
communications between the third-party and Plaintiff’s counsel.
Defendant states that the third-party previously worked as Defendant’s Human Resource
Director. (Dkt. No. 28 at 3.) In that role, she obtained privilege information regarding this case
and helped defend against Plaintiff’s complaint. (Id.) Therefore, allowing Plaintiff’s counsel to
represent this third-party at a deposition and in any other capacity creates a risk that the thirdparty will improperly divulge Defendant’s privileged communications to Plaintiff.
Defendant’s motion failed to comply with the Short Form Procedure because it exceeded 500
words. (Dkt. No. 23.) As a result, this Court ordered Defendant to refile the motion in a format
that complied with the Short Form Procedure. (Dkt. No. 26.)
III.
ANALYSIS OF DEFENDANT’S MOTION TO EXCLUDE ITS PREVIOUS
MOTION FROM SHORT FORM PROCEDURE
On May 14, 2014, Defendant filed a motion to exclude from the Short Form Procedure its
previously filed motion for protective order and to disqualify Plaintiff’s counsel. (Dkt. No. 28.)
In short, Defendant wants to exceed the 500 word limit prescribed in the Short Form Procedure.
To support this request, Defendant asserts that the Short Form Procedure is “designed and
intended to deal primarily with discovery requests, such as interrogatories, requests for
production and any responses . . . . ” (Id. at 2-3.) In contrast, the parties’ current dispute “does
not involve discovery requests . . . and does not seek a traditional discovery protective order.”
(Id. at 3.)
Rather, “the dispute concerns [] much larger issue[s] . . . .” (Id.) The dispute concerns
“whether [Plaintiff’s] counsel should be able to have ex parte contact with” the third-party who
Page 2 of 4
“has privileged information and has been involved in the defense of this case . . . .” (Dkt. No. 28
at 3.) The dispute also concerns “whether [Plaintiff’s] counsel should be disqualified because of
her access to that privileged information.” (Id.)
Defendant further emphasizes that “the relief requested – a protective order and
disqualification – are supported by overlapping law.” (Id. at 4.) Therefore, “[i]n the interest of
judicial efficiency, the Court should decide all of the issues briefed as one motion . . . .” (Id.)
Plaintiff opposes Defendant’s motion to exclude its previously filed motion from the Short
Form Procedure. (Dkt. No. 30.) Plaintiff asserts that Defendant only needs 500 words to address
the parties’ dispute because “[t]he facts are actually very simple[.]” (Id. at 2.) Plaintiff believes
that Defendant’s current motion “is simply a delay tactic, given that Defendant[] w[as] given
notice of” the third-party’s “deposition in February and chose to file” its protective order motion
mere days before the third-party’s scheduled deposition. (Id.)
The Court does not condone Defendant’s decision to delay its motion for protective order and
to disqualify counsel until a few days before the third-party’s deposition. However, upon further
review, the Court agrees with Defendant’s substantive arguments for excluding its previously
filed motion from the Short Form Procedure.
The facts underlying Defendant’s motion for protective order overlap with the facts
underlying Defendant’s motion to disqualify Plaintiff’s counsel. These facts involve
complicated issues. For instance, Defendant feels concerned that Plaintiff’s counsel engaged in
ex parte communications with the third-party while the third-party still worked for Defendant.
(Dkt. No. 28 at 4.) Defendant also insists that the third-party signed a severance agreement with
Defendant that prohibited her from communicating any confidential information. (Id. at 3-4.)
Page 3 of 4
For these reasons, the Court will exclude Defendant’s previously filed motion from the Short
Form Procedure. However, the Court emphasizes that this exclusion only applies to Defendant’s
previously filed motion at Docket No. 23. In the future, the Court expects Defendant to comply
with the Short Form Procedure that District Judge Waddoups ordered in this case. Moreover, to
address Plaintiff’s delay concerns, the Court will expedite briefing on Defendant’s previously
filed motion.
IV.
ORDERS
For the reasons set forth above, the Court GRANTS Defendant’s motion to exclude its
previously filed motion for protective order and to disqualify counsel (Dkt. No. 23) from the
Short Form Discovery Motion Procedure. (Dkt. No. 28.)
Plaintiff must file a response, if any, to Defendant’s motion for protective order and to
disqualify (Dkt. No. 23) by May 26, 2014. Defendant must file a reply, if any, by May 29,
2014.
Dated this 20th day of May, 2014.
By the Court:
Dustin B. Pead
United States Magistrate Judge
Page 4 of 4
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?