Houweling's Nurseries Oxnard et al v. Robertson

Filing 41

MEMORANDUM DECISION denying as moot 33 Motion to modify the subpoena; denying 39 Motion to modify the subpoena. Signed by Magistrate Judge Paul M. Warner on 1/26/16 (alt)

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

HOUWELING’S NURSERIES OXNARD,
INC. et al.,
Plaintiffs and Counterclaim Defendants,

MEMORANDUM DECISION

Case No. 2:14-cv-00611-JNP-PMW

v.
District Judge Jill N. Parrish
GEORGE ROBERTSON,
Magistrate Judge Paul M. Warner
Defendant and Counterclaimant

Before the court is a motion by plaintiffs and counterclaim defendants Houweling’s
Nurseries Oxnard, Inc., Houweling Utah Property, Inc., HNL Holdings Ltd., Houweling Utah
Holdings, Inc., and HNL Utah Holding Ltd. (collectively “Plaintiffs”) and non-party Parsons
Behle & Latimer (“PBL”) to modify Defendant George Robertson’s second amended deposition
subpoena to PBL.1
Plaintiffs and PBL previously brought a motion to modify the first amended deposition
subpoena.2 In light of the issuance of a second amended deposition subpoena, Plaintiffs and
PBL’s motion to modify the original deposition subpoena is DENIED as moot. Nevertheless,
the court refers to those earlier papers to supplement the short-form, expedited briefing on the
current motion.

1

Docket no. 39.

2

Docket no. 33.

Defendant previously worked as a consultant for Plaintiffs in connection with a
hydroponic nursery project in Mona, Utah (the “Project”). 3 PBL is a law firm. Plaintiffs
engaged transactional attorneys at PBL to assist with different aspects of the Project.4 Defendant
regularly communicated with PBL attorneys in connection with the Project, and PBL attorneys
appears to have firsthand knowledge about the nature and quality of Defendant’s work on the
Project.5 PBL is Plaintiffs’ trial counsel in the case.
Around July 4, 2014, Plaintiffs terminated Defendant’s consulting agreement.

6

Defendant alleges that he has an ownership interest in the Project and was not paid in full for his
consulting services. Plaintiffs deny these allegations.
In connection with the current litigation, Defendant issued a subpoena to PBL. PBL
agreed to appear subject to a limited subject matter waiver. After moving to modify the first
amended deposition subpoena, PBL now moves the court to modify the second amended
deposition subpoena.7 Plaintiffs and PBL claim that deposition topics numbers 1, 3, and 5 may
invade attorney-client privilege and/or work product protected information, and that PBL does
not have a witness with knowledge about topic number 4.8

3

Docket no. 33 at 3.

4

Id.

5

Docket no. 33.

6

Docket no. 33 at 3.

7

Docket no. 39-1.

8

Docket no. 33.

2

Plaintiffs’ and PBL’s motion to modify the subpoena is DENIED. Privilege issues
generally must be handled on a question-by-question basis.

Particularly under the

circumstances—namely where Plaintiffs’ transactional and trial counsel are witnesses—the court
will not preemptively strike or limit the deposition topics.

As with any other deposition,

Plaintiffs and PBL retain the ability to object during the course of the deposition to questions that
they reasonably believe invade privilege.
With regard to topic number 4, there is no need for the court to modify or strike the topic
based on PBL’s representation that it lacks information on that topic. As with any other Rule
30(b)(6) deposition, PBL’s designated deponent or deponents “must testify about information
known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). PBL needs not
testify on a topic about which PBL cannot testify, but Defendant is still entitled to inquire into
the topic.
IT IS SO ORDERED.
DATED this 26th day of January, 2016.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

3