Spencer v. Harley Davidson Inc et al

Filing 151

MEMORANDUM DECISION AND ORDER-granting 140 Motion to Expedite; granting 140 Motion for Short Term Discovery; Motions terminated: 140 MOTION to Expedite MOTION for Short Form Discovery re: Leave to Reopen Plaintiff's Deposition filed by BWI North American. The court authorizes BWI to take Plaintiff's deposition on a date that is mutually convenient for the parties. Signed by Magistrate Judge Paul M. Warner on 5/4/20. (jrj)

Case 2:16-cv-00427-DBB-PMW Document 151 Filed 05/04/20 Page 1 of 4

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

KEVIN SPENCER,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:16-cv-00427-DBB-PMW

HARLEY DAVIDSON, INC.; et al.,
Defendants.

District Judge David Barlow
Chief Magistrate Judge Paul M. Warner

This case was referred to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). 1 Before the court is Defendant BWI North America, Inc.’s (“BWI”) Short Form
Discovery Motion for Leave to Reopen Plaintiff’s Deposition. 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 April 25, 2016, Plaintiff Kevin Spencer (“Plaintiff”) initiated this case against HarleyDavidson, Inc. and Harley-Davidson Motor Company, Inc. (collectively, “Harley-Davidson”) for

1
2

See ECF nos. 57, 131, 132, 144.
See ECF no. 140.

Case 2:16-cv-00427-DBB-PMW Document 151 Filed 05/04/20 Page 2 of 4

various product liability violations. Harley-Davidson deposed Plaintiff on September 27, 2016.
Seven months later, on April 26, 2017, Plaintiff filed an amended complaint and added BWI as a
defendant. The claims brought against BWI, unlike the claims against Harley-Davidson, focus on
the design and manufacturing of the ABS unit.
In the instant motion, BWI seeks leave to depose Plaintiff a second time because BWI
was not a party to the case when the initial deposition of Plaintiff occurred. Plaintiff does not
oppose a second deposition, but requests the scope of the deposition be limited to areas not
already explored at the Harley-Davidson deposition and that the deposition be limited to no more
than 3 hours and 54 minutes (i.e., seven hours less the time used by Harley-Davidson).
DISCUSSION
The motion before the court relates to discovery. “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).
Rule 30 of the Federal Rules of Civil Procedure provides that a party must obtain leave of
the court to take a deposition “if [the] deponent has already been deposed in the case.” Fed. R.
Civ. P. 30(a)(2)(A)(ii). “[T]he court must grant leave to the extent consistent with Rule 26(b)(1)
and (2) . . . .” Fed. R. Civ. P. 30(a)(2). Rule 26 requires the court to limit discovery if:
(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 proposed discovery is outside the scope
permitted by Rule 26(b)(1).
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Fed. R. Civ. P. 26(b)(2)(c). “Absent a showing of need or good cause, ‘[c]ourts generally
disfavor repeat depositions.’” Luan v. Advanced Title Ins. Agency, L.C., No. 2:13-CV-00983,
2015 WL 4773075, at *2 (D. Utah Aug. 12, 2015) (quoting Dixon v. Certainteed Corp., 164
F.R.D. 685, 690 (D. Kan. 1996) (quotations omitted). Courts must “be careful not to deprive a
party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare
the case.” Id. (quotations and citation omitted); see also Hickman v. Taylor, 329 U.S. 495, 507
(1947) (“[T]he deposition-discovery rules are to be accorded a broad and liberal treatment.”).
Good cause exists to grant BWI leave to depose Plaintiff. BWI was not a party to the case
at the time the first deposition took place, and therefore was not afforded the opportunity to
question Plaintiff about the claims brought against it. In the court’s view, this is a vital part of
BWI’s ability to defend itself in this case. Some areas of inquiry may be cumulative or
duplicative of Harley-Davidson’s deposition; however, the court does not find the amount of
overlap to be unreasonable. Additionally, the court determines that the requested deposition is
within the scope of discovery permitted by Rule 26(b)(1).
BWI did not have an opportunity to depose Plaintiff during earlier proceedings, and
therefore any reduction of time is unwarranted. The length of the deposition should be in
accordance with Rule 30(d)(1) and the scheduling order on file with the court.
ORDER
Based on the foregoing, Defendant BWI’s Short Form Discovery Motion for Leave to

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Reopen Plaintiff’s Deposition 3 is GRANTED. The court authorizes BWI to take Plaintiff’s
deposition on a date that is mutually convenient for the parties.
IT IS SO ORDERED.
DATED this 4th day of May, 2020.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

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See id.

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