Pingree v. University of Utah et al

Filing 93

MEMORANDUM DECISION AND ORDER Overruling 67 Plaintiff's Objection to 63 Magistrate Judge Romero's Order. Signed by Judge Jill N. Parrish on 6/4/24. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RITA FLORIAN PINGREE,
Plaintiff,
v.
UNIVERSITY OF UTAH and CAROLINE
MILNE, in her individual and official
capacities,
Defendants.

MEMORANDUM DECISION AND
ORDER OVERRULING PLAINTIFF’S
OBJECTIONS TO MAGISTRATE
JUDGE’S ORDER COMPELLING
30(b)(6) DEPOSITION
Case No. 2:20-CV-00724-JNP-CMR
District Judge Jill N. Parrish
Magistrate Judge Cecilia M. Romero

On September 26, 2023, Plaintiff Rita Florian Pingree (“Ms. Pingree”) filed a motion to
compel Defendant University of Utah (the “University”) to provide testimony in response to a
Rule 30(b)(6) notice of deposition. ECF No. 53. Magistrate Judge Romero granted Ms. Pingree’s
motion in part but ordered that the temporal scope of the deposition would be limited to 2014 and
thereafter and that Topics 8 and 9 would be excluded. ECF No. 63. Ms. Pingree filed a timely
objection to the Magistrate’s Order under Federal Rule of Civil Procedure 72(a), insisting that the
Magistrate should have granted Ms. Pingree’s motion in its entirety. ECF No. 67. Ms. Pingree’s
objection requires this court to determine whether the Magistrate’s Order granting Ms. Pingree’s
motion to compel in part was clearly erroneous or contrary to law. Because the court finds no such
error in the Magistrate’s Order, Ms. Pingree’s objection (ECF No. 67) is OVERRULED.
BACKGROUND
In January 2022, Ms. Pingree served her first Rule 30(b)(6) deposition notice on the
University. Ms. Pingree withdrew her notice the following month. In April 2023, Ms. Pingree
served a second Rule 30(b)(6) notice on the University. Ms. Pingree’s second Rule 30(b)(6) notice
asked the University to provide testimony on five topics, ranging in time from 2012 through 2019.

ECF No. 53-4. The University objected to Ms. Pingree’s second Rule 30(b)(6) notice. See ECF
No. 53-1. Ms. Pingree then served a third 30(b)(6) deposition notice on July 19, 2023. Id.
Ms. Pingree’s July Rule 30(b)(6) notice added new topics to the scope of the University’s
deposition, including Topics 8 and 9, which relate to the University’s retention procedures for
email accounts set up for the use of students and residents:
8. Defendants’ email account retention policies, process, and procedures; and
process for retaining or destroying student and resident email accounts,
including how and where student emails are housed, during and after their
tenure as students and all individuals or departments with access to emails or
authority to destroy them.
9. Individuals with access to Dr. Pingree’s emails and the process for and authority
to access or delete her email account.
ECF No. 53-1, at 3. The University objected to Ms. Pingree’s inclusion of Topics 8 and 9. See
ECF No. 53-2 (referring to topics 8 and 9 as irrelevant, not proportional, and “improper discovery
about discovery”). Ms. Pingree argued that the inclusion of Topics 8 and 9 in the Rule 30(b)(6)
deposition was necessary because she discovered that a number of emails stored in her University
email account had disappeared. As a result of the emails’ alleged disappearance, Ms. Pingree
concluded that she was entitled to “understand what the University’s policies and practices are
regarding alumni email accounts” and investigate whether “there was any impropriety relating to
her account.” ECF No. 53-3, at 2.
Ms. Pingree subsequently filed a motion to compel the University to provide testimony in
response to her July 30(b)(6) deposition notice. ECF No. 53. In its opposition memorandum, the
University argued that Topics 8 and 9 should be excluded on the basis that Ms. Pingree’s repeated
Rule 30(b)(6) notices had violated DUCivR30-2. ECF No. 57, at 5. Topics 8 and 9, the University
argued, were not listed in Ms. Pingree’s prior Rule 30(b)(6) notices, and because DUCivR30-2
does not permit the service of more than a single Rule 30(b)(6) notice on any particular party, the
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court should not allow Ms. Pingree to add those topics in her third notice. Id. Ms. Pingree
subsequently argued that she did not violate DUcivR30-2 because the relevance of Topics 8 and 9
arose after she sent her second Rule 30(b)(6) notice. ECF No. 60, at 4.
In November 2023, the Magistrate Judge held oral argument on Ms. Pingree’s motion to
compel. See ECF Nos. 62, 63. The Magistrate then issued a ruling from the bench in which she
granted Ms. Pingree’s motion to compel in part. ECF No. 63. The Magistrate concluded that Ms.
Pingree’s repeated Rule 30(b)(6) notices were not cumulative in violation of DUCivR 30-2, but
were instead amended versions of a single notice, despite Ms. Pingree’s failure to caption those
filings as such, because no deposition had yet occurred when Ms. Pingree served her third Rule
30(b)(6) notice in July 2023. Id. The Magistrate also granted Ms. Pingree’s motion
notwithstanding the fact that the deadline for discovery had passed. Id. Despite Ms. Pingree’s
failure to file a motion to reopen discovery, the Magistrate liberally construed Ms. Pingree’s other
filings, which addressed the standard applicable to a motion to reopen, and ordered that discovery
be reopened for the limited purpose of permitting Ms. Pingree to take a Rule 30(b)(6) deposition
of the University. Id. In ordering that discovery be reopened, the Magistrate granted Ms. Pingree’s
motion to compel the University to provide testimony in response to her Rule 30(b)(6) deposition.
Id. The Magistrate’s Order, however, specified that the 30(b)(6) deposition would not include
Topic 8 or 9 or any information prior to 2014. Id. Ms. Pingree objected to those portions of the
Magistrate’s Order. ECF No. 67; see Fed. R. Civ. P. 72(a).
LEGAL STANDARD
When a party objects to a magistrate judge's nondispositive ruling, district courts employ
a “clearly erroneous or . . . contrary to law” standard of review. Fed. R. Civ. P. 72(a). The “clearly
erroneous” standard applies to a magistrate judge’s factual findings. See, e.g., Vivint, Inc. v.

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Alarm.com, Inc., No. 2:15-CV-00392-CW, 2020 U.S. Dist. LEXIS 141702, at *15 (D. Utah Aug.
6, 2020); see also Sprint Communs. Co. L.P. v. Vonage Holdings Corp., 500 F. Supp. 2d 1290,
1346 (D. Kan. 2007) (citing 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069,
at 355 (2d ed. 1997) (collecting cases)). Under this deferential standard, the court will affirm the
magistrate judge’s order unless the court, exercising independent judgment, “is left with the
definite and firm conviction that a mistake has been committed.” United States v. United States
Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); accord Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988).
The “contrary to law” standard, on the other hand, “permits ‘plenary review as to matters
of law.’” Sprint Communs. Co. L.P., 500 F. Supp. 2d at 1346 (quoting 12 Wright et al., supra, §
3069, at 355); see also Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992). A magistrate
judge’s order is contrary to law if it “fails to apply or misapplies relevant statutes, case law or rules
of procedure.” Hawkins v. Ghiz, No. 2:18-cv-00466-DBB-JCB, 2021 U.S. Dist. LEXIS 19474, at
*3 (D. Utah Jan. 29, 2021) (citation omitted); Wyo. v. United States Dep’t of Ag., 239 F. Supp. 2d
1219, 1236 (D. Wyo. 2002) (citing 12 Wright et al., supra, § 3069, at 350), vacated on other
grounds by Wyo. v. United States Dep’t of Ag., 414 F.3d 1207 (10th Cir. 2005); Weiss v. La Suisse,
Societe d’Assurances Sur La Vie, 161 F. Supp. 2d 305, 320–21 (S.D.N.Y. 2001) (quoting
Thompson v. Keane, 1996 U.S. Dist. LEXIS 6022, at *2 (S.D.N.Y. May 6, 1996)).
“In sum, it is extremely difficult to justify alteration of the magistrate judge’s nondispoitive
actions by the district judge.” See Raytheon Co. v. Cray, Inc., 2017 U.S. Dist. LEXIS 30424, at *5
(D. Utah Mar. 2, 2017) (citation omitted); see also 12 Wright et al., supra, § 3069, at 350–51.

ANALYSIS

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I.

INFORMATION DATING BACK TO 2012

The first portion of the Magistrate’s Order to which Ms. Pingree objects is the Magistrate’s
decision to limit the temporal scope of the 30(b)(6) deposition to 2014 and thereafter. Ms. Pingree
believes that she should be allowed to seek testimony regarding events dating back to 2012. While
Ms. Pingree argues against the University’s position that discovery should be limited by the statute
of limitations applicable to her claims, she has not shown the Magistrate’s Order on the 30(b)(6)
deposition’s temporal scope to be clearly erroneous or contrary to law. See ECF No. 91, at 7.
Instead, her objection merely cites cases stating that courts “typically extend the scope of discovery
to a reasonable number of years prior to and following the alleged discrimination” and explains
why information dating back to 2012 is “relevant and important.” ECF No. 67, at 6–10 (quoting
Clark v. Vivint Solar, Inc., No. 2:17-cv-00144-JNP-PMW, at p. 5 (D. Utah Mar. 15, 2019)
(emphasis added)).
Information dating back to 2012 may well be relevant, or even important, to Ms. Pingree.
But her objection cannot be sustained. Ms. Pingree asks the court to “overrule the Magistrate
Judge’s Order and expand the relevant time period back to 2012” without reference to the standard
applicable to her objection and without assigning any particular error to the Magistrate’s Order.
ECF No. 91, at 7. To persuade this court to alter the Magistrate’s Order, Ms. Pingree bears the
burden to demonstrate that the Order was clearly erroneous or contrary to law. Fed. R. Civ. P.
72(a) (“The district judge in the case must . . . modify or set aside any part of the order that is
clearly erroneous or is contrary to law.”); 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may
reconsider any pretrial matter under this subparagraph (A) where it has been shown that the
magistrate’s order is clearly erroneous or contrary to law.”). By failing to articulate any basis upon
which the court could reach that conclusion, Ms. Pingree failed to meet her burden. Fed. R. Civ.

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P. 72(a); see also Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3–4 (1st Cir. 1999)
(interpreting Fed. R. Civ. P. 72(a) as requiring an objecting party to “apprise the district court of
all the objector’s claims of error” in connection with that party’s objection). As a result, Ms.
Pingree’s objection with respect to the Magistrate’s Order limiting the temporal scope of the
30(b)(6) deposition to 2014 and thereafter is overruled.
II.

DEPOSITION TOPICS 8 AND 9

In granting Ms. Pingree’s motion to compel, the Magistrate ordered that Topics 8 and 9
would be excluded from the scope of the deposition. See ECF No. 63. Neither party disputes that
the Magistrate properly cited Federal Rule of Civil Procedure 26(b)(1) as the standard for
determining the discoverability of certain topics. Ms. Pingree objects, however, to the Magistrate’s
conclusion that under that rule, Topics 8 and 9 are not within the proper scope of a Rule 30(b)(6)
deposition because those topics are not relevant. See ECF No. 67, at 1–2 (“The Magistrate Judge
ruled these topics as irrelevant to the current issues of the lawsuit, a determination with which
Plaintiff respectfully disagrees.”).
Ms. Pingree does not specify whether she believes the Magistrate’s Order excluding Topics
8 and 9 to be clearly erroneous, contrary to law, or both (although she quotes both standards in her
objection). Because Ms. Pingree’s objection contests the Magistrate’s decision that Topics 8 and
9 were not discoverable under Rule 26(b)(1), however, the court understands Ms. Pingree to be
arguing that the Magistrate Judge’s Order was contrary to law. See Applied Predictive Techs., Inc.
v. MarketDial, Inc., 2022 U.S. Dist. LEXIS 136706, at *2–3 (D. Utah July 29, 2022) (quoting
Hawkins, 2021 U.S. Dist. LEXIS 19484, at *3) (applying the “contrary to law” standard to issues
where the “magistrate judge’s order . . . ‘fails to apply or misapplies . . . rules of procedure[.]’”).
Upon review, the court concludes that the Magistrate’s decision to exclude Topics 8 and 9 from

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the scope of the 30(b)(6) deposition was not contrary to law.
Ms. Pingree has articulated several reasons why she believes Topics 8 and 9 are relevant,
including her belief that “the University of Utah’s email account retention policies and procedures
(topic 8), as well as information regarding access to Dr. Pingree’s emails (topic 9), is crucial in
determining the Defendant's compliance with its duty to preserve relevant ESI” and “assessing
potential spoliation of evidence.” ECF No. 67, at 5; see also ECF No. 91. The University argues
that Rule 37(e) cannot provide the basis for Topics 8 and 9 to be deemed relevant because Ms.
Pingree has not plausibly alleged that she lost documents or was prejudiced as a result of any loss
of documents, each of which is necessary to demonstrate spoliation of evidence. See ECF No. 92,
at 10–12. Notwithstanding the parties’ arguments, the court finds that it need not resolve the
relevance question, because several additional factors applicable under Rule 26(b)(1) support the
Magistrate’s Order excluding Topics 8 and 9 from the 30(b)(6) deposition’s scope.
Discovery must be not only relevant, but also “proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Topics 8 and 9 are not proportional to the
needs of the case for three reasons.
First, the parties’ relative access to relevant information weighs against finding Topics 8
and 9 to be proportional. It is undisputed that Ms. Pingree possessed (and still possesses) access to
her University email account. In her initial disclosures, Ms. Pingree produced several emails from
her University email account, which she had forwarded to her personal Hotmail email account.
The University’s records show that Ms. Pingree—and nobody else—accessed her University email

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account during relevant time periods. For these reasons, the court finds that Ms. Pingree had at
least equal access to the records in her University email account. Second, Ms. Pingree has not
shown that Topics 8 and 9 are important in resolving the issues in this case. When Ms. Pingree
reported that emails had disappeared from her University email account, the University offered to
search for potentially relevant emails through alternative means, including by searching the email
accounts of the users with whom Ms. Pingree had exchanged messages that had allegedly
disappeared. Ms. Pingree did not respond to that offer. Moreover, Ms. Pingree has not articulated
what information is missing from her University email account that cannot be accessed elsewhere.
The court has not been apprised of how many relevant emails (if any) were in Ms. Pingree’s
University account that were not among those that Ms. Pingree forwarded to her personal Hotmail
email account. Without any showing that Ms. Pingree has lost information that she needs to assert
a claim or defense, the court does not find Topics 8 and 9 to be important in resolving the issues
in the case. Third, because Ms. Pingree has not articulated what information she lost when emails
allegedly disappeared from her University email account, the benefit of testimony on Topics 8 and
9 appears to be minimal, such that the burden and expense of expanding the scope of the 30(b)(6)
deposition may not exceed the benefit.
The foregoing factors provide a sufficient basis for the court to conclude that Topics 8 and
9 are not proportional to the needs of the case, and thus excludable even assuming that the topics
are relevant. Because Topics 8 and 9 were therefore properly excluded under Rule 26(b)(1), the
court cannot conclude that the Magistrate’s Order denying Ms. Pingree’s motion to compel the
University to provide testimony on those topics was contrary to law. The court therefore overrules
Ms. Pingree’s objection with regard to Topics 8 and 9.

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CONCLUSION AND ORDER
For the reasons stated herein, Plaintiff’s Objection (ECF No. 67) to Magistrate Judge
Romero’s Order (ECF No. 63) is OVERRULED.
Signed June 4, 2024
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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