Ramirez v. Country Mutual Insurance Company

Filing 42

ORDER GRANTING MOTION FOR PROTECTIVE ORDER. Defendants Motion for Protective Order ECF No. 33 is GRANTED. Defendants Motion to Expedite ECF No. 38 is GRANTED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JUAN RAMIREZ,
NO: 2:16-CV-0281-TOR
Plaintiff,

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ORDER GRANTING MOTION FOR
PROTECTIVE ORDER

v.
COUNTRY MUTUAL INSURANCE
COMPANY, an Illinois company,

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Defendant.
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BEFORE THE COURT are Defendant Country Mutual Insurance

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Company’s Motion for Protective Order (ECF No. 33) and corresponding Motion

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to Expedite (ECF No. 38). The motions were submitted for consideration without

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oral argument. The Court has reviewed the file and the records therein, and is fully

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informed.

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Defendant requests the Court enter a Protective Order to change the location

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of depositions to where the witnesses reside. ECF No. 33 at 2. According to

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Defendant:

ORDER GRANTING MOTION FOR PROTECTIVE ORDER ~ 1

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Plaintiff has set the depositions of Country’s employees Christopher
Thielbar and Jim Lefebvre to take place in Wenatchee, Washington on
December 14, 2017. Mr. Thielbar is employed as a Senior Special
Investigator for Country Mutual, he resides in Graham, Washington, and his
primary work location is out of his residence in Graham, Washington. See
Declaration of Chris Thielbar. Mr. Lefebvre is a Senior Claims
Representative for Country Mutual, he resides in West Seattle, and his
primary work location is in Federal Way, Washington. See Declaration of
Jim Lefebvre.
ECF No. 33 at 2.
Plaintiff opposes the Motion for Protective Order. ECF No. 39. Plaintiff

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first argues that state procedural rules should apply. Plaintiff then argues that the

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deponents are speaking agents of Defendant and thus fit within the broad category

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of “officers, directors, or managing agents” making them parties to this suit. ECF

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No. 39 at 2-9. Plaintiff concedes the deposition of a corporate party ordinarily

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should take place at its place of business (Illinois), but then argues, because of

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financial hardship and disparity in financial resources, the Court should order the

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depositions to take place in Chelan County where Defendant conducts business.

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ECF No. 39 at 8-9.

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“Under the Erie doctrine, federal courts sitting in diversity apply state

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substantive law and federal procedural law.” In re Cty. of Orange, 784 F.3d 520,

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523–24 (9th Cir. 2015) (quoting Gasperini v. Ctr. For Humanities, Inc., 518 U.S.

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415, 427 (1996)). Thus, the Federal Rules of Civil Procedure apply here. Rule 45

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sets the geographical limits on the place of compliance for a deposition

ORDER GRANTING MOTION FOR PROTECTIVE ORDER ~ 2

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subpoena—“A subpoena may command a person to attend a . . . deposition only as

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follows: (A) within 100 miles of where the person resides, is employed, or

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regularly transacts business in person; or (B) within the state where the person

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resides, is employed, or regularly transacts business in person, if the person (i) is a

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party or a party’s officer. . . .” Fed. R. Civ. P. 45(c). Rule 45 also provides that

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upon motion, “the court for the district where compliance is required must quash or

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modify a subpoena that . . . requires a person to comply beyond the geographical

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limits specified in Rule 45(c) . . . .” Fed. R. Civ. P. 45(d)(3)(A)(ii).

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The deponents are not parties nor are they officers [directors or managing

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agents] of Country Mutual, they are lower level employees. See Rule 45(c) and

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Advisory Committee Notes, 2013 Amendment. The Rule does not differentiate

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between speaking and non-speaking agents. The 2013 Amendment to Rule 45(c)

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resolved “a split in interpreting Rule 45’s provisions for subpoenaing parties and

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party officers.” Advisory Committee Notes, 2013. While nonparty witnesses

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require the use of a subpoena to compel their attendance, parties, officers, directors

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and managing agents need not involve use of a subpoena.

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As such, these deponents may only be required to attend a deposition within

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100 miles of where they reside, are employed or regularly transact business in

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person. Wenatchee is not within 100 miles of any of these locations, however,

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Tacoma is within 100 miles.

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Pursuant to Rule 29, the parties “may stipulate that a deposition may be

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taken before any person [or] at any time or place....” Fed. R. Civ. P. 29(a).

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ACCORDINGLY, IT IS HEREBY ORDERED:

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1. Defendant’s Motion for Protective Order (ECF No. 33) is GRANTED.

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Plaintiff is hereby ordered to conduct the depositions of Chris Thielbar

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and Jim Lefebvre in Tacoma, Washington, absent further stipulation

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between the parties.

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2. Defendant’s Motion to Expedite (ECF No. 38) is GRANTED.

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The District Court Executive is directed to enter this Order and furnish

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copies to the parties.
DATED November 27, 2017.

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THOMAS O. RICE
Chief United States District Judge

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ORDER GRANTING MOTION FOR PROTECTIVE ORDER ~ 4