Hughes v. Hughes et al

Filing 176

MEMORANDUM AND OPINION AND ORDER denying 150 Defendant's Motion for Protective Order but granting some other relief requested. Signed by Magistrate Judge James E. Seibert on 7/7/11. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KAREN HUGHES and
FRANK HUGHES,
Plaintiffs,
v.

Civ. Action No. 2:09-cv-93

SEARS, ROEBUCK AND CO., and
ICON HEALTH AND FITNESS, INC.,
and JOHN DOE,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S MOTION FOR PROTECTIVE ORDER BUT GRANTING SOME
OTHER RELIEF REQUESTED
This matter comes before the Court on Defendant’s, Sears, Roebuck & Co., Motion for
Entry of Protective Order filed June 24, 2011.1 The Court held an evidentiary hearing and
argument on Defendant’s Motion on June 30, 2011. Plaintiffs, Karen and Frank Hughes,
appeared by Jeffrey D. Van Volkenburg, Esq., by telephone. Defendant, Sears, Roebuck and Co.
(hereinafter “Sears”), appeared by Jeffrey A. Kimble, Esq., by telephone. No testimony was
taken nor was any other evidence adduced.
I. INTRODUCTION
A.

Background
This action was initially filed on June 25, 2009 in the Circuit Court of Barbour County,

West Virginia seeking recovery for injuries suffered by Plaintiff, Karen Hughes, allegedly
resulting from a treadmill malfunction. Defendants timely removed to federal court under 28

1

Dkt. No. 150.
1

U.S.C. § 1441 on July 29, 2009 alleging diversity jurisdiction. Defendant filed its Motion for
Entry of Protective Order on June 24, 2011 requesting the Court to relieve “it of any obligation
to produce for deposition the paralegals stated on the notices of depositions served by [P]laintiffs
on June 22, 2011.” See Def.’s Mem., Pg. 1 (Dkt. 150-1).
B.

The Motion
1.

C.

Defendant’s Motion for Entry of Protective Order.2

Decision
Defendant’s Motion for Entry of Protective Order is DENIED because Defendant’s

paralegals are not the trial or litigation counsel of record and it is unlikely Plaintiff’s questioning
would expose Defendant’s litigation strategy in the pending case.
Sears’s paralegals must appear for depositions on July 16, 2011 at 9:00am in Wheeling
Magistrate Judge Courtroom, United States Courthouse, 4th Floor, 1125 Chapline Street,
Wheeling, West Virginia 26003. Plaintiffs are permitted a total of three (3) depositions lasting
two (2) hours each. The schedule of these depositions is as follows:
Deposition No. 1: Begins at 9:00am until 11:00am
Break from 11:00am until 11:15am
Deposition No. 2: Begins at 11:15am until 1:15pm
Break from 1:15pm until 1:30pm
Deposition No. 3: Begins at 1:30pm until 3:30pm
Plaintiffs’ request for their attorneys’ fees and costs associated with responding to Defendant’s
Motion is DENIED because it is that rarest of all endangered species–a legitimate discovery dispute.
II. FACTS
1.

2

On June 24, 2011, Defendant filed its Motion for Entry of Protective Order and its

Dkt. No. 150.
2

Memorandum in Support of its Motion.3
2.

This Court set an evidentiary hearing and argument on Defendant’s Motion to be
held June 30, 2011.

3.

On June 29, 2011, Plaintiffs filed their Response to Defendant’s Motion for Entry
of Protective Order.4

4.

The evidentiary hearing and argument was held on June 30, 2011 wherein the
Court directed the parties to provide additional briefing on the issue of the
propriety of deposing attorneys and legal staff involved in the present litigation.

5.

On July 1, 2011, Plaintiffs filed a Supplemental Submission requesting
Defendant’s Motion for Entry of Protective Order be denied.5

6.

On July 6, 2011, Defendant filed its Supplemental Submission.6

7.

Plaintiffs filed their Response to Defendant’s Supplemental Memorandum on July
6, 2011.7

III. DEFENDANT’S MOTION FOR ENTRY OF PROTECTIVE ORDER
A.

Contentions of the Parties
In support of its Motion, Defendant Sears requests this Court to enter a protective order

“relieving it of any obligation to produce for deposition the paralegals stated on the notices of

3

Id.

4

Dkt. No. 155.

5

Dkt. No. 167.

6

Dkt. No. 174.

7

Dkt. No. 175.
3

deposition served by [P]laintiffs on June 22, 2011.” See Def.’s Mem., Pg. 1 (Dkt. 150-1). Sears
argues that the burden and expense of the proposed discovery outweighs the likely benefit.
Specifically, Sears states that “much of what the [paralegals] would know would be protected by
attorney-client privilege and/or work product doctrine, so, if the depositions occurred, there
would likely be many objections on the basis of privilege...[t]herefore, any likely benefit would
be minimal.” Id. at 6-7. Sears additionally argues that the burden and expense would be great
due to the inconvenience and expense of requiring these paralegals to travel to West Virginia.
Sears proffers a second argument as to why a protective order should issue. It contends a
protective order is warranted because Plaintiffs have not provided sufficient information to
determine whether the information Plaintiff seeks to uncover in the depositions is: 1) available
from an alternative source, 2) necessary and appropriate, and 3) “steers clear” of privileged
information. Id. at 8. Sears asserts an alternative argument, should the Court order the
depositions to proceed. Sears requests an Order 1) limiting the deposition topics to specific
subject matters, 2) limiting the number of depositions permitted, and 3) requiring the depositions
to be conducted either in Chicago, Illinois or via video conference or telephone to avoid excess
expense and inconvenience. Id. at 9.
In opposition to Sears’s Motion, Plaintiffs assert that they “seek valuable, relevant
information from the requested deponents and there is no valid reason for prohibiting the
depositions of the requested individuals.” See Pl.’s Resp., Pg. 2 (Dkt. 155). Plaintiffs argue no
undue burden or expense is established in permitting these depositions for several reasons.
Plaintiff contends “Sears availed itself of the opportunity to conduct business in the State of
West Virginia” and, essentially, should be available to be deposed in this jurisdiction. Id. at 4.

4

Moreover, Plaintiffs highlight that “there has not been a single representative of Sears that has
been deposed in this litigation” and “it is likely that the requested depositions could be
completed in a single day.” Id. This, Plaintiff argues, eliminates the need for Sears to expend
significant time and resources on these requested depositions. Id.
Plaintiffs also distinguish Defendant’s reliance on Carr v. Double T. Diner by stating that
the “requested deponents are not ‘high ranking corporate officers’ but rather paralegals that
handle claims asserted against Sears similar to the case sub judice.” Id. at 6 (quoting Carr v.
Double T. Diner, 272 F.R.D. 431, 434 (D. Md. 2010)). The current case, Plaintiffs contend, is
also different because Plaintiffs only seek non-privileged and non-protected information.
Plaintiffs argue that they should not be required “to produce a line of questions or depositions
outline in advance of the depositions so that [Defendant] can determine what questions are to be
asked of its employees.” Id. at 7. Plaintiffs also request a award of attorneys’ fees and costs in
responding to Defendant’s Motion.
In Plaintiffs’ Supplemental Submission requesting a denial of Defendant’s Motion for
Entry of Protective Order, Plaintiffs maintain their depositions requests are proper. Plaintiffs
suggests to the Court Asbury v. Linton Loan Servicing, LP, Civil Action No. 3:07-0500, 2009
U.S. Dist. LEXIS 30882 (S.D.W. Va. April 9, 2009) and Shelton v. American Motors Corp., 805
F.2d 1323 (8th Cir. 1987) as support that Plaintiffs’ requested depositions of the paralegals are
acceptable. Plaintiffs distinguish the present case from the two previously-referenced cases
because “Plaintiffs are not seeking to actually depose an attorney at all...[but merely] in-house
paralegals...[that] are primarily used for information gathering....” See Pl.’s Supp., Pg. 6-7 (Dkt.
167). Plaintiffs additionally argue the paralegals’ depositions are required for several reasons: 1)

5

to ascertain whether Sears employees knew or should have known about claims of sudden
acceleration involving Icon treadmills and how wide-spread the issue of sudden acceleration
was; 2) to inquire how a tender of defense and indemnification by Sears to Icon was made and
accepted; and 3) to determine whether Defendant complied with its duties under the Federal
Rules of Civil Procedure and the Court’s Order of December 3, 2011. Id. at 8-9. Plaintiffs lastly
assert that this information is not able to be obtained from any other source and seek an Order
denying Defendant’s Motion for Protective Order.
B.

Discussion
Under the Federal Rules of Civil Procedure, “[u]nless otherwise limited by court order,

the scope of discovery is parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense....” Fed. R. Civ. P. 26(b)(1). Relevant information need
not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id. Such [l]iberal discovery is provided for the sole purpose
of assisting in the preparation and trial, or the settlement, or litigated disputes. Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 34 (1984). “The Rules do not differentiate between information that is
private or intimate and that to which no privacy interests attach...thus, the Rules often allow
extensive intrusion into the affairs of litigants....” Id. at 30.
Although information is not shielded from discovery on the sole basis that the
information is confidential, a party may request the court to enter a protective order pursuant to
Fed. R. Civ. P. 26(c) as a means to protect such confidential information. To obtain a protective
order, the party resisting discovery must establish that the information sought is covered by Fed.

6

R. Civ. P. 26(c) and that it will be harmed by disclosure.”8 In re Wilson, 149 F.3d 249, 252 (4th
Cir. 1998). In determining whether good cause exists to issue a protective order prohibiting the
dissemination of documents or other materials obtained in discovery, the movant must make “a
particular and specific demonstration of fact, as distinguished from stereotyped and conclusory
statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981). See also Aetna Cas. & Sur.
Co. v. George Hyman Const. Co, 155 F.R.D. 113, 115-16 (E.D. Pa. 1994) (initial inquiry is
whether movant has shown disclosure will result in clearly defined and very serious injury).
Fed. R. Civ. P. 26(b)(1) limits the scope of discovery to “any nonprivileged matter that is
relevant to any party’s claim or defense....” Information sought by means of the discovery
process must be relevant to the issues in action or must be useful in uncovering the existence of
information relevant to the issues in the case. In re Cooper Tire & Rubber Co., 568 F.3d 1180,
1189 (10th Cir. 2009). While evidence need not be admissible at trial, “[d]iscovery of matter not
reasonably calculated to lead to discovery of admissible evidence is not within the scope of Rule
26(b)(1).” Oppenheimer Fund v. Sanders, 437 U.S. 340, 352, 98 S. Ct. 2380 (1978). Generally,
Fed. R. Civ. P. 26(b) enables parties to discover any unprivileged evidence or information
relevant to their claim. Fed. R. Civ. P. 26(b)(1).
District courts, however, have discretion to limit the scope of discovery where the
information sought is overly broad or would prove unduly burdensome to produce. Fed. R. Civ.
P. 26(b)(2). The desire to allow broad discovery is not without limits and the court is given wide

8

Fed. R. Civ. P. 26(c) provides in relevant part: “The court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense....”
7

discretion in balancing the needs and rights of both plaintiff and defendant. Surles v. Greyhound
Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). See also Trevino v. Celanese Corp., 701 F.2d
397, 406 (5th Cir. 1983) (finding scope of discovery limited only by relevance and
burdensomeness). Specifically, the Federal Rules of Civil Procedure instruct district courts to
limit discovery where its burden or expense outweighs its likely benefit, taking into account the
needs of the case, the amount in controversy, the parties' resources, the importance of the issues
at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii).
The Federal Rules of Civil Procedures do not explicitly prohibit the deposition of the
opposing party’s attorney. Fed. R. Civ. P. 26-32; Shelton v. American Motors Co., 805 F.2d
1323 (8th Cir. 1987). Federal courts, however, have not looked with favor upon attempts to
depose opposing counsel. Shelton, 805 F.2d at 1327. Deposing an opponent’s attorney is a
drastic measure and is infrequently proper. M & R Amusements Corp. v. Blair, 142 F.R.D. 304,
305 (N.D. Ill. 1992). Though not absolutely immune from being deposed, deposing an opposing
counsel is a negative development in the area of litigation and should be permitted only in
limited circumstances. Shelton v. American Motors Co., 805 F.2d 1323, 1327 (8th Cir. 1987).
Federal courts exercise great care before permitting the deposition of a party’s attorney and said
deposition should be limited to situations where the party seeking to take the deposition has
shown that: “1) no other means exist to obtain the information than to depose opposing
counsel,...2) the information sought is relevant and nonprivileged; and 3) the information is
crucial to the preparation of the case.” Shelton, 805 F.2d at 1327. In general terms, the party
seeking to depose an opposing counsel has to “establish a legitimate basis for requesting the

8

deposition and demonstrate that the deposition will not otherwise prove overly disruptive or
burdensome.” N.F.A. Corp. v. Riverview Narrow Fabrics, 117 F.R.D. 83, 85 (M.D.N.C. 1987).
The question presented by Defendant’s Motion is whether it is appropriate for a party to
depose an opposing party’s paralegals. The Federal Rules of Civil Procedure do not specifically
prohibit this. In fact, Rule 30(a) states that a party may take the deposition of “any person.” Fed.
R. Civ. P. 30(a). The Court notes that the case authority discussed herein relates to the issue of
deposing opposing counsel and not an opposing party’s paralegals, however, neither party
provided case authority as to this issue and the Court finds that a paralegal is comparable to an
attorney for the purposes of this discussion. The seminal case on the issue of deposing opposing
counsel is Shelton v. American Motors Co., 805 F.2d 1323 (8th Cir. 1987). Under this threepronged test, depositions of opposing counsel are limited to situations where the party seeking to
take the deposition has shown that: “1) no other means exist to obtain the information than to
depose opposing counsel,...2) the information sought is relevant and nonprivileged; and 3) the
information is crucial to the preparation of the case.” Shelton, 805 F.2d at 1327.
Prior to applying these factors, the Court must address a threshold matter as to the
applicability of the Shelton test. Namely, is the present situation one where the purposes of
Shelton test are implicated. The Shelton test is applicable in only two instances: 1) when trial or
litigation counsel are being deposed or 2) where the subject matter of the deposition may elicit
litigation strategy. See Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002). In this
case, Sears’s paralegals are not the trial or litigation counsel of record. Moreover, Plaintiffs
argue Defendant’s documentation disclosed during discovery indicate the Sears paralegals are
not actively litigating cases but are primarily used for information gathering. See Pl.’s Supp.

9

Resp., Exh. B (Dkt. 167). Upon review of this documentation, the Court finds Sears’s paralegals
are not engaged in formulating litigation strategy nor would Plaintiffs’ line of questioning likely
expose litigation strategy in the pending case. Therefore, the Shelton test is inapplicable to the
present matter.
Sears’s paralegals must appear for depositions on July 16, 2011 at 9:00am in Wheeling
Magistrate Judge Courtroom, United States Courthouse, 4th Floor, 1125 Chapline Street,
Wheeling, West Virginia 26003. Plaintiffs are permitted a total of three (3) depositions lasting
two (2) hours each. The schedule of these depositions is as follows:
Deposition No. 1: Begins at 9:00am until 11:00am
Break from 11:00am until 11:15am
Deposition No. 2: Begins at 11:15am until 1:15pm
Break from 1:15pm until 1:30pm
Deposition No. 3: Begins at 1:30pm until 3:30pm
Notwithstanding the above discussion, the Court will not permit Plaintiffs to inquire into
the litigation strategy known by Sears’s paralegals. Accordingly, the Court limits the deposition
subjects as follows: Plaintiffs may inquire into 1) knowledge of documents previously produced
in litigation by Defendant; 2) whether Sears’s paralegals knew about claims of sudden
acceleration involving Icon treadmills; 3) whether Sears’s paralegals were aware of any nonprivileged information of how a tender of defense and indemnification by Sears to Icon was
made and accepted; and 4) whether Sears’s paralegals are aware of any non-privileged internal
correspondences for the twenty-nine (29) civil actions disclosed to Plaintiffs during discovery.
The Court will not permit Plaintiffs to elicit any litigation strategy from Sears’s paralegals nor
any information protected by attorney-client privilege or work product doctrine. Additionally,
Plaintiffs will bear the transportation and lodging expenses of Sears’s paralegals. Counsel are,

10

again, advised that July 16, 2011 is the third day of Jamboree in the Hills and that local lodging
is unlikely to be available.
C.

Decision
Defendant’s Motion for Entry of Protective Order is DENIED because Defendant’s

paralegals are not the trial or litigation counsel of record and it is unlikely Plaintiff’s questioning
would expose Defendant’s litigation strategy in the pending case.
Sears’s paralegals must appear for depositions on July 16, 2011 at 9:00am in Wheeling
Magistrate Judge Courtroom, United States Courthouse, 4th Floor, 1125 Chapline Street,
Wheeling, West Virginia 26003. Plaintiffs are permitted a total of three (3) depositions lasting
two (2) hours each. The schedule of these depositions is as follows:
Deposition No. 1: Begins at 9:00am until 11:00am
Break from 11:00am until 11:15am
Deposition No. 2: Begins at 11:15am until 1:15pm
Break from 1:15pm until 1:30pm
Deposition No. 3: Begins at 1:30pm until 3:30pm
Plaintiffs’ request for their attorneys’ fees and costs associated with responding to
Defendant’s Motion is DENIED because it is that rarest of all endangered species–a legitimate
discovery dispute.
Filing of objections does not stay this Order.
Any party may, within fourteen (14) days after being served with a copy of this Order, file
with the Clerk of the Court written objections identifying the portions of the Order to which
objection is made, and the basis for such objection. A copy of such objections should also be
submitted to District Court Judge of Record. Failure to timely file objections to the Order set forth
above will result in waiver of the right to appeal from a judgment of this Court based upon such

11

Order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.

IT IS SO ORDERED.
DATED: July 7, 2011

/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

12