HSBC Bank USA, National Association v. Resh et al
Filing
294
MEMORANDUM OPINION AND ORDER denying 284 MOTION by Colliers International Valuation & Advisory Services, LLC, Philip Steffen for Protective Order Quashing Notices of Depositions; directing that within the next 14 days the Third-Party Defendants make themselves available for deposition on a date and time, and at a location, convenient to the parties. Signed by Magistrate Judge Cheryl A. Eifert on 2/10/2014. (cc: attys; any unrepresented party) (mkw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
HSBC BANK USA, NATIONAL ASSOCIATION,
As Indenture Trustee under that certain Indenture
dated June 1, 2007, for the benefit of the Indenture
Trustee and holders of the Business Loan Express
Business Loan-Backed Notes, Series 2007-A, as
their interests may appear,
Plaintiff,
v.
Case No.: 3:12-cv-00668
RON RESH and VALARIE REYNOLDS-RESH,
Individually and as Trustees of the Resh Living
Trust and the Valarie Reynolds-Resh Living Trust,
Defendants; Counter Plaintiffs;
and Third-Party Plaintiffs,
v.
REALTY CONCEPTS, LTD.; ANDREW BROSNAC;
COLLIERS INTERNATIONAL VALUATION &
ADVISORY SERVICES, LLC; PHILIP STEFFEN;
LAWYER’S TITLE INSURANCE CORPORATION;
and HELEN SULLIVAN,
Third-Party Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the Motion for Protective Order Quashing Notices of
Deposition of Third-Party Defendants Colliers International Valuation & Advisory
Services, LLC and Philip Steffen (“Third-Party Defendants”). (ECF No. 284). ThirdParty Plaintiffs have filed a response in opposition to the motion, (ECF No. 289), and
Third-Party Defendants have filed a reply memorandum. (ECF No. 292). The
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undersigned conducted a hearing on the motion on February 10, 2014. For the reasons
set forth below and for those stated during the telephonic hearing, the court DENIES
the motion.
Rule 26(b)(1) permits a party to obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense. Discovery that seeks relevant
information may nonetheless be restricted or prohibited if necessary to protect a person
or party from annoyance, embarrassment, oppression, or undue burden or expense.
Fed. R. Civ. P. 26(c). Likewise, on motion or sua sponte, the court may limit the
frequency and extent of discovery when the “burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the action,
and the importance of the discovery in resolving the issues.” Fed. R. Civ. P.
26(b)(2)(C)(iii). The party opposing discovery has the obligation to submit evidence
supporting its claims that the requests are unduly burdensome. To prevail on the
grounds of burdensomeness, the objecting party must do more to carry its burden than
make conclusory and unsubstantiated arguments. Convertino v. United States
Department of Justice, 565 F. Supp.2d 10, 14 (D.D.C. 2008) (the court will only
consider an unduly burdensome objection when the objecting party demonstrates how
discovery is burdensome by submitting affidavits or other evidence revealing the nature
of the burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D.Kan. 2005)
(the party opposing discovery on the ground of burdensomeness must submit detailed
facts regarding the anticipated time and expense involved in responding to the discovery
which justifies the objection); Bank of Mongolia v. M & P Global Financial Services,
Inc., 258 F.R.D. 514, 519 (S.D. Fla.2009) (“A party objecting must explain the specific
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and particular way in which a request is vague, overly broad, or unduly burdensome. In
addition, claims of undue burden should be supported by a statement (generally an
affidavit) with specific information demonstrating how the request is overly
burdensome”).
Third-Party Defendants ask the court to delay the taking of their depositions until
the presiding District Judge has ruled on their motion for summary judgment. They
argue that if the motion is granted, all claims against them will be dismissed. If the
claims are dismissed, then their depositions will take considerably less time, will be of
limited scope and more focused, and they will have the advantage of protections
afforded to non-party witnesses. Moreover, as non-parties that reside in Arizona and
Washington, they will not need to have West Virginia counsel present at the depositions,
which will significantly reduce their costs.
On the other hand, Third-Party Plaintiffs argue that even if the motion for
summary judgment is granted, they will still need to take the depositions of the ThirdParty Defendants. According to Third-Party Plaintiffs, they have fast-approaching
expert witness reports and numerous depositions to complete before the close of
discovery; accordingly, a delay of the depositions will interfere with their ability to meet
their deadlines and complete discovery.
Having considered the arguments, the undersigned finds no basis upon which to
delay the depositions. While it may be true that Third-Party Defendants will incur some
additional costs if the depositions proceed before a ruling on the dispositive motion,
discovery has not been stayed. Moreover, Third-Party Defendants have not quantified
the additional costs for the court; consequently, there is no record upon which the
undersigned can conclude that the additional costs are unduly burdensome. The
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depositions were scheduled reasonably in advance and were set in Arizona and
Washington for the convenience of the deponents. The deponents will require
preparation by counsel regardless of their roles in the litigation. For these reasons, the
undersigned cannot conclude that the additional expense, if any, outweighs the
prejudice to Third-Party Plaintiffs if the depositions are delayed. Third-Party Plaintiffs
represent that they intend to depose the Third-Party Defendants regardless of the
outcome of the summary judgment motion, and need to complete the depositions prior
to the March deadline for serving expert witness reports. In particular, they argue that
Mr. Steffen was an appraiser of property in dispute, and his testimony may play a
significant role in the expert opinions. Finally, as Third-Party Plaintiffs point out, the
summary judgment motion may not be resolved until after discovery is completed. As a
result, Third-Party Defendants’ argument that a delay of the depositions will result in a
cost-savings is, at this time, merely speculation.
Therefore, the court ORDERS that within the next fourteen (14) days, the
Third-Party Defendants make themselves available for deposition on a date and time,
and at a location, convenient to the parties.
The Clerk is instructed to provide a copy of this Order to counsel of record and
any unrepresented party.
ENTERED: February 10, 2014.
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