Robinson v. Quicken Loans, Inc.

Filing 199

MEMORANDUM OPINION AND ORDER For the reasons that follow, the Court Grants Ms. Bishop's 164 motion to quash the subpoena, but Denies her request for a protective order limiting any future deposition to one taken by means of written questions; instead, the Court Grants Quicken leave to take the deposition of Ms. Bishop by oral examination, upon amended subpoena and subject to the limitations set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 8/22/2013. (cc: attys; any unrepresented party) (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JANET R. ROBINSON,
Plaintiff,
v.

Case No.: 3:12-cv-00981

QUICKEN LOANS, INC.,
WELLS FARGO BANK, N.A., and
JOHN DOE HOLDER,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Motion for Protective Order and to Quash
Subpoena filed by non-party witness, Juanita Bishop. (ECF No. 164). In this motion, Ms.
Bishop seeks to preclude or limit the taking of her deposition by Defendant, Quicken
Loans, Inc. (“Quicken”). Quicken has filed a response in opposition to the motion, and
the time allotted for the filing of a reply has now expired. The positions of the parties are
clear; thus, the undersigned does not find oral argument necessary. For the reasons that
follow, the Court GRANTS Ms. Bishop’s motion to quash the subpoena, but DENIES
her request for a protective order limiting any future deposition to one taken by means
of written questions. Instead, the Court GRANTS Quicken leave to take the deposition
of Ms. Bishop by oral examination, upon service of an amended subpoena and subject to
the limitations set forth below.1

1 The deadline for taking depositions in this case expired on August 16, 2013. However, the undersigned
has confirmed with the presiding District Judge that the deposition of Ms. Bishop may still be taken
without need for the parties to formally seek an extension of the discovery deadline.

1

This case involves claims by Plaintiff that the Defendants engaged in a joint
venture to fraudulently induce her to procure an unconscionable, high-interest home
equity loan. In her Initial Disclosures, Plaintiff identified Ms. Juanita Bishop as a
potential “pattern and practice” witness based upon Ms. Bishop’s own experiences with
Quicken. According to Plaintiff, Ms. Bishop filed suit against Quicken in 2009, alleging
its involvement in a predatory lending scheme similar to the one claimed by Plaintiff.
Ms. Bishop’s case was ultimately resolved and has since been dismissed.
On July 3, 2013, Quicken requested issuance of a subpoena commanding Ms.
Bishop to appear for a deposition and provide testimony in this action. Thereafter, Ms.
Bishop filed the instant motion, raising several grounds for quashing the subpoena and
for limiting her deposition to one taken by written questions. First, Ms. Bishop points
out procedural defects related to the form and content of the subpoena. In particular,
she asserts that the subpoena misstates the court in which the action is pending and fails
to identify the means by which the testimony is to be recorded as required by
Fed.R.Civ.P. 45(a)(1)(A) and (B). Second, Ms. Bishop argues that she was deposed for
several hours in her own case against Quicken; therefore, she has already provided
Quicken with most of the information it seeks to obtain from her by a deposition in this
action. Ms. Bishop indicates that she has no personal knowledge of Plaintiff’s
arrangements with Quicken and thus cannot provide any information other than what
was collected through her prior testimony. Finally, Ms. Bishop states that she is elderly,
and having to sit for a deposition would be difficult for her. She contends that Quicken’s
motive in deposing her is improper as Quicken is not attempting to obtain relevant
information, but instead simply seeks to oppress Plaintiff and her witnesses.

2

In response, Quicken agrees that some harmless errors were made in the form
and content of the subpoena, but inasmuch as Quicken intends to reissue the subpoena
and correct the defects, Ms. Bishop’s argument is moot. Quicken also concedes that Ms.
Bishop provided testimony in her own lawsuit against Quicken, but emphasizes that
Plaintiff identified Ms. Bishop as a witness. Consequently, Quicken should be allowed to
question Ms. Bishop regarding her anticipated testimony in this case. Quicken argues
that Ms. Bishop’s deposition in her own action was taken nearly three years ago, prior to
the filing of the instant action; therefore, Quicken could not possibly have questioned
Ms. Bishop about all of the issues relevant here. For example, Ms. Bishop has never been
asked about her relationship to Plaintiff, her motivation for agreeing to testify in this
action, and the circumstances surrounding her disclosure as a “pattern and practice”
witness. Quicken contends that Ms. Bishop has not met the heavy burden necessary to
justify the issuance of an order that entirely prohibits the taking of her deposition, or
severely restricts Quicken in the manner in which it conducts discovery.
Motion to Quash
Both Ms. Bishop and Quicken agree that the subpoena contains some defects in
form and content. For that reason, the Court GRANTS Ms. Bishop’s motion to quash
the subpoena. Quicken will need to request and serve another subpoena when a time
and date have been scheduled for Ms. Bishop’s deposition.
Motion for Protective Order
Fed.Rule.Civ.P. 26(c) allows any person from whom discovery is sought to move
the court for a protective order precluding or limiting the proposed discovery. If good
cause is shown, the court may issue an order designed to protect the person from
annoyance, embarrassment, oppression, undue burden or expense. The person or party
3

moving for the protective order bears the burden of demonstrating good cause, Minter
v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 124 (D.Md.2009), and in doing so, “may not
rely upon ‘stereotyped and conclusory statements,’ but must present a ‘particular and
specific demonstration of fact,’ as to why a protective order should issue. Baron Fin.
Corp. v. Natanzon, 240 F.R.D. 200, 202 (D.Md.2006) (quoting 8A Charles Alan Wright
et al., Fed. Prac. & Proc. Civ. § 2035 (2d ed.1994)). Protective orders that entirely
prohibit the taking of a deposition are disfavored and “should be rarely granted absent
extraordinary circumstances.” Static Control Components, Inc. v. Darkprint Imaging,
201 F.R.D. 431, 434 (M.D.N.C. 2001). Nevertheless, “if an oral deposition will pose a
threat to a witness' health, the court will exercise its discretion in favor of a protective
order.” Armstrong v. MGC Mortg., Inc., Civil Action No. 1:09–cv–00131, 2010 WL
3835703 (N.D.W.Va. Sept. 28, 2010) (citing Walsh v. Pullman Co., 10 F.R.D. 77
(S.D.N.Y.1948)). Moreover, under Fed.R.Civ.P. 26(b)(2)(C), the court may limit
deposition testimony that is unreasonably cumulative or duplicative. This rule “cautions
that all permissible discovery must be measured against the yardstick of
proportionality.” Lynn v. Monarch Recovery Management, Inc., 285 F.R.D. 350, 355
(D. Md. 2012) (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523
(D. Md. 2010)).
Here, Ms. Bishop argues that she is elderly, has no knowledge regarding the facts
of this case, and has previously been deposed on her personal dealings with Quicken.
Accordingly, a deposition by oral examination would be stressful, oppressive, and
burdensome and would likely yield only duplicative testimony. However, Ms. Bishop
provides no specific demonstration of fact to corroborate her fears that a deposition by
oral examination would present a threat to her physical or mental health. For that
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reason, the undersigned declines to prohibit the taking of a deposition or require
Quicken to obtain Ms. Bishop’s testimony by written questions.
In addition, although Ms. Bishop represents that she has no information
pertinent to Plaintiff’s claims, she has been identified as a “pattern and practice” witness
in this case. Consequently, Quicken is entitled to discover from Ms. Bishop, under oath,
the nature and extent of her knowledge and her involvement with the Plaintiff, even if
the deposition only confirms that Ms. Bishop has limited information relevant to
Plaintiff’s complaint. On the other hand, Quicken is not free to re-depose Ms. Bishop on
the complete particulars of her own lawsuit against Quicken. Such testimony would be
unnecessarily duplicative and burdensome to Ms. Bishop. Quicken has access to and
may use Ms. Bishop’s prior deposition testimony as permitted by the Federal Rules of
Evidence. Therefore, the undersigned finds that some limitations on the deposition are
appropriate.
Wherefore, for the forgoing reasons, the Court ORDERS as follows:
1.

Quicken may take Ms. Bishop’s deposition by oral examination;

2.

The deposition shall be scheduled on a date and at a time and location

convenient for Ms. Bishop after consulting with her or her attorney. If Quicken makes
reasonable efforts to obtain a convenient date, time, and location, but is unable to obtain
them due to a lack of cooperation by the witness or her attorney, Quicken may proceed
to select the date, time and location as permitted by Fed.R.Civ.P. 45. Quicken shall serve
Ms. Bishop (or, if authorized, her attorney) with the amended subpoena and requisite
fee;
3.

The deposition shall take no longer than two hours; and

4.

Quicken shall make reasonable efforts to avoid cumulative or duplicative
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testimony. To the extent that Ms. Bishop has already provided information in her
deposition taken in the 2009 litigation against Quicken, Quicken shall avoid asking
questions that seek the same information.
The Clerk is directed to provide a copy of this order to counsel of record and any
unrepresented party.
ENTERED: August 22, 2013.

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