Arassi et al v. The Home Depot Inc et al

Filing 43

ORDER signed by Magistrate Judge Nancy Joseph on 4/9/2014 DENYING 36 Motion to Quash. Please SEE ORDER for details. (cc: all counsel) (teb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SIAMAK ARASSI, M.D. AND
FATEMEH ARASSI,
Plaintiffs,
v.

Case No. 13-CV-684

WEBER-STEPHEN PRODUCTS LLC,
Defendant.

ORDER ON MOTION TO QUASH SUBPOENAS COMPELLING DEPOSITIONS OF
PLAINTIFFS’ MINOR CHILDREN

This matter is before me on plaintiffs’, Dr. Arasssi’s and Fatemah Arassi’s, motion to quash
defendant’s, Weber-Stephen Products, subpoenas compelling depositions of the Arassi’s two minor
children. The Arassis argue that their daughters’ depositions would subject them to undue burden
and emotional harm, and are being sought for the sole purpose of harassing the plaintiffs. WeberStephen counters that it seeks to depose the minor witnesses because they are likely to have
discoverable information pertaining to this lawsuit. I have considered all of the pleadings and oral
arguments presented on the motion. For the reasons explained in this order, the motion is denied.
BACKGROUND
Dr. Arassi and Fatemah Arassi bring this personal injuries action against Weber-Stephen
Products. Dr. Arassi claims that he suffered a permanent life-altering hand injury in 2010 while
attempting to assemble a Weber gas grill. As a result of the accident, Dr. Arassi and his wife,
Fatemeh Arassi, have asserted claims against Weber for past and future medical expenses, pain and

suffering, loss of society and companionship, lost wages, and loss of future earning capacity. Their
two minor daughters, ages 14 and 10, are not parties to the lawsuit.
Weber has deposed Dr. Arassi, Mrs. Arassi, and Mrs. Arassi’s mother, and now seeks to
depose the Arrasis’ minor daughters. Defendant argues that throughout the pleadings, depositions,
and disclosures, the Arassis have repeatedly maintained that part (if not most) of the damages in the
case stem from a significant alteration of Dr. Arassi’s family and home life. According to the
defendant, the children, who are members of the household, are thus likely to have information
pertaining to this lawsuit. More specifically, during oral argument, defendant argued that it seeks to
depose the children about the accident as they were in the home at the time. Additionally it seeks to
question them regarding their observations of their parents before and after the accident and their
family life before and after the accident. Defendant does not seek to question the children regarding
their parents’ financial affairs.
The Arassis seek to quash the subpoena arguing that although the accident has also had
negative consequences on their children, they have not asserted claims on behalf of their children
because of the harmful mental and emotional effects the litigation would have on them. Additionally,
they assert that because of the accident and the stress it has put on the Arassi family, both daughters
are receiving mental health treatment. More specifically, they argue that under the circumstances,
the potential for harm and risk of harassment outweigh any potential benefits of subjecting the Arassi
minors to the depositions. Additionally, the plaintiffs argue that to the extent that the two children
have information, they are not the only available source of that information.
ANALYSIS
Generally, the Federal Rules of Civil Procedure allow for broad discovery. Fed. R. Civ. P.
26(b) provides that parties “may obtain discovery regarding any nonprivileged matter that is relevant
-2-

to any party’s claim or defense . . . [r]elevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Despite the
general breadth of discovery, the court may limit discovery where the discovery sought can be
obtained from some other source that is more convenient, less burdensome, or less expensive, or the
burden or expense of the proposed discovery outweighs its likely benefits. See Fed. R. Civ. P.
26(b)(2)(C)(i) & (iii). Also, Rule 26 provides that “for good cause shown, the court . . . may make
any order which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). Finally, Rule 45 provides that a
subpoena for relevant information may be quashed or modified if it “subjects a person to undue
burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv).
When addressing a motion to quash a subpoena, the court must balance the interest served
by demanding compliance with the subpoena against the interests furthered by quashing it. Mirebeau
of Geneva Lake LLC v. City of Lake Geneva, No. 08-CV-693, 2009 U.S. Dist. Lexis 101104, *13 (E.D.
Wis. Oct. 15, 2009) (quoting 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2463 (2d ed 1995)). That is, the court must compare “the hardship to the party [or
person] against whom discovery is sought, if discovery is allowed, with the hardship to the party
seeking discovery if discovery is denied.” Marrese v. American Academy of Orthopaedic Surgeons, 726
F.2d 1150, 1159 (7th Cir. 1984) (en banc ). The party opposing discovery has the burden of showing
the discovery is overly broad, unduly burdensome, or not relevant. Teed v. JT Packard & Associates,
Inc., No. 10-MISC-23, 2010 WL 2925902, *2 (E.D. Wis. July 20, 2010).
Applying these standards here, I find that the plaintiffs have not met their burden to quash the
subpoena for deposition of the two minor Arassi children. Here, the parties, correctly, do not dispute

-3-

the relevance of the information sought by Defendant Weber-Stephens or that the Arassi children are
likely to have discoverable information. The parties, however, dispute the risk of harm and
harassment if the children are to be subjected to deposition and whether the information sought from
the children is available from other sources or is duplicative. I will address each in turn.
As to the claim of potential harm to the children, plaintiffs assert that because of the accident
and the stress it has put on the Arassi family, both children are receiving mental health treatment and
that participation in the lawsuit would be harmful to the mental and emotional health of the children.
In support, they have submitted letters from the children’s mental health providers. In weighing this
argument, I have given great consideration to the young ages of the children: presently 14 and 10
years old, and 10 and 6 years old at the time of the accident. I have considered that litigation can be
anxiety-inducing for laypersons, especially for children of a young age and that the two children are
presently receiving therapy. I have also considered the subject matter of the deposition. Compare
Flanagan v. Wyndham Int’l, Inc., 231 F.R.D 98 (Dist. D.C. 2005) (denying motion to quash where
minor was to be deposed on sexual assault). Finally, I have considered that the children are not
parties to this complaint. In the end, however, I am not persuaded that the plaintiffs have shown
with specificity that deposing the children would be irreparably harmful to them. The cursory
(perhaps, understandably so) and conclusory letters from the two mental health providers disclose
very little on which I can make a specific finding of harm. Beyond that, plaintiffs have not shown that
there are no alternatives other than quashing the subpoenas to address any potential harm to the
children. Id. at 103 (collecting cases that hold that “[t]he quashing of a subpoena is an extraordinary
measure, and is usually inappropriate absent extraordinary circumstances”). In other words, I am
not persuaded that measures and limitations cannot be fashioned to protect the children from any

-4-

irreparable harm. For example, the plaintiffs are concerned about the type and nature of questions
the children would be subjected to during the depositions. Additionally, the plaintiffs seem concerned
about exposing the children to a harassing, embarrassing, or intimidating environment. But, as the
defendant argues, plaintiffs maintain the right to object to harassing questions at the time of the
examination. Fed. R. Crim. P. 30(c)(2), (d)(3). Moreover, the court has broad discretion when
reviewing a discovery dispute to fashion appropriate limitations. Gile v. United Airlines, Inc., 95 F.3d
492, 496 (7th Cir. 1996) (explaining that the court has broad discretion when reviewing a discovery
dispute and should independently determine the proper course of discovery based upon the
arguments of the parties). Accordingly, I can set limitations on the depositions to address the specific
concerns presented here short of prohibiting the defendants from discovering issues that plaintiffs
themselves have made part of this lawsuit.
Next, the plaintiffs argue that the information sought is available from other sources or is
duplicative. Plaintiffs point out that Dr. Arassi, Mrs. Arassi, and Mrs. Arassi’s mother have already
been deposed. On balance, I also do not find that the depositions of these other witnesses warrant
prohibiting the depositions of the two minors. Though young, the children are fact-witnesses as they
were at home on the day of the accident. Too, as discussed above, they may also possess information
on changes in their home life, which plaintiffs have asserted as part of their claim. Although other
witnesses have been deposed as to both matters, the children may possess different facts or
perspectives.
Finally, the plaintiffs argue that if the depositions of the children are allowed, they should be
granted leave to amend their claim to add the children as parties. Though they may ultimately be
right, that is a matter for another day. Rule 15(a)(2) allow parties to amend pleadings with leave of

-5-

the court. Such a motion with an opportunity for the opponent to respond is not properly before me
at this time.
In sum, balancing the interests served by demanding compliance with the subpoena against
the interests furthered by quashing it, the plaintiffs have not met their burden to quash the subpoenas
for the depositions of the two Arassi minor children. Accordingly, the plaintiffs shall produce the
children for depositions on a date and time convenient to the parties and witnesses with the following
conditions:
1.

The parties shall confer and agree on a location for the deposition which may include

plaintiffs’ counsel office, the Arassi residence, or the Federal Courthouse;
2.

The parties shall notify the court of the date and time of the deposition. The court will

then be available by telephone if needed;
3.

The children shall not be questioned regarding the origination of the parents’ marriage

(i.e, arranged or otherwise) or parents’ bankruptcy; and
4.

The deposition of each child should last no more than 45 minutes in duration.
ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED that the plaintiffs’ motion to quash the
subpoenas is DENIED.
IT IS FURTHER ORDERED that the plaintiffs produce the Arassi children for depositions
on a date and time convenient to the parties and witnesses with the conditions outlines above.

-6-

Dated at Milwaukee, Wisconsin this 9th day of April, 2014.

BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

-7-