The opinion of the court was delivered by: Karen E. Schreier Chief Judge
On January 12, 2011, defendant Native American Telecom (NAT) moved for a preliminary injunction to enjoin plaintiff, Sprint Communications Company, from withholding interstate switched access charges that NAT has already billed or will bill to Sprint in the future. Shortly before the preliminary injunction hearing on March 3, 2011, NAT moved for a protective order for discovery and Sprint moved to compel discovery from NAT. The parties had not completed briefing on these discovery motions before the March 3 hearing and, upon argument by the parties that this discovery was crucial to resolving the preliminary injunction motion, the court agreed to resolve the discovery disputes before addressing the preliminary injunction motion. The parties have now briefed the two discovery motions.*fn1 NAT's motion for a protective order is denied. Sprint's motion to compel is denied in part and granted in part.
I. NAT's Motion for a Protective Order
A. Thomas Reiman's Deposition NAT seeks a protective order to quash Sprint's notice of deposition of Thomas Reiman and seeks its reasonable attorneys' fees and expenses incurred in bringing this motion.
A motion for protective order is governed by Rule 26: "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding the disclosure or discovery . . . ." Fed. R. Civ. P. 26(c)(1)(A). Rule 26 allows the court to craft relief besides prohibiting the requested discovery outright. Fed. R. Civ. P. 26(c)(1)(B) ("The court may, for good cause, . . . specify terms, including time and place, for the disclosure or discovery . . . .").
The party seeking a protective order has "the burden to demonstrate good cause for issuance of the order and that his claim of harm must be based on more than stereotypical and conclusory statements."
Miscellaneous Docket Matter #1 v. Miscellaneous Docket Matter #2, 197 F.3d 922, 926 (8th Cir. 1999) (citing Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). The court must consider "the relative hardship to the non-moving party should the protective order be granted." Gen. Dynamics, 481 F.2d at 1212 (citing United States v. Kordel, 397 U.S. 1, 4-5 (1970)). "[B]ecause discovery rules should 'be construed to secure the just, speedy, and inexpensive determination of every action . . . judges should not hesitate to exercise appropriate control over the discovery process.' " Miscellaneous Docket Matter #1, 197 F.3d at 927 (citing Herbert v. Lando, 441 U.S. 153, 177 (1979)). The appellate court only reviews a district court's discovery order for an abuse of discretion. Id.
NAT argues that Sprint's notice is improper because it does not specify the areas of inquiry for Reiman's deposition. NAT also contends that Sprint did not designate Reiman as one of its two preliminary injunction hearing witnesses and Sprint's attempt to depose Reiman violates the parties' Interim Joint Rule 26(f) Report.
NAT reads a heightened notice requirement into Rule 30(b)(1) by arguing that the notice was insufficient because "a few day's [sic] notice to prepare Reiman for what could be a wide-ranging deposition (into unspecified areas of inquiry) does not constitute 'reasonable notice' and negatively impacts NAT's ability to adequately defend this case and prepare the actual witnesses NAT has designated for the preliminary injunction hearing." Docket 90 at 5 (emphasis in original). Sprint responds that Reiman has relevant information to NAT's claim that it faces imminent bankruptcy if the preliminary injunction is not granted because Reiman assists in managing NAT's finances. Sprint further argues that the parties had already informally agreed to Reiman's deposition: "In all previous discussions . . . NAT had always indicated that Reiman would be one of its witnesses. . . . Furthermore, as Reiman is intimately familiar with the business of NAT and has previously testified as a witness before the Court, a deposition is not outside the bounds of Reiman's capabilities." Docket 93 at 4-5.
Even though NAT argues that Sprint's notice was insufficient, it does not dispute that Reiman is a proper deponent: "NAT will not object to Sprint taking Reiman's deposition after reasonable notice and with adequate specificity as to Sprint's desired areas of inquiry." Docker 90 at 4. Reiman has testified in this case in a prior hearing on Sprint's preliminary injunction motion and should be intimately acquainted with NAT's business. Now that Sprint has clarified that Reiman will be deposed about NAT's finances and because Reiman will be deposed after the March 3 hearing, NAT has no remaining objections to Sprint deposing Reiman. Accordingly, NAT's motion for a protective order is denied.
NAT moves for "reasonable attorneys' fees and expenses incurred in bringing this motion." Docket 89 at 1. Rule 37(a)(5) applies to fees and expenses for bringing a Rule 26(c) motion. Fed. R. Civ. P. 26(c)(3). Because NAT's motion was denied, it is not entitled to expenses. Fed. R. Civ. P. 37(a)(5)(B). Further, Sprint did not move for expenses in the event that the court denied NAT's motion, a ...