United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION FOR PROTECTIVE ORDER
E. SCHREIER DISTRICT JUDGE
Eric Stormo, filed this pro se lawsuit naming the City of
Sioux Falls, R. Shawn Tornow, Dave Munson, Mike Huether, Pat
Kneip, Doug Barthel, and John Doe as defendants. Defendants
move this court to grant a motion for a protective order
requiring depositions of Shawna Goldammer and Regan Smith to
be limited to one day each and prohibiting Stormo from
scheduling and conducting depositions without specifying a
deponent. For the following reasons, defendants' motion
filed his complaint in April 2012. Docket 1. He alleged that
defendants violated his federal civil rights from 2005 to the
present because of his status as a landowner and landlord.
Id. Stormo served defendants with the original
notice to depose Goldammer on December 23, 2015. Docket 183
at 3. Goldammer's deposition was rescheduled numerous
times over the following months to fit her schedule, to fit
defendants' attorney's schedule, and because of
inclement weather. Id. During this time, Stormo
claims that he requested defendants' and their
attorneys' availability numerous times. Id. On
June 8, 2016, Stormo sent an email to defendants'
attorney Gary Thimsen asking what times would be convenient
to depose Goldammer and mentioning that he planned to depose
her over two days. Docket 184-1 at 2.
August 5, 2015, Stormo served defendants with notice that he
planned to depose Goldammer and Smith on August 18, 2016.
Docket 182-1; Docket 182-2. On August 9, 2016, Thimsen told
Stormo that he would be out of the state on August 18, and
the deposition would have to be rescheduled. Docket 182-3.
The next day, Stormo asked for Thimsen's availability in
August and told Thimsen that he planned on taking depositions
for ten days. Docket 184-2 at 3. Thimsen responded saying
that he had “no intention of taking ten consecutive
days of depositions” and that because Stormo
“chose to bring this lawsuit, ” it should be him,
rather than Thimsen or defendants, that adapts his schedule.
Id. at 4. Thimsen did not provide his availability.
August 12, 2016, Stormo served defendants with notice of his
plans to carry out a number of depositions between August 18
and August 29, 2016. Docket 182-4. In the “Party
Noticed For Deposition” portion of the schedule, Stormo
wrote “TBD” for August 23, August 25, August 26,
and August 29. Id. at 3. On August 17, 2016,
defendants' attorney, Morgan Brekke, sent an email to
Stormo objecting to this notice. Docket 182-5. Brekke
objected to scheduling the Goldammer and Smith depositions
over multiple days and using “TBD” instead of
scheduling specific witnesses. Id. at 1. Brekke also
told Stormo that it was too late to supplement his notice.
Id. at 2. Finally, Brekke gave Stormo until 4:30
that day to respond before defendants' moved for a
protective order. Id.
that day, defendants filed this motion for a protective
order. Docket 179. On August 31, 2016, Stormo responded,
arguing that his actions had been reasonable. Docket 183.
move for a protective order to limit the Goldammer and Smith
depositions to one day each. Docket 179. They also seek a
protective order preventing Stormo from scheduling dates for
depositions in which he has not identified a deponent.
Id. “A party or any person from whom discovery
is sought may move for a protective order in the court where
the action is pending . . . .” Fed.R.Civ.P. 26(c)(1).
“The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense[.]” Id.
“The burden is therefore upon the movant to show the
necessity of [the protective order's] issuance, which
contemplates ‘a particular and specific demonstration
of fact, as distinguished from stereotyped and conclusory
statements[.]' ” Gen. Dynamics Corp. v.. Selb
Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973) (quoting
8A Charles Alan Wright et al., Federal Practice and
Procedure: Civil § 2035 (3d ed. 2016).
otherwise stipulated or ordered by the court, a deposition is
limited to one day of 7 hours.” Fed.R.Civ.P. 30(b).
Defendants argue that Stormo should be prevented from
deposing Goldammer and Smith on different days. Defendants
have failed to show good cause; bifurcated depositions do not
necessarily violate Rule 30. Defendants claim that this would
be oppressive and unfair because it would give Stormo two
chances to depose each deponent. Docket 180 at 3.
Stormo's original proposal, however, was to depose both
Goldammer and Smith in single sessions, but defendants'
attorneys either could not or would not agree to those dates.
Afterwards, defendants' attorneys did not offer other
solutions and did not respond to Stormo's attempts to
find one. Stormo also claims that other depositions in this
case have been bifurcated. Docket 183 at 4. In this instance,
scheduling the depositions over two days is not oppressive or
also argue that it would be unduly burdensome and annoying
because deponents would have to miss multiple days of work.
Docket 180 at 3. Stormo claims that he proposed two different
sessions to accommodate the deponents' schedules because
they had activities that could not be rescheduled. Docket 183
at 4. Further, defendants' responses to Stormo's
notices do not suggest that they were fully cooperating,
rather that they ignored Stormo's requests for their
schedules and availability and filed this motion instead of
coming up with a suitable time for the deposition. Defendants
have not met their burden to show the necessity of a
protective order, and their motion is denied.
Scheduling Depositions ...