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Lessert v. BNSF Railway Co.

United States District Court, D. South Dakota, Western Division

July 30, 2019

GERALD LESSERT, SPECIAL ADMINISTRATOR OF THE ESTATE OF RICHARD CLAYMORE LESSERT, DECEASED; Plaintiff,
v.
BNSF RAILWAY COMPANY, A CORPORATION; Defendant.

          ORDER ON MOTION TO QUASH; MOTION FOR PROTECTIVE ORDER; MOTION TO EXTEND DEADLINES; MOTION TO LIFT ORDER EXTENDING TIME FOR PLAINTIFF TO RESPOND

          DANETA WOLLMANN UNITED STATES MAGISTRATE JUDGE.

         This is an action brought under the Federal Employers' Liability Act, 45 U.S.C. §§ 51, et seq. Defendant BNSF Railway Co. filed a Motion to Quash and a Motion for Protective Order on Plaintiff Gerald Lessert's Fed.R.Civ.P. 30(b)(6) deposition notices (Doc. 65). Also pending is Plaintiff's Motion to Extend Deadlines Relevant to Pending Work. (Doc. 63). United States District Court Judge Jeffrey L. Viken, Chief Judge, referred the case to this magistrate judge for the purpose of resolving pretrial motions. (Doc. 121).

         FACTUAL BACKGROUND

         The present dispute stems from two Rule 30(b)(6) notices that Plaintiff served upon Defendant on April 24, 2019. (Docs. 67-1, 67-2). The first notice encompasses Defendant's training, education, and instructions. (Doc. 67-1). The second notice encompasses testing, qualification, and certification. (Doc. 67-2). Defendant objects to the notices and argues they are overly broad, lack relevance, and that it is impossible for Defendant to present a knowledgeable deponent. (Doc. 66 at p. 2-6). For those reasons, Defendant requests a protective order. (Id.). Defendant further states the notices are unduly burdensome because Plaintiff served Defendant on April 24, 2019, and requested that the depositions take place on May 1, 2019, the final day of the discovery period. For this reason, Defendant asks the court to quash the notices. (Id. at p. 6-7). On May 1, 2019, Plaintiff filed a motion to extend deadlines relevant to pending work, asking the court to extend the discovery deadline for certain purposes. (Doc. 63). Defendant opposes that motion. (Doc. 89). Finally, Defendant requests to lift the stay on briefing regarding a pending motion for partial summary judgment. (Doc. 122; see Docs. 47, 53). Plaintiff opposes that motion, stating that the 30(b)(6) depositions are vital to Plaintiff's ability to respond to the motion for summary judgment. (Doc. 145).

         DISCUSSION

         Under Fed.R.Civ.P. 30(b)(6), a party may designate a public or private corporation as the deponent and list with reasonable particularity the matters the party wishes to examine the corporation on. The corporation must then designate one or more persons to testify on behalf of the corporation. Id. “The persons designated must testify about information known or reasonably available to the organization.” Id. The corporation “must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the interrogator] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed by [the interrogator] as to the relevant subject matters.” Murphy v. Kmart Corp., 255 F.R.D. 497, 504-05 (D.S.D. 2009) (internal quotation omitted) (alterations in original). “If no current employee has sufficient knowledge to provide the requested information, the party is obligated to prepare [one or more witnesses] so that they may give complete, knowledgeable and binding answers on behalf of the corporation.” Id. at 505 (quoting Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995)) (alteration in original). Here, Defendant argues the information sought through Plaintiff's Rule 30(b)(6) notices is too broad, imposes an undue burden, and is not the proper subject of a deposition.

         The scope of discovery is governed by Fed.R.Civ.P. 26. The scope described by that rule is broad:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy . . . encompass[es] ‘any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'” Murphy, 255 F.R.D. at 501 (quoting E.E.O.C. v. Woodmen of the World Life Ins. Soc., 2007 WL 1217919, at *1 (D. Neb. Mar. 15, 2007); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The party making the discovery request must make some threshold showing of relevance. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). The burden then shifts to the party resisting discovery to explain why the discovery request is improper. Murphy, 255 F.R.D. at 502.

         I. Motion for Protective Order

         A party may obtain a protective order upon a showing of good cause. General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973). Federal Rule of Civil Procedure 26(c)(1) governs the granting of a protective order:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending-or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]

         The trial court has significant discretion in either granting or denying a protective order, and “only an abuse of that discretion would be cause for reversal.” General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973). Under Rule 26(c), a court may grant a protective order only upon a showing of good cause by the moving party. Id. The movant must articulate “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Id. (internal citation and quotation marks omitted). The court must also consider “the relative hardship to the non- moving party should the protective order be granted.” Id. (internal citation omitted).

         Defendant requests a protective order limiting the information sought by Plaintiff in his Rule 30(b)(6) notices. Defendant states the requests are overly broad and burdensome in the following ways: (1) the volume of employees identified is largely irrelevant to Plaintiff's specific conduct; (2) the timeframe outlined is too broad; and (3) the language “in any form” and “any tangible things” create an impossible burden. (Doc. 66 at p. 4-6). Defendant also objects to any question about federal ...


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