United States District Court, D. South Dakota, Western Division
GERALD LESSERT, SPECIAL ADMINISTRATOR OF THE ESTATE OF RICHARD CLAYMORE LESSERT, DECEASED; Plaintiff,
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
WOLLMANN UNITED STATES MAGISTRATE JUDGE.
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).
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).
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
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
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.
Motion for Protective Order
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
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).
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