Order

*1 Pending before the Court is Defendant City of Henderson's motion for a protective order with respect to its upcoming Rule 30(b)(6) deposition. Docket No. 46. The motion was filed on an emergency basis since that deposition is set for October 2, 2020. No response is required. A hearing on the motion is also unnecessary. See Local Rule 78-1. For the reasons discussed below, the motion for protective order is DENIED.[1]

I. STANDARDS

“[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998).

“The discovery process in theory should be cooperative and largely unsupervised by the district court.” Sali v. Corona Reg. Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). Nonetheless, a party from whom discovery is sought may move for a protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). The party seeking issuance of a protective order bears the burden of persuasion. U.S. E.E.O.C. v. Caesars Entm't, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) (citing Cipollone v. Liggett Grp., 784 F.2d 1108, 1121 (3d Cir. 1986)). Such a burden is carried by demonstrating a particular need for protection supported by specific facts. Id. To that end, courts “insist[ ] on a particular and specific demonstration of fact, as distinguished from conclusory statements,” to issue a protective order. Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989). Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, are insufficient. Caesars Entertainment, 237 F.R.D. at 432. A showing that discovery may involve some inconvenience or expense is likewise insufficient to obtain a protective order. Turner Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997).

District courts possess “wide discretion to determine what constitutes a showing of good cause and to fashion a protective order that provides the appropriate degree of protection.” Swenson v. GEICO Cas. Co., ___ F.R.D. ____, 2020 WL 4815035, at *2 (D. Nev. Aug. 19 2020) (quoting Grano v. Sodexo Mgmt., Inc., ___ F.R.D. ___, 2020 WL 1975057, at *2 (S.D. Cal. Apr. 24, 2020)). Where grounds for a protective order have been established, courts have a variety of options to rectify the situation, including preventing the discovery or specifying the terms on which the discovery will be conducted. Fed. R. Civ. P. 26(c)(1)(A), (B).

II. ANALYSIS

The only deposition topic in dispute seeks testimony as to the City's “[k]nowledge of any non-privileged communications between the City of Henderson and any other person related to James M. Herndon.” The City raises several objections to this topic. The City argues primarily that the topic fails to meet the “reasonable particularity” standard established in Rule 30(b)(6). See Mot. at 4. The City similarly contends that the topic is vague. See id. In addition, the City objects on the grounds of over breadth, irrelevance, lack of proportionality, and undue burden. See, e.g., id.

*2 The Court is unpersuaded by these objections. The topic as written is fairly clear: Plaintiff seeks testimony on whether there have been any nonprivileged communications involving the City regarding him and, most significantly one would image, with respect to Plaintiff as it relates to the claims in this case. The relevance of such testimony is also apparent. As a hypothetical example, an oral or written admission by a City official admitting fault with respect to Plaintiff's alleged mistreatment in this case would presumably be within the broad scope of relevance for discovery purposes. Cf. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) (“Relevance for the purposes of discovery is defined broadly”). Lastly, no specific evidentiary showing has been made as to undue burden or proportionality, which dooms the City's position here. Cf. Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Assoc., 316 F.R.D. 327, 334 (D. Nev. 2016) (an undue burden objection requires a showing of “specific facts which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence” (quoting Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 529 (D. Nev. 1997)).[2]

The Court is also unmoved by the City's concern that it will automatically face significant repercussions if it is unable to properly prepare a witness for the deposition. The duties in preparing for a Rule 30(b)(6) deposition were long ago articulated by Judge Leen and remain well-settled. First, the deposed party has an obligation to prepare the deponent with information that is reasonably available to the party, whether from documents, discussions with employees, or other sources. E.g., Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 539 (D. Nev. 2008). If a reasonable inquiry unearths no responsive information, then the deponent may so testify. Second, preparing for a Rule 30(b)(6) deposition is by its nature somewhat burdensome, but that does not negate the propriety of the procedure. E.g., id. at 540. “Finally, if an organization designates a witness it believes in good faith would be able to provide knowledgeable responsive testimony and it becomes apparent during the deposition that the designee produced is unable to respond to relevant areas of inquiry, the responding party has a duty to designate an additional knowledgeable deponent.” Id.[3]

In short, at this stage, the City must make a reasonable inquiry into any nonprivileged communications regarding Plaintiff and must educate its deponent on the results of that inquiry. To the extent the parties later dispute the sufficiency of the preparation, relief may be sought through later motion practice as appropriate following the deposition.

III. CONCLUSION

For the reasons discussed above, Defendant's motion for protective order is DENIED.

IT IS SO ORDERED.

Footnotes

[1]

Given the imminent deposition, a somewhat truncated analysis will be provided herein.

[2]

The attached declaration simply provides that preparation would be unduly burdensome because it would involve a search and review of documents. See Mot. at 16. No declaration is provided explaining the estimated time or expense in that process, or otherwise expounding on why that process would be unduly burdensome. Moreover, as discussed herein, searching for and reviewing documents is a basic part of preparing for any Rule 30(b)(6) deposition.

[3]

Hence, the City's apparent contention that sanctions are inevitable if there is a dispute about the sufficiency of the testimony provided is misplaced. The Court notes further that the City has not shown why any dispute as to the adequacy of the preparation or the testimony provided could not be addressed through appropriate motion practice filed after the deposition. E.g., Garcia v. Serv. Empl. Int'l Union, 332 F.R.D. 351, 354 (D. Nev. 2019) (“It has long been clear in this District that, absent unusual circumstances, the outer limit for filing a motion to compel is the deadline for filing dispositive motions”).

Herndon v. City of Henderson

Citation: 2020 WL 9396483 (D. Nev. 2020)

Summary: The Court denied the City of Henderson's motion for a protective order with respect to its upcoming Rule 30(b)(6) deposition. The Court found that the topic was clear and relevant, and that the City had not provided any specific facts to support its claims of undue burden or proportionality. The Court also noted that the City had an obligation to prepare the deponent with information that is reasonably available to the party.

Court: United States District Court, D. Nevada

Date decided: September 29, 2020

Judge: Koppe, Nancy J.

JAMES M. HERNDON, Plaintiff(s), v. CITY OF HENDERSON, et al., Defendant(s) Case No.: 2:19-cv-00018-GMN-NJK United States District Court, D. Nevada Signed September 29, 2020 Counsel Jolene J. Manke, Tanner Churchill Anderson, Marjorie L. Hauf, Ganz & Hauf, Micah S. Echols, Claggett & Sykes Law Firm, Las Vegas, NV, for Plaintiff(s). Nancy D. Savage, City of Henderson Attorney's Office, Henderson, NV, for Defendant(s). Koppe, Nancy J., United States Magistrate Judge Order *1 Pending before the Court is Defendant City of Henderson's motion for a protective order with respect to its upcoming Rule 30(b)(6) deposition. Docket No. 46. The motion was filed on an emergency basis since that deposition is set for October 2, 2020. No response is required. A hearing on the motion is also unnecessary. See Local Rule 78-1. For the reasons discussed below, the motion for protective order is DENIED.[1] I. STANDARDS “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998). “The discovery process in theory should be cooperative and largely unsupervised by the district court.” Sali v. Corona Reg. Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). Nonetheless, a party from whom discovery is sought may move for a protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). The party seeking issuance of a protective order bears the burden of persuasion. U.S. E.E.O.C. v. Caesars Entm't, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) (citing Cipollone v. Liggett Grp., 784 F.2d 1108, 1121 (3d Cir. 1986)). Such a burden is carried by demonstrating a particular need for protection supported by specific facts. Id. To that end, courts “insist[ ] on a particular and specific demonstration of fact, as distinguished from conclusory statements,” to issue a protective order. Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989). Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, are insufficient. Caesars Entertainment, 237 F.R.D. at 432. A showing that discovery may involve some inconvenience or expense is likewise insufficient to obtain a protective order. Turner Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). District courts possess “wide discretion to determine what constitutes a showing of good cause and to fashion a protective order that provides the appropriate degree of protection.” Swenson v. GEICO Cas. Co., ___ F.R.D. ____, 2020 WL 4815035, at *2 (D. Nev. Aug. 19 2020) (quoting Grano v. Sodexo Mgmt., Inc., ___ F.R.D. ___, 2020 WL 1975057, at *2 (S.D. Cal. Apr. 24, 2020)). Where grounds for a protective order have been established, courts have a variety of options to rectify the situation, including preventing the discovery or specifying the terms on which the discovery will be conducted. Fed. R. Civ. P. 26(c)(1)(A), (B). II. ANALYSIS The only deposition topic in dispute seeks testimony as to the City's “[k]nowledge of any non-privileged communications between the City of Henderson and any other person related to James M. Herndon.” The City raises several objections to this topic. The City argues primarily that the topic fails to meet the “reasonable particularity” standard established in Rule 30(b)(6). See Mot. at 4. The City similarly contends that the topic is vague. See id. In addition, the City objects on the grounds of over breadth, irrelevance, lack of proportionality, and undue burden. See, e.g., id. *2 The Court is unpersuaded by these objections. The topic as written is fairly clear: Plaintiff seeks testimony on whether there have been any nonprivileged communications involving the City regarding him and, most significantly one would image, with respect to Plaintiff as it relates to the claims in this case. The relevance of such testimony is also apparent. As a hypothetical example, an oral or written admission by a City official admitting fault with respect to Plaintiff's alleged mistreatment in this case would presumably be within the broad scope of relevance for discovery purposes. Cf. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) (“Relevance for the purposes of discovery is defined broadly”). Lastly, no specific evidentiary showing has been made as to undue burden or proportionality, which dooms the City's position here. Cf. Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Assoc., 316 F.R.D. 327, 334 (D. Nev. 2016) (an undue burden objection requires a showing of “specific facts which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence” (quoting Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 529 (D. Nev. 1997)).[2] The Court is also unmoved by the City's concern that it will automatically face significant repercussions if it is unable to properly prepare a witness for the deposition. The duties in preparing for a Rule 30(b)(6) deposition were long ago articulated by Judge Leen and remain well-settled. First, the deposed party has an obligation to prepare the deponent with information that is reasonably available to the party, whether from documents, discussions with employees, or other sources. E.g., Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 539 (D. Nev. 2008). If a reasonable inquiry unearths no responsive information, then the deponent may so testify. Second, preparing for a Rule 30(b)(6) deposition is by its nature somewhat burdensome, but that does not negate the propriety of the procedure. E.g., id. at 540. “Finally, if an organization designates a witness it believes in good faith would be able to provide knowledgeable responsive testimony and it becomes apparent during the deposition that the designee produced is unable to respond to relevant areas of inquiry, the responding party has a duty to designate an additional knowledgeable deponent.” Id.[3] In short, at this stage, the City must make a reasonable inquiry into any nonprivileged communications regarding Plaintiff and must educate its deponent on the results of that inquiry. To the extent the parties later dispute the sufficiency of the preparation, relief may be sought through later motion practice as appropriate following the deposition. III. CONCLUSION For the reasons discussed above, Defendant's motion for protective order is DENIED. IT IS SO ORDERED. Footnotes [1] Given the imminent deposition, a somewhat truncated analysis will be provided herein. [2] The attached declaration simply provides that preparation would be unduly burdensome because it would involve a search and review of documents. See Mot. at 16. No declaration is provided explaining the estimated time or expense in that process, or otherwise expounding on why that process would be unduly burdensome. Moreover, as discussed herein, searching for and reviewing documents is a basic part of preparing for any Rule 30(b)(6) deposition. [3] Hence, the City's apparent contention that sanctions are inevitable if there is a dispute about the sufficiency of the testimony provided is misplaced. The Court notes further that the City has not shown why any dispute as to the adequacy of the preparation or the testimony provided could not be addressed through appropriate motion practice filed after the deposition. E.g., Garcia v. Serv. Empl. Int'l Union, 332 F.R.D. 351, 354 (D. Nev. 2019) (“It has long been clear in this District that, absent unusual circumstances, the outer limit for filing a motion to compel is the deadline for filing dispositive motions”).