*1 This matter is before the Court on Defendant's Motions for Protective Order [ECF No. 19, Case No. 21-cv-720; ECF No. 18, Case No. 21-cv-722]. For the reasons set forth herein, the Court grants the motions.

I. BACKGROUND

Plaintiffs Bridget Renlund and Grete Krause each filed suit against Defendant Radio Systems Corporation, d/b/a Invisible Fence of Minnesota, for failure to hire based on age discrimination. [ECF No. 1-1 in Renlund; ECF No. 1-1 in Krause.] Defendant removed both cases to federal court on March 17, 2021. [ECF No. 1 in Renlund; ECF No. 1 in Krause.] The Court scheduled a joint Rule 16 conference in both cases, and encouraged counsel to discuss and propose a coordinated schedule and discovery plan for the two cases. [ECF No. 13.][1] Counsel held a conference pursuant to Federal Rule of Civil Procedure 26(f) on May 13, 2021, filing a joint Rule 26(f) Report addressing both cases on May 18, 2021. [ECF No. 15.] In the report, the parties recommended a June 11, 2021 deadline for Rule 26(a)(1) disclosures, with documents described in those disclosures by category and location to be exchanged by June 30, 2021. [Id. at 3.] The parties also recommended a November 1, 2021 deadline for the completion of all fact discovery. [Id.] In response to the suggestion that the parties consider an interim deadline for the substantial completion of document production “to facilitate the scheduling and taking of depositions,” the parties proposed a deadline of August 15, 2021. [Id.] The Court incorporated the proposed deadlines into the Pretrial Scheduling Order issued on May 26, 2021. [ECF No. 18 at 2–3.]

On May 18, 2021, the same day the parties filed their Rule 26(f) report, Plaintiffs’ counsel noticed the depositions of both Plaintiffs. (Ross Aff. Ex. 1 [ECF No. 21-1].) Krause's deposition was noticed for July 21, 2021 (id. at 2[2]), and Renlund's deposition was noticed for the following day (id. at 10). Plaintiffs’ counsel simultaneously noticed the depositions of two of Defendant's employees, Georgia Welch and Michelle Hager, to be taken in both cases on July 13, 2021. (Id. at 4, 6, 12, 14.)

Defendant's counsel objected both to Plaintiffs’ notices to take their own depositions and to having any depositions of Defendant's employees occur before Defendant had taken Plaintiffs’ depositions. Defendant's counsel also objected to having any depositions proceed before written discovery had been completed. Counsel met and conferred in writing and by phone, and over the course of several rounds of exchanges Plaintiffs’ counsel offered to postpone all of the noticed depositions until written discovery was complete, to allow Defendant's counsel a full seven hours of cross-examination of each Plaintiff immediately following the direct examination by Plaintiff's counsel, and to take the Defendant's employees’ depositions after the Plaintiffs’ depositions were completed. (Ross Aff. Ex. 2 [ECF No. 21-2].) Plaintiffs’ counsel was not willing, however, either to withdraw the notices of Plaintiffs’ depositions, i.e., to agree that Defendant's counsel would notice and take those depositions before any questioning of Plaintiffs by their own counsel, or to agree that if Plaintiffs proceeded to take their own depositions, Defendant's counsel could notice a second deposition of each Plaintiff to take place at a subsequent time of Defendant's choosing. (Id. at 4–6.) The instant Motions for Protective Order followed.

II. DISCUSSION

A. Whether Plaintiffs Should Be Allowed to Notice Their Own Depositions

*2 Defendant asks for a protective order that would preclude Plaintiffs from taking their own depositions before Defendant takes Plaintiffs’ depositions, at a time and place of Defendant's choosing. Defendant argues that self-depositions are rare and typically reserved for situations where a party is suffering a terminal illness or is likely to be unavailable at trial. See Tierney v. Omnicom Grp., Inc., No. 06-cv-14302, 2007 WL 2766680, at *1 (S.D.N.Y. Sept. 21, 2007)). Defendant points out that Plaintiffs have demonstrated no need (such as unavailability or a terminal illness) to take their own depositions during discovery, and that the goals of discovery are not served by having Plaintiffs take their own depositions because they (and their counsel) do not need to depose themselves to find out what they know. Defendant also argues that a self-deposition could compromise the integrity of the testimony and prevent meaningful cross-examination by Defendant. Defendant urges the Court to exercise its authority to issue a protective order under Federal Rule of Civil Procedure 26(c). Defendant also points to Rule 26(d)(3), which provides that the court may issue orders regarding the sequencing of discovery “for the parties’ and witnesses’ convenience and in the interests of justice.”

Plaintiffs, on the other hand, points out that Rule 30, which governs depositions by oral examination, states that “[a] party may, by oral questions, depose any person, including a party, without leave of court.” Fed. R. Civ. P. 30(a)(1).[3] They also note that Rule 30(c) provides that “examination and cross examination of a deponent proceed as they would at trial,” Fed. R. Civ. P. 30(c)(1), thus suggesting that just as a party's counsel may call that party to the stand at trial for direct examination, followed by cross-examination, so also should the party's counsel be able to notice her deposition and conduct the direct examination first. They argue that nothing in Rule 30 or any other rule precludes a party from taking her own deposition. Moreover, they argue, there are legitimate advantages to having a party take her own deposition first, including having the opportunity for the party to tell her story on direct examination in a complete, organized, and coherent narrative. This, they argue, would serve the interests of the plaintiffs, the defendant, and the Court, particularly when it comes to summary judgment.

Federal Rule of Civil Procedure 26(c) states that 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 Eighth Circuit has held that “[t]he burden is therefore upon the movant to show the necessity of [a 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). In addition, Rule 26(d)(3) provides that the “methods of discovery may be used in any sequence” unless “the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice.” Thus, the Court's discretion in issuing an order regarding the sequence of discovery under Rule 26(d)(3) appears to envision a somewhat broader set of considerations than the “annoyance, embarrassment, oppression, or undue burden or expense” contemplated by Rule 26(c). Nevertheless, courts “do not regularly issue orders altering the sequence of depositions unless a specific reason justifies taking one party's deposition before other depositions commence.” Blackmon v Bracken Constr. Co., Inc., No. 18-cv-142-BAJ/SDJ, 2020 WL 6065520, at *3 (M.D. La. Oct. 14, 2020) (citing Stein v. TriCity Healthcare Dist., 2014 WL 458021, at *2 (S.D. Cal. Feb. 4, 2014)).

The question of whether and under what circumstances a party may notice her own deposition was addressed by Magistrate Judge Franklin Noel in James v. Covidien, No. 15-cv-1179, slip op. at 2–3 (D. Minn. Sept. 4, 2015) [ECF No. 24]. In that case, the plaintiff, who was represented by the same counsel representing Plaintiffs here, also noticed his own deposition, and the defendant moved for a protective order. Id. at 1. Judge Noel first acknowledged that nothing in the Federal Rules of Civil Procedure precludes a party from taking his own deposition. Id. at 2. But Judge Noel, citing Tierney, also observed that self-depositions are rare and typically reserved for situations where a party is suffering a terminal illness or is likely to be unavailable at trial, and found that neither circumstances existed in James. Id. at 2–3. Judge Noel further reasoned that to allow a plaintiff to be deposed by his own attorney before being deposed by the defendant would not promote the full disclosure of facts or further the quest for truth, which is the overriding purpose of discovery, because a plaintiff already knows his version of events. Id. at 3. In addition, Judge Noel expressed concern that a self-deposition early in the case would create unnecessary expense because the defendant undoubtedly would want to re-depose the plaintiff after the parties had engaged in meaningful discovery. Id. Judge Noel found a protective order was warranted both under the “good cause” standard of Rule 26(c) and by the interests of justice under Rule 26(d)(3). Id. at 3.

*3 The plaintiff in James appealed, and Judge Schiltz affirmed the decision, commenting:

James v. Covidien, No. 15-cv-1179, slip op. at 2 (D. Minn. Sept. 30, 2015) [ECF No. 29].

Plaintiffs here argue that they have attempted to assuage any legitimate concerns on the part of Defendant, as well as the concerns voiced by the court in James, by agreeing that Defendant may cross-examine each Plaintiff for a full seven hours immediately following the direct examination of that Plaintiff, by agreeing to defer the Plaintiffs’ depositions until after Plaintiffs produce documents and written discovery responses, and by agreeing to postpone the depositions of Defendant's employees until after the Plaintiffs’ depositions. These concessions, they urge, would obviate any need, real or perceived, for Defendant to re-depose Plaintiffs, thus eliminating any concern regarding the inefficiency or burdensomeness of the process they propose. Plaintiffs’ counsel also represents that although the court ruled against him in James (an outcome he attributed in oral argument to the inability of Judges Noel and Schiltz to come to terms with anything other than the “conventional” order of discovery), he has been permitted by state court judges to proceed with his own clients’ depositions in four cases.

Plaintiffs are correct that nothing in Rule 30 prevents them from taking their own depositions.[4] See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2102 (3d ed.). On the other hand, Defendant is correct that the Court has the authority under Rule 26(c) to enter protective orders for good cause, and the discretion under Rule 26(d)(3) to intervene in the sequence of discovery in the interests of justice. A court has broad discretion in determining the sequence of discovery. Crawford-El v. Britton, 523 U.S. 574, 598 (1998).

Here, although Plaintiffs’ counsel's agreement assuaged some of the concerns that informed Judge Noel's and Judge Schiltz's rulings in James, the Court still finds that the interests of justice require that Defendant be permitted to notice and take Plaintiffs’ depositions before Plaintiffs are deposed by their own counsel. For several reasons, the Court finds the reasoning of Judge Noel and Judge Schiltz in James and the cases cited therein (such as Tierney) persuasive that in the absence of exceptional circumstances, such as an imminent need to preserve the party's testimony for trial, the goals of Rule 1 and the interests of justice contemplated by Rule 26(d)(3) are best served by the more typical sequence in which the opposing party notices and takes the deposition first, after it has done whatever written discovery and/or independent investigation it feels necessary to prepare for that deposition. First, the Court agrees with the reasoning in James that to allow a plaintiff to be deposed by her own attorney before being deposed by the defendant would not promote the full disclosure of facts or further the quest for truth, which is the overriding purpose of discovery. The offer of cross examination, even a full seven hours of cross examination, after Plaintiffs’ counsel has taken the depositions does not accomplish those ends. Defendant's counsel is entitled to ask the questions she wants to ask in the way she wants to ask them—consistent with the rules, of course—without having the testimony previewed through friendly questioning from Plaintiffs’ counsel.

*4 Second, although Plaintiffs’ counsel's agreement to defer the depositions until after written discovery is complete would most likely obviate the need for a separate re-deposition by Defendant, there remains a strong likelihood that the single deposition of each Plaintiff would be longer (as Defendant's counsel seeks to ask questions in her own way and on her own terms about ground already covered by Plaintiffs’ counsel) and/or more contentious (as Plaintiffs’ counsel seeks to head off such efforts to re-tread that ground with objections that the questions were “asked and answered”).

Third, the Court does not find that Plaintiffs’ interests are undermined in any meaningful way by the loss of the opportunity to lay out their story during the discovery phase under examination by their own counsel. Plaintiffs’ counsel does not need to take his clients’ depositions to learn what they know. If Plaintiffs’ counsel believes that significant information was missed under Defendant's counsel's questioning, he can ask questions on direct after Defendant's counsel has finished his examination, or he can include that additional information in an affidavit by his client in opposition to the motion for summary judgment. As for Plaintiffs’ counsel's insistence that the process he proposes better serves the interests of Defendant and the Article III judge who will consider any motion for summary judgment, the former has already made clear that its response to the offer is “Thanks, but no thanks,” and the latter, as an experienced federal district court judge, is certainly both experienced in and capable of understanding and assimilating the somewhat messy records that often accompany briefing on summary judgment.

Accordingly, the Court grants Defendant's motions in both cases insofar as they seek a protective order requiring that Defendant be allowed to take each Plaintiff's deposition before she is deposed by her own attorney, for up to seven hours and on a date Defendant chooses in consultation with Plaintiffs’ attorney.

B. Whether Plaintiffs Should Be Required to Defer the Depositions of Defendant's Employees Hager and Welch Until After Defendant Has Taken Plaintiffs’ Depositions.

Defendant also seeks a protective order to the effect that the depositions of Plaintiffs “shall proceed before the depositions of Defendant's employees or other witnesses.” (Def.’s Proposed Order [ECF No. 24].) Defendant did not brief this issue in its initial memorandum in support of its motion, believing it was disposed of by Plaintiffs’ counsel's agreement during the meet-and-confer process that Defendant's employees’ depositions could be taken after Plaintiffs’ depositions.[5] Plaintiffs’ responsive memorandum also failed to address the issue. However, at the hearing, after the Court stated its intention to rule in Defendant's favor on the issue of whether Plaintiffs could notice their own depositions, Plaintiffs’ counsel clarified that his willingness to defer Defendant's employees’ depositions had been conditioned on reaching an agreement that Plaintiffs would be allowed to take their own depositions before Defendant took their depositions. Accordingly, the Court requested post-hearing letter briefs on the issue of the sequencing of the depositions of Defendant's employees vis-à-vis those of Plaintiffs.

*5 Defendant argues in its letter that Plaintiffs should be required to submit to depositions first because Plaintiffs filed these lawsuits and have the burden of proof. (Def.’s Ltr. at 1 [ECF No. 36].) It reasons that it would be “unfair for Defendant to have to present its employees for depositions first given the nature and facts of this case.” In particular, Defendant notes that both Plaintiffs filed their lawsuits without first going through the Minnesota Department of Human Rights (MDHR) process and that as a result, Defendant's first notice of their “failure to hire” claims was when these suits were filed. (Id.) Defendant represents it does not have control over the prior owners of the dealerships for which Plaintiffs worked, and “does not have access to the typical information and records that an employer would have, including, for instance, personnel records.” (Id. at 2.) It states that it began an investigation as soon as it received notice of Plaintiffs’ suits, but that the investigation “is very much ongoing” as to both Plaintiffs and includes attempting to gather information not only from within its own records but also from third parties over whom it has no control. As a result, Defendant anticipates that although it served responses to Plaintiffs’ written discovery on June 24, 2021, it will need to supplement those responses as it gathers more information.

Defendant also points to various statements by Plaintiffs’ counsel in their meet-and-confer efforts that appear to acknowledge the importance of Defendant taking Plaintiffs’ depositions before having to present its employees for deposition. In Plaintiffs’ attorney's email of May 19, 2021, he commented on Defendant “hav[ing] had the plaintiffs’ full story gained through a through [sic] direct examination followed by your expert cross-examination with which to fully prepare Welch and Hager before we take their depositions.” (Ross Aff. Ex. 2 at 9.) And in his emails of May 26 and June 2, 2021, he again observed that taking the depositions of Welch and Hager after the depositions of the plaintiffs would allow Defendant's counsel to have “all of the facts of the case” with which to prepare Defendant's witnesses for their depositions. (Ross Aff. Ex. 2 at 4, 6.) Defendant acknowledges these emails were sent at a time when Plaintiffs’ counsel anticipated he would be able to take the depositions of his own clients. Nonetheless, Defendant contends, these comments display a recognition of the importance and reasonableness of allowing Defendant to learn the facts of the cases by, inter alia, taking Plaintiffs’ depositions before having to prepare and present Defendant's own employees for deposition. (Def.’s Ltr. at 3.)

Plaintiffs respond that promptly after the Rule 26(f) conference, they served written discovery and served notices for depositions of both Plaintiffs’ and Defendant's employees, setting the depositions in the order in which they wished to proceed. (Pls.’ Ltr. at 1 [ECF No. 37].) They note that, in contrast, Defendant has stated it will not notice depositions until after written discovery is complete, and that Defendant also chose to wait to commence that written discovery until after it received Plaintiffs’ initial disclosure documents on June 30. Plaintiffs point out that Rule 26(d)(3) provides that “methods of discovery may be used in any sequence,” Fed. R. Civ. P. 26(d)(3)(A), and that “discovery by one party does not require any other party to delay its discovery,” Fed. R. Civ. P. 26(d)(3)(B). Thus, they argue, just because Defendant may have elected to defer taking depositions does not mean Plaintiffs’ own discovery efforts, including depositions of Defendant's employees, should be governed by that same timing. (Pls.’ Ltr. at 1.) Finally, Plaintiffs argue they are entitled to take the depositions of Defendant's employees before Defendant takes any depositions because Plaintiffs served their notices first and are therefore entitled to priority. (Id. at 1–2.) Nevertheless, Plaintiffs state they are willing to defer the depositions of Defendant's employees until after written discovery is complete, provided Plaintiffs are permitted to take the depositions of Defendant's employees before Defendant takes the depositions of Plaintiffs. (Id. at 2.)

Thus, the issue before the Court is narrowed to whether Plaintiffs must be required to wait until after their own depositions have been taken by Defendant before they may take the depositions of Defendant's employees.

*6 The Court turns first to Plaintiffs’ argument that they are entitled to “priority” in taking Defendant's employees’ depositions because they noticed them first. But “the ‘priority rule’ ... —i.e., the first to ask, wins—no longer controls the sequencing of depositions in federal court. And it hasn't been around for quite some time.” Blackmon, 2020 WL 6065520, at *3 (citing the advisory committee note to the 1970 amendments to Rule 26(d), which note that the “priority rule developed by some courts, which confers priority on the party who first serves notice of taking a deposition, is unsatisfactory in several important respects.”); see also Meisenheimer v. DAC Vision, Inc., No. 3:19-cv-1422-M, 2019 WL 6619198, at *3 (N.D. Tex. Dec. 4, 2019) (rejecting the movant's attempt to invoke the “non-existent he-who-serves-the-first-notice-can-dictate-the-order-of-depositions ... rule[ ]”); Brady v. Grendene USA, Inc., No. 12-cv-604-GPC KSC, 2014 WL 4925578, at *4 (S.D. Cal. Sept. 26, 2014) (“Thus it is clear that Rule 26(d) abolishes the deposition priority rule of the past.”); United States v. Bartesch, 110 F.R.D. 128, 129 (N.D. Ill. 1986) (“Therefore, it is clear that the priority rule, which confers priority on the party who first serves notice of taking a deposition, is abolished by Rule 26(d).”).[6] Thus, the mere fact that Plaintiffs noted the depositions of Defendant's employees first does not, in and of itself, accord “priority” in the sequencing of those depositions.

That said, “courts do not regularly issue orders altering the sequence of depositions unless a specific reason justifies taking one party's deposition before other depositions commence.” Blackmon, 2020 WL 6065520, at *3. And a number of courts have rejected the proposition that the fact that the plaintiff has the burden of proof automatically provides good cause to require the plaintiff to be deposed first, instead requiring the moving party to cite facts and circumstances particular to the case. See, e.g., id. at *4 (“To be clear, there is no general rule that a plaintiff should be deposed first simply because they bear the burden of proof at trial or initiated the lawsuit.”); Meisenheimer, 2019 WL 6619198, at *4 (“DAC relies on general customs or standards that it holds out as rules—but that are not rules and ... do not automatically provide good cause in every case to require a plaintiff to give deposition testimony [first] ....”).

In this case, the Court concludes that Defendant has shown specific reasons why the interests of justice require that Plaintiffs be deposed before Defendant's employees are deposed. Defendant does not rely merely on the Plaintiffs’ status as the parties with the burden of proof, but also points out that unlike many employment cases, Defendant did not have a prior employment history with these Plaintiffs; Plaintiffs’ claims were not first explored through the MDHR process; and Defendant is having to reach out to other entities to gather information pertinent to the claims. Furthermore, Plaintiffs’ counsel himself acknowledged the value of Defendant having the deposition testimony of his clients in order to prepare Welch and Hager for their depositions. That value has not evaporated simply because Plaintiffs’ counsel is not questioning his clients first.

For these reasons, the Court will order that Plaintiffs’ depositions must be taken by Defendant's counsel before Plaintiffs may depose Defendant's employees or notice a deposition of Defendant pursuant to Rule 30(b)(6). That said, although the Court anticipates—as did the parties themselves in their Rule 26(f) Report—that written discovery will be substantially complete before Plaintiffs are deposed, the Court does not intend this order to give Defendant's counsel unfettered leeway to delay taking Plaintiffs’ depositions and therefore to delay Plaintiffs’ ability to take key depositions of Defendant. The Court will expect Defendant to work diligently to complete its investigation, to respond to and supplement as needed written discovery served by Plaintiffs, and to serve and follow up on the written discovery directed to Plaintiffs. If there are issues concerning timing going forward, the Court expects counsel to meet and confer in good faith to resolve those consistent with the Federal Rules and the standards of civility that should guide all interactions between counsel in this District.

*7 Accordingly, IT IS HEREBY ORDERED that Defendant's Motions for Protective Order [ECF No. 19, Case No. 21-cv-720; ECF No. 18, Case No. 21-cv-722] are GRANTED as set forth fully herein.

Where the documents filed in the two cases are identical, the Court will refer only to the ECF citation in Renlund.

Page citations refer to the page numbers assigned by CM/ECF unless otherwise specified.

Rule 30(a)(2) sets forth certain exceptions which are not relevant here.

The Court does not find Plaintiffs’ reference to Rule 30(c)(1) particularly applicable here. The full sentence reads “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” Fed. R. Civ. P. 30(c)(1) (emphasis added).

During the meet-and-confer process preceding the motions, Plaintiffs’ counsel had told Defendant's counsel in emails on May 26 and June 2, 2021, that he would be willing to “move the depositions of Welch and Hager to a date after the depositions of the plaintiffs so that you have all of the facts of the case to prepare your clients for when I take their depositions.” (Ross Aff. Ex. 2 at 4, 6.)

Schlein v. Wyeth Pharmaceuticals, Inc., No. 105-cv-014, 2012 WL 10359554, at *2 (S.D. Ga. Dec. 13, 2012), cited by Plaintiffs, does not hold otherwise. The court in Schlein was addressing a dispute between two parties who had noticed the deposition of the same witness and could not agree on who would get to question the witness first. The court held that “the first party to serve a notice of deposition is entitled to priority of questioning at that deposition.” Id. (emphasis added).