Adkisson v. Jacobs Eng'g Grp., Inc.
Adkisson v. Jacobs Eng'g Grp., Inc.
2021 WL 6882422 (E.D. Tenn. 2021)
March 12, 2021
Varlan, Thomas A., United States District Judge
Summary
The Court did not address any specific issues related to Electronically Stored Information. The Court instead focused on the relevance and appropriateness of the lines of inquiry made during the third-party fact witnesses' depositions, and found that they were not oppressive or unduly burdensome.
Additional Decisions
GREG ADKISSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
KEVIN THOMPSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
JOE CUNNINGHAM, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
BILL ROSE, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
CRAIG WILKINSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
ANGIE SHELTON, as wife and next of kin on behalf of Mike Shelton, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
JOHNNY CHURCH, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
DONALD R. VANGUILDER, JR., Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
JUDY IVENS, as sister and next of kin, on behalf of JEAN NANCE, deceased, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
KEVIN THOMPSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
JOE CUNNINGHAM, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
BILL ROSE, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
CRAIG WILKINSON, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
ANGIE SHELTON, as wife and next of kin on behalf of Mike Shelton, et al., Plaintiffs,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
JOHNNY CHURCH, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
DONALD R. VANGUILDER, JR., Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant.
JUDY IVENS, as sister and next of kin, on behalf of JEAN NANCE, deceased, Plaintiff,
v.
JACOBS ENGINEERING GROUP, INC., Defendant
No.: 3:13-CV-505-TAV-HBG, No.: 3:13-CV-666-TAV-HBG, No.: 3:14-CV-20-TAV-HBG, No.: 3:15-CV-17-TAV-HBG, No.: 3:15-CV-274-TAV-HBG, No.: 3:15-CV-420-TAV-HBG, No.: 3:15-CV-460-TAV-HBG, No.: 3:15-CV-462-TAV-HBG, No.: 3:16-CV-635-TAV-HBG
United States District Court, E.D. Tennessee
Filed March 12, 2021
Counsel
Alex R. Straus, Pro Hac Vice, Arthur M. Stock, Pro Hac Vice, Lisa Anne White, Greg Coleman Law PC, Ellis Sharp, Stokes, Williams, Sharp & Davies, James K. Scott, Keith D. Stewart, John Tyler Roper, Market Street Law, PLLC, John B. DuPree, Bridgefront Law Group, PLLC, Jonathan B. Cohen, Pro Hac Vice, Louis W. Ringger, III, Mark E. Silvey, Ryan P. McMillan, William Andrew Ladnier, Adam Arthur Edwards, Greg Frederic Coleman, Justin G. Day, Milberg Coleman Bryson Phillips Grossman, PLLC First Horizon Bank, Knoxville, TN, Gary A. Davis, Davis & Whitlock, PC, Asheville, NC, Jeff Friedman, Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, AL, for Plaintiff in 3:16-CV-635-TAV-HBG.Alex R. Straus, Pro Hac Vice, Arthur M. Stock, Pro Hac Vice, Lisa Anne White, Greg Coleman Law PC, Jonathan B. Cohen, Pro Hac Vice, Louis W. Ringger, III, Mark E. Silvey, Ryan P. McMillan, William Andrew Ladnier, Adam Arthur Edwards, Greg Frederic Coleman, Justin G. Day, Milberg Coleman Bryson Phillips Grossman, PLLC First Horizon Bank, Keith D. Stewart, John Tyler Roper, James K. Scott, Market Street Law, PLLC, John B. DuPree, Bridgefront Law Group, PLLC, Knoxville, TN, Gary A. Davis, James S. Whitlock, Davis & Whitlock, PC, Asheville, NC, Jeff Friedman, Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, AL, for Plaintiffs Greg Adkisson in 3:13-CV-505-TAV-HBG, Donna Adkisson in 3:13-CV-505-TAV-HBG, Gabriel Billingsley in 3:13-CV-505-TAV-HBG, Leonard Bledsoe in 3:13-CV-505-TAV-HBG, Julie Bledsoe in 3:13-CV-505-TAV-HBG, Carl Booker in 3:13-CV-505-TAV-HBG, Karen Booker in 3:13-CV-505-TAV-HBG, Jeffery Brewer in 3:13-CV-505-TAV-HBG, Tammy Brewer in 3:13-CV-505-TAV-HBG, Ansol Clark in 3:13-CV-505-TAV-HBG, Anna Clark in 3:13-CV-505-TAV-HBG, Dan Cody in 3:13-CV-505-TAV-HBG, Elaine Cody in 3:13-CV-505-TAV-HBG, Philip Crick in 3:13-CV-505-TAV-HBG, Brenda Crick in 3:13-CV-505-TAV-HBG, Enoch Edmonds in 3:13-CV-505-TAV-HBG, Brenda Edmonds in 3:13-CV-505-TAV-HBG, Billy Gibson in 3:13-CV-505-TAV-HBG, Timothy Gibson in 3:13-CV-505-TAV-HBG, Rebecca Gibson in 3:13-CV-505-TAV-HBG, William Hedgecoth in 3:13-CV-505-TAV-HBG, Stan Hill in 3:13-CV-505-TAV-HBG, Billy Isley in 3:13-CV-505-TAV-HBG, David Johnson in 3:13-CV-505-TAV-HBG, David Jones in 3:13-CV-505-TAV-HBG, Jimmy Kilby in 3:13-CV-505-TAV-HBG, Michael McCarthy in 3:13-CV-505-TAV-HBG, Clint Mannis in 3:13-CV-505-TAV-HBG, Margaret Mannis in 3:13-CV-505-TAV-HBG, Joe Pursiful in 3:13-CV-505-TAV-HBG, Brenda Pursiful in 3:13-CV-505-TAV-HBG, Ralph Ramey in 3:13-CV-505-TAV-HBG, Jimmy Roberts in 3:13-CV-505-TAV-HBG, Robbie Roberts in 3:13-CV-505-TAV-HBG, Brian Summers in 3:13-CV-505-TAV-HBG, Robert Tedder in 3:13-CV-505-TAV-HBG, Brian Thacker in 3:13-CV-505-TAV-HBG, Ange Thacker in 3:13-CV-505-TAV-HBG, Michael Watkins in 3:13-CV-505-TAV-HBG, Jason Williams in 3:13-CV-505-TAV-HBG, Tina Williams in 3:13-CV-505-TAV-HBG, Joe Cunningham in 3:14-CV-20-TAV-HBG, Kaleb William Rose in 3:15-CV-17-TAV-HBG, Donald R. Vanguilder, Jr. in 3:15-CV-462-TAV-HBG.
Alex R. Straus, Pro Hac Vice, Arthur M. Stock, Pro Hac Vice, Lisa Anne White, Greg Coleman Law PC, Ellis Sharp, Stokes, Williams, Sharp & Davies, James K. Scott, Keith D. Stewart, John Tyler Roper, Market Street Law, PLLC, John B. DuPree, Bridgefront Law Group, PLLC, Jonathan B. Cohen, Pro Hac Vice, Louis W. Ringger, III, Mark E. Silvey, Ryan P. McMillan, William Andrew Ladnier, Adam Arthur Edwards, Greg Frederic Coleman, Justin G. Day, Milberg Coleman Bryson Phillips Grossman, PLLC First Horizon Bank, Joshua J. Bond, Hodges, Doughty & Carson PLLC, Knoxville, TN, Gary A. Davis, James S. Whitlock, Davis & Whitlock, PC, Asheville, NC, Jeff Friedman, Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, AL, for Plaintiffs in 3:13-CV-666-TAV-HBG.
Alex R. Straus, Pro Hac Vice, Arthur M. Stock, Pro Hac Vice, Lisa Anne White, Greg Coleman Law PC, John Tyler Roper, Keith D. Stewart, James K. Scott, Market Street Law, PLLC, Jonathan B. Cohen, Pro Hac Vice, Louis W. Ringger, III, Mark E. Silvey, Ryan P. McMillan, William Andrew Ladnier, Adam Arthur Edwards, Greg Frederic Coleman, John B. DuPree, Bridgefront Law Group, PLLC, Justin G. Day, Milberg Coleman Bryson Phillips Grossman, PLLC First Horizon Bank, Knoxville, TN, Gary A. Davis, Davis & Whitlock, PC, Asheville, NC, Jeff Friedman, Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, AL, for Plaintiffs Craig Wilkinson in 3:15-CV-274-TAV-HBG, Christina Wilkinson in 3:15-CV-274-TAV-HBG, Tim Bandy in 3:15-CV-274-TAV-HBG, Harvey Bass in 3:15-CV-274-TAV-HBG, Chris Jones in 3:15-CV-274-TAV-HBG, Glenn Knight in 3:15-CV-274-TAV-HBG, Frankie Norris in 3:15-CV-274-TAV-HBG, Jeff Townsley in 3:15-CV-274-TAV-HBG, Timothy Turner in 3:15-CV-274-TAV-HBG, James Phillips in 3:15-CV-274-TAV-HBG, Kenneth Shepherd in 3:15-CV-274-TAV-HBG, Angie Shelton in 3:15-CV-420-TAV-HBG, Ricky Dean Shelton in 3:15-CV-420-TAV-HBG, Johnny Church in 3:15-CV-460-TAV-HBG.
Alejandro L. Sarria, Pro Hac Vice, Covington & Burling, LLP, Washington, DC, Catherine Williams Anglin, Dwight E. Tarwater, Paine Tarwater & Bickers LLP, Knoxville, TN, Diana M. Feinstein, Pro Hac Vice, Jeremy S. Smith, Pro Hac Vice, Theane Evangelis, Pro Hac Vice, Theodore Boutrous, Jr., Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, Los Angeles, CA, James F. Sanders, James Issac Sanders, Marie T. Scott, Nathan Clay Sanders, William J. Harbison, II, Neal & Harwell, PLC, Nashville, TN, Peter S. Modlin, Pro Hac Vice, Gibson Dunn & Crutcher LLP, San Francisco, CA, for Defendant Jacobs Engineering Group, Inc. in 3:13-CV-505-TAV-HBG, 3:14-CV-20-TAV-HBG, 3:15-CV-17-TAV-HBG, 3:15-CV-274-TAV-HBG, 3:15-CV-420-TAV-HBG, 3:15-CV-460-TAV-HBG, 3:15-CV-462-TAV-HBG.
Alejandro L. Sarria, Pro Hac Vice, Covington & Burling, LLP, Washington, DC, Catherine Williams Anglin, Dwight E. Tarwater, Paine Tarwater & Bickers LLP, Knoxville, TN, James F. Sanders, Nathan Clay Sanders, William J. Harbison, II, Neal & Harwell, PLC, Nashville, TN, Jeremy S. Smith, Pro Hac Vice, Theane Evangelis, Pro Hac Vice, Theodore Boutrous, Jr., Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, Los Angeles, CA, Peter S. Modlin, Pro Hac Vice, Gibson Dunn & Crutcher LLP, San Francisco, CA, for Defendant Jacobs Engineering Group, Inc. in 3:13-CV-666-TAV-HBG, 3:16-CV-635-TAV-HBG
Varlan, Thomas A., United States District Judge
MEMORANDUM OPINION AND ORDER
*1 This matter is before the Court on plaintiffs' appeal [Doc. 641][1] of United States Magistrate Judge H. Bruce Guyton's order [Doc. 602] denying plaintiffs' renewed motion for entry of a protective order [Doc. 592]. Defendant Jacobs Engineering Group, Inc. (“Jacobs”) responded in opposition [Doc. 666]. This matter is now ripe for the Court's review. For the reasons below, plaintiff's appeal of Judge Guyton's order denying their request for a protective order [Doc. 641] is DENIED.
I. Background
The Court adopts the following background from Judge Guyton's order [Doc. 602]. Plaintiffs previously sought [Doc. 576] for the Court to enter a protective order limiting the scope of the depositions of third-party fact witnesses who are also plaintiffs in the cases before this Court that are stayed pending resolution of the Adkisson cases. Plaintiffs noted that defendant had requested to take the depositions of over 203 third-party fact witnesses disclosed by plaintiffs, and the third-party fact witnesses at issue have personal knowledge supporting the Adkisson cases.
The Proposed Protective Order [Doc. 577] attempted to limit the scope of these depositions to the following subject matters:
a. The onsite conditions at the Kingston remediation site between December 22, 2008, up to the last date of the remediation effort;
b. Communications to or from Defendant Jacobs and/or its agents regarding the onsite conditions and/or safety of the coal ash at the Kingston remediation site between December 22, 2008, up to the last date of the remediation effort;
c. The conduct of Defendant Jacobs and/or its agents during the Kingston remediation between December 22, 2008, up to the last date of the remediation effort;
d. The duration and intensity of coal ash exposure of any of the Adkisson Plaintiffs; [and]
e. The damages sustained by any of the Adkisson Plaintiffs
[Id. at ¶ 7(a)-(e)]. Plaintiffs additionally stated that “the witness's medical conditions shall not be explorable under the terms of this Protective Order” with “[t]he only exception to this limitation [being] questions confirming that the deponent has been diagnosed with a specific medical condition(s) and when they were diagnosed” [Id. at ¶¶ 10–11].
On September 3, 2020, Judge Guyton denied plaintiffs' motion for a protective order, holding first that “[u]nder Rule 26, the Court cannot find, at this time, that the depositions of these third-party fact witnesses are oppressive or subject any party to an undue burden” [Doc. 583, p. 5]. Additionally, the Court found that “[p]laintiffs have not set forth good cause for limiting the scope of the depositions of these third-party witnesses” [Id.]. However, Judge Guyton granted plaintiffs leave to refile their motion for a protective order at a later time, which would “allow the Court to consider a record of the challenged deposition topics in support of their arguments” [Id.].
*2 On September 21, 2020, plaintiffs filed their Renewed Motion for a Protective Order [Doc. 592]. Plaintiffs claimed that “[f]ollowing further third-party depositions, the record is now better developed and demonstrates that Jacobs' questioning far exceeds what is necessary, reasonable or appropriate for these depositions” [Id. at 1]. Plaintiffs objected to questioning related to (1) the third-party fact witnesses' past medical history and other personal information such as the witnesses' past history of smoking, and (2) when the third-party fact witnesses first considered filing a lawsuit, first heard about other lawsuits, first spoke with an attorney, or first believed that their health concerns were caused by exposure to coal fly ash [Id. at 9–11].
After a hearing [Doc. 600], Judge Guyton denied plaintiffs' renewed motion [Doc. 602]. Judge Guyton concluded that plaintiffs had not established that the depositions at issue were oppressive or unduly burdensome, and therefore, the proper review was the relevancy and proportionality of the specific lines of questioning that plaintiffs identified [Id. at 7]. Applying this standard, Judge Guyton concluded that the specific lines of questioning identified did not present a sufficient basis for a protective order [Id. at 8]. As to questioning about the third-party fact witnesses' medical conditions, Judge Guyton concluded that such was within the broad scope of discovery, as the third-party fact witnesses were identified in plaintiffs' Rule 26 disclosures as those likely to have discoverable information about the Adkisson plaintiffs' medical conditions [Id.]. Judge Guyton noted that, although plaintiffs argued that only the diagnoses of the potential third-party fact witnesses will be utilized by their experts, defendant nevertheless had the right to question these individuals about such medical conditions. Further, Judge Guyton found that defendant was permitted to question these individuals about the Adkisson plaintiffs' constructive knowledge of their claims [Id.].
Plaintiffs have now filed an appeal of Judge Guyton's order denying their renewed motion, arguing that Judge Guyton incorrectly determined that (1) the inquiries made during the third-party fact witnesses' depositions were relevant and proportional to the needs of the case; and (2) the manner of the third-party fact witnesses' depositions were not oppressive or unduly burdensome [Doc. 641].
II. Standard of Review
Section 636 of Title 28 of the United States Code allows district judges, subject to certain exceptions, to “designate a magistrate judge to hear and determine any pretrial matter pending before the court.” 28 U.S.C. § 636(b)(1)(A). A district judge may reconsider any pretrial matter determined under “subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” Id. “A finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. The question is not whether the finding is the best or only conclusion that can be drawn from the evidence, or whether it is the one which the reviewing court would draw.” Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).
III. Analysis
Under Rule 26(b), “[p]arties 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[.]” Fed. R. Civ. P. 26(b)(1). Courts have explained that the “scope of discovery under the Federal Rules of Civil Procedure is traditionally quite broad.” Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 242 (N.D. Ohio 2017) (quoting Lewis v. ACB Bus. Serv. Inc., 135 F.3d 389, 402 (6th Cir. 1998)).
*3 A party may move for a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). The moving party must show good cause for the protective order under Rule 26(c)(1). Id. “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Maxchief Inv. Ltd. V. Plastic Dev. Grp., LLC, No. 3:16-cv-63, 2017 WL 710956, at *1 (E.D. Tenn. Feb. 22, 2017) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).
First, the Court finds that Judge Guyton's holding that the challenged lines of inquiry were relevant and proportional to the needs of the case is not clearly erroneous or contrary to law. As to the lines of inquiry that relate to a statute of limitations defense, plaintiffs argue that these questions are irrelevant because the law on constructive knowledges requires plaintiffs to be on notice that medical conditions were sustained through exposure to coal ash and that such exposure was due to Jacobs's wrongful conduct [Doc. 641, pp. 7–8]. However, Jacobs responds that Tennessee law states that the statute of limitations commences when a plaintiff discovers, or in the exercise of reasonable care and diligence, should have discovered their injury, and the fact that other remediation workers were on notice of the alleged harm caused by fly ash is strong evidence that the Adkisson plaintiffs were also on notice [Doc. 666, p. 14]. Jacobs also notes that testimony does not have to be conclusive or decisive to be relevant [Id. at 16]. Plaintiffs' argument in this regard appears to be more of an argument regarding the merits of Jacobs's statute of limitations defense. Although the line of questioning at issue here may not elicit sufficient evidence to fully support Jacobs's statute of limitations defense, such does not mean that the questioning is not relevant to the statute of limitations issue. This testimony is relevant to when the Adkisson plaintiffs should have discovered their injury, and thus, when the statute of limitations began to run under Tennessee law. See Schultz v. Davis, 495 F.3d 289, 292 (6th Cir. 2007) (holding that Tennessee's discovery rule, the statute of limitations begins to run “when the injury occurs or is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered”) (quoting Potts v. Celotex Corp., 796 S.W. 2d 678, 680–81 (Tenn. 1990)). The Court thus agrees with Judge Guyton's determination that these lines of inquiry are relevant and appropriate.
As to lines of inquiry regarding the third-party fact witnesses' medical histories, plaintiffs contend that these questions are only relevant to the stayed cases where the deponents are plaintiffs [Doc. 641, pp. 9–10]. Jacobs responds that plaintiffs want their experts to rely on the fact that these third-party fact witnesses allegedly have various medical conditions, and yet shield the deponents from questions about whether those conditions have anything to do with fly ash [Doc. 666, p. 13]. The Court notes that “[p]laintiffs intend to produce epidemiological evidence which analyzes the development of various negative medical conditions among the population of those at the Kingston site” as evidence of specific causation at the Phase II trial [Doc. 708, p. 8]. In light of plaintiffs' intent to use evidence of the third-party fact witnesses' medical diagnoses in the Phase II trial, questions concerning the third-party fact witnesses' medical histories are directly relevant to the issue of specific causation in this case. Accordingly, the Court agrees with Judge Guyton's determination that questioning about the third-party fact witnesses' medical histories is relevant and appropriate.
*4 Further, the Court finds that Judge Guyton's holding that the manner of these depositions was not oppressive or unduly burdensome is not clearly erroneous or contrary to law. Plaintiffs argue that, because Jacobs is seeking to depose more than 200 third-party fact witnesses and medical providers, anything that extends the length of these depositions is unduly burdensome [Doc. 641, p. 15]. However, as Jacobs points out in its response [Doc. 666, p. 11], plaintiffs chose to identify this number of potential witnesses, and then declined to reduce their list to only those potential witnesses that they actually intend to call at the Phase II trial, even when such was offered as a solution to the volume of depositions otherwise necessary [Doc. 579, ¶ 4]. Indeed, Judge Guyton previously reminded the plaintiffs that any issue regarding the volume of depositions could be solved by withdrawing the names of any persons who will not potentially be witnesses at the Phase II trial [Doc. 598-1, p. 10]. Ultimately, plaintiffs made the strategic choice, as is their right, to maintain a list of over 200 potential third-party fact witnesses and decline to reduce that list. However, defendant also has the right to depose any potential witnesses regarding any matter that is relevant to the Phase II trial. As discussed above, the challenged lines of inquiry here are all relevant to the Phase II trial. Accordingly, the Court does not find plaintiffs' argument that the number of depositions merits the requested limitation on the content of those depositions. Moreover, the Court does not find that any other of plaintiffs' arguments show that the questioning in these depositions rises to the level of being oppressive or unduly burdensome. Thus, the Court agrees with Judge Guyton's determination that the manner of these depositions is not oppressive or unduly burdensome, such that a protective order is warranted.
IV. Conclusion
For the reasons stated above, plaintiffs' appeal [Doc. 641] of United States Magistrate Judge H. Bruce Guyton's order [Doc. 602] denying plaintiffs' renewed motion for entry of a protective order [Doc. 592] is DENIED.
IT IS SO ORDERED.
Footnotes
Unless otherwise indicated, all citations refer to the docket in Adkisson, et al. v. Jacobs Engineering Group, Inc., 3:13-cv-505.