*1 BEFORE THE COURT is Defendant Providence Health & Services' motion for a protective order (ECF No. 128) and motion to expedite consideration of the same (ECF No. 130). This matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein and is fully informed. For the reasons discussed below, Defendant's motion to expedite (ECF No. 130) is GRANTED and Defendant's motion for a protective order (ECF No. 128) is GRANTED IN PART.

This motion for a protective order arises out of a medical malpractice case brought by Plaintiff Clyde Este against her treating physician and her physician's employer, Defendant Providence Health & Services. See ECF Nos. 128 at 2; 132 at 2-3. On September 15, 2023, Plaintiff served Defendant with a Rule 30(b)(6) deposition notice. ECF No. 129-1 at 9. The notice listed 23 topics which Plaintiff intended to ask Defendant's 30(b)(6) designee about, and provided that the deposition would take place on October 16, 2023. Id. at 2-8. In a copy of the notice e-mailed to Defendant's attorney on the same day, Plaintiff wrote:

ECF No. 133-1 at 14.

Four days later, on Tuesday September 19, 2023, Plaintiff again followed up with Defense, indicating that she had not received a response to the September 15 e-mail but “need[ed] to find a time as soon as possible to confer.” ECF No. 133-1 at 15. The next day, September 20, Defense counsel replied that she hadn't reviewed the notice yet due to other impending deadlines and staff shortages. Id. at 16. She then stated, “If this notice is similar to the ones sent, we need to complete Dr. Yam's deposition in order to meaningfully respond to the notice. In his role, he may be one of the people with the most knowledge about some of the topics and/or he knows who would know.” Id. Plaintiff replied the same day:

Id. at 18.

The parties conferred two days later, on September 21, apparently about different but related matters. Id. at 30. However, they did not reach the issue of the 30(b)(6) deposition or the date set for that deposition. Id. As such, Plaintiff reached out the following day—Friday, September 22—with his availability for the next week. Id. Defendant indicated availability the next Friday, September 29. Id. at 31, 35. The parties conferred in-person on September 29, and Plaintiff followed up shortly after the meeting by e-mail:

Id. at 46.

A week passed without response from Defense counsel. Id. at 47. Plaintiff reached out on October 5, writing:

Id. at 47 (emphasis added).

The parties apparently conferred again five days later, on October 10. Id. at 56. Plaintiff summarized the meeting in an e-mail and doubled down on the need for the parties to select a date and narrow down the issues included in the notice:

*3 Id. at 56.

The next day, on October 11, Plaintiff again reached out via e-mail, expressing frustration that Defendant had yet to select a 30(b)(6) designee and reiterating that the Rule required Defendant to either produce a witness by the date noticed, move for a protective order, or work with Plaintiff to find an alternative date. Id. at 58. Plaintiff added that “we will be prepared with a court reporter and videographer to take these depositions on Monday as noticed.” Id. Defendant replied via e-mail:

Id. at 60 (emphasis added).

The following day, on October 12, the parties again apparently conferred, to no avail. Id. Plaintiff summarized via e-mail:

Id. at 59 (bold in original).

On Friday, October 13, Defendant replied:

Id. at 63.

In reply, Plaintiff continued to “insist that the deposition remain as scheduled” unless Defendant would agree to one of the bolded abovementioned dates. Id. at 62. Defendant answered, “I cannot agree on a new date as you know because I do not have a human identified yet.” Id. at 66.

On Friday, October 13, Defendant filed this motion for a protective order, asking the Court to “postpon[e] the corporate deposition of Defendant until a future, mutually agreeable date that allows sufficient time for Defendant to identify and prepare witnesses. Defendant believes that time will be sometime after the completion of Dr. Yam's deposition.” ECF No. 128 at 4. Defendant moved to expedite consideration of the motion by October 17. ECF No. 130.

At 9:30 a.m. on Monday, October 16, Plaintiff convened the deposition by Zoom link. ECF No. 133 at 8, ¶ 25. Counsel for Providence appeared, but no witness was produced. Id. In response to Defendant's motion, Plaintiff asserts that she is not opposed to setting a different date for the depositions, but only insists that a firm date be set for those depositions rather than extending them to some indefinite point in the future or tying them to Dr. Yam's deposition, which remains to be scheduled. ECF No. 132 at 5. Plaintiff believes Defendant was required to obtain a protective order before the scheduled October 16 deposition. Id. at 5-7. Plaintiff indicates that she intends to file for sanctions and other relief. Id. at 9. As of October 19, 2023, Plaintiff has yet to file a motion for sanctions.

The Court expects that, in the ordinary course of action, two experienced members of the Bar should be able to reach a peaceful and professional resolution of their calendaring issues without judicial intervention. Nevertheless, the Court GRANTS the motion for a protective order in part. Dr. Yam will be deposed on or before November 3, 2023. Defendant will produce its 30(b)(6) designee(s) for deposition on or before November 17, 2023. To accommodate these delays, the Court will amend the Second Amended Scheduling Order so that the initial expert disclosures and their Rule 26(a)(2) reports will be due on or by December 15, 2023. See ECF No. 124 at 2. All other dates as to the Second Amended Scheduling Order, including the April 22, 2024 discovery cutoff date, remain in effect at this time.

Rule 30(b)(6) provides:

FED. R. CIV. P. 30(b)(6). The conference between the parties must occur “as soon as practicable.” FED. R. CIV. P. 26(f)(1). The purpose behind the Rule's conference requirement is to streamline the discovery process. Pickett v. Temporary Housing, Inc., No. 2:21-CV-0174-TOR, 2023 WL 2290247, at *2 (E.D. Wash. Feb. 28, 2023) (citation omitted) (unreported).

*5 Under Rule 26(c)(1), a party from whom a deposition is sought “may move for a protective order.” FED. R. CIV. P. 26(c)(1). “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.” Id. To establish good cause, the movant “must make a clear showing of a particular and specific need for the order.” WebSideStory, Inc. v. NetRatings, Inc., 06-cv-408 WGH (AJB), 2007 WL 1120567, at *1 (S.D. Cal. Apr. 6, 2007) (unreported).

Upon a showing of good cause, the Court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... [s]pecifying the terms, [such as the] time and place or the allocation of expenses, for the disclosure or discovery.” FED. R. CIV. P. 26(c)(1)(B). “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.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

In its Second Amended Scheduling Order, this Court specifically instructed the parties that “[a]ny stipulation or motion for a ... protective order must be timely filed so as not to delay the discovery process or the Court's deadlines.” ECF No. 124 at 4. It is well-established law in the Ninth Circuit that a party seeking to stay or cancel a properly-noticed deposition must obtain a protective order from the Court before the scheduled deposition date. Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964), cert. denied, 380 U.S. 956 (1965) (“Rule 30(b) places the burden on the proposed deponent to get an order, not just to make a motion ... [o]therwise, as this case shows, a proposed deponent, by merely filing motions under Rule 30(b), could evade giving his deposition indefinitely.”); see also Gould v. Allstate Vehicle & Prop. Ins. Co., 2:22-cv-00820-LK, 2023 WL 3018865, at *14 (W.D. Wash. Apr. 20, 2023); but see Miller v. Monroe Sch. Dist., C14-1946-JCC, 2015 WL 12696531 (W.D. Wash. Aug. 10, 2015) (holding that Pioche does not require a party to obtain a protective order prior to the time of the noticed deposition, but instead “concerns the willful failure of a Defendant to appear for [a] deposition”), vacated on other grounds by 2015 WL 14018105 (W.D. Wash. Oct. 28, 2015). At least one appellate court has upheld a trial court's protective order issued after the time of the noticed deposition where the party noticing the deposition received a copy of the other party's protective order and was informed that the party to be deposed could not attend, yet refused to reschedule. See, e.g., Seldowitz v. Office of Inspector Gen. of U.S. Dep't of State, 95 Fed. App'x 465, 467 (4th Cir. 2004).

The facts here cut against the arguments of both parties. Plaintiff was aware that Defendant did not have a corporate designee prepared, but pressed forward with the scheduled deposition anyway. Defendant was forthcoming that she did not expect to have a 30(b)(6) designee at the ready until Dr. Yam was deposed, but was evasive as to what specific date would work and loath to notify the Court of the scheduling problems the parties were experiencing, despite knowing that Plaintiff intended to proceed with the deposition as calendared. To the Court's awareness, Plaintiff has yet to identify a 30(b)(6) witness.

The Court finds that the most fair and economical approach at this point is to grant the motion for the protective order in part. Since the parties could not agree to any specific days, the Court will set the dates for them and adjust the scheduling order accordingly. See FED. R. CIV. P. 26(c)(1)(B). As Defendant insists that the deposition of Dr. Yam must take place first, the parties and Dr. Yam's attorney will work together to schedule his deposition before or on November 3, 2023. Since Dr. Yam and his counsel have been on notice that he was going to be deposed in this case since at least April 2023 and have been trying to work out a time for deposition since early October, the two weeks between now and the 3rd should be easily achievable. See ECF No. 133-1 at 21-26.

*6 The Court assumes that Defendant is actively engaged in trying to identify its 30(b)(6) designee(s) at this time and working with Plaintiff to whittle down the 23 topics identified in the Notice, as counsel represented in her e-mails to Plaintiff. As such, the Court will set the deposition of Defendant's 30(b)(6) witness(es) to take place before or on November 17, 2023. That way, if Dr. Yam's deposition presents any new information about other Providence actors with knowledge of this case, Defendant will have two weeks to contact and depose those newly-identified persons.

Finally, the Court notes Plaintiff's concerns about how delaying these depositions will impact initial expert disclosures. In view of these concerns, the Court will amend the Second Amended Scheduling Order so that the initial expert disclosures and their Rule 26(a)(2) reports will be due on or by December 15, 2023. See ECF No. 124 at 2. All other dates as to the Second Amended Scheduling Order, including the April 22, 2024 discovery cutoff date, remain in effect at this time.

Moving forward, the parties will collaborate to identify mutually agreeable dates for noticed depositions. In the unlikely event that the parties cannot agree upon a set date for depositions, the party seeking relief from the noticed date will seek a protective order from the Court in sufficient advance of the scheduled time for deposition per the Scheduling Order. If time does not otherwise permit, the parties will contact Chambers to set an informal telephonic conference to be heard on such matters to avoid after-the-fact motions such as this.

ACCORDINGLY, IT IS HEREBY ORDERED:

The District Court Executive is directed to enter this Order and furnish copies to counsel.