Miller v. Legacy Bank
Miller v. Legacy Bank
2023 WL 11987072 (W.D. Okla. 2023)
November 30, 2023
DeGiusti, Timothy D., United States District Judge
Summary
The court granted Defendant's request for immediate, provisional relief and stayed all depositions in the case. The court also ordered that Plaintiff's deposition should be taken first, and that Plaintiff is only allowed to question the witness on the substance of Defendant's discovery responses, not on issues already decided by the court or irrelevant to the claims and defenses in the case. Plaintiff is also not permitted to question the witness on the court's alleged bias or ex parte communications with defense counsel.
Additional Decisions
MARQUISE MILLER, Plaintiff,
v.
LEGACY BANK, Defendant
v.
LEGACY BANK, Defendant
Case No. CIV-20-946-D
United States District Court, W.D. Oklahoma
Filed November 30, 2023
DeGiusti, Timothy D., United States District Judge
ORDER
*1 Before the Court is Defendant Legacy Bank's Motion for Protective Order on Plaintiff's Subpoenas and Notices to Take Legacy Bank 30(b)(6) Deposition [Doc. No. 280]. Plaintiff filed a response [Doc. No. 284], and Defendant replied [Doc. No. 291]. The matter is fully briefed and at issue.
This case concerns Defendant Legacy Bank's denial of a loan application submitted by pro se Plaintiff Marquise Miller. Plaintiff, an African American pastor in Oklahoma City, applied for an $80,000.00 commercial loan from Defendant to remodel his property located at 2110 N. Lottie Avenue in 2015. Defendant ultimately denied Plaintiff's application based on the “location [of the property], scope of rehabilitation of the property, crime rate in the area, vacancy/abandonment of properties in the surrounding area, and real estate market in the area.” Sec. Am. Compl. [Doc. No. 27], ¶ 117. Plaintiff asserts that Defendant denied his loan application because he is African American and because the property is located in a predominately Black neighborhood. After Defendant denied his loan application, Plaintiff sought and obtained an identical loan from Arvest Bank.
On October 11, 2023, Plaintiff filed a Subpoena and Notice of Deposition to Legacy's Corporate Representatives [Doc. No. 271]. After the parties' meet-and-confer with Magistrate Judge Suzanne Mitchell on October 18, 2023, Plaintiff filed a new Subpoena and First Amended Notice of Video Deposition of Legacy Bank's Corporate Representative(s) [Doc. No. 278] (the “Notice”).
On October 20, 2023, Defendant filed the instant Motion, in which it seeks immediate, provisional relief in the form of an “Order from the Court that Legacy Bank's corporate representative deposition not be taken on Tuesday, November 7.” Def.'s Mot. at 2. Defendant's Motion also includes the following requests for relief: “(1) Miller's deposition be taken prior to the Legacy Bank deposition, (2) the two depositions not be taken until at least ten days after Miller has fully complied with the Court's Order Sustaining Legacy Bank's Motions to Compel, (3) Miller's 30(b)(6) Notice be stricken because of the inappropriate topics and his failure to abide by his Rule 30(b)(6) obligations, (4) the depositions be taken in the presence of the Court, and (5) Legacy Bank be awarded its attorney's fees and costs, and/or other sanctions be imposed, because Legacy [B]ank has had to yet again seek court relief on issues that should be resolvable without court action.” Id. at 13.
On October 25, 2023, the Court granted Defendant's request for immediate, provisional relief, and stayed all depositions in the case pending the Court's order on Defendant's remaining requests for relief. See 10/25/2023 Order [Doc. No. 281]. Now that Plaintiff has responded to Defendant's Motion, the Court takes up Defendant's remaining requests for relief.
Aside from its request for costs and attorney fees and/or other sanctions, Defendant sets forth four requests for relief: “(1) Miller's deposition be taken prior to the Legacy Bank deposition, (2) the two depositions not be taken until at least ten days after Miller has fully complied with the Court's Order Sustaining Legacy Bank's Motions to Compel, (3) Miller's 30(b)(6) Notice be stricken because of the inappropriate topics and his failure to abide by his Rule 30(b)(6) obligations, (4) the depositions be taken in the presence of the Court.” Def.'s Mot. at 13. The Court addresses each request for relief in turn.
I. Defendant is entitled to depose Plaintiff before Plaintiff deposes Defendant's corporate representative.
*2 Defendant argues that, when parties are not able to agree on the order of depositions, the depositions should proceed in the order requested. Id. at 4. Moreover, Defendant argues, courts “have placed particular emphasis on who first informally asked for the deposition in order to foster informal cooperation, curb abusive races to issue formal notices, and avoid unproductive arguments about the technicalities of formal notices.” Id. at 4-5. And “numerous courts have held that where the deposition priority between a plaintiff and a defendant is disputed, fairness weighs in favor of a plaintiff's deposition being taken first, because the plaintiff commenced the lawsuit, bears the burden of proof, and should be prepared to demonstrate the basis of his or her claims.” Id. at 5.
In response, Plaintiff lodges numerous arguments, all of which center on the contention that Defendant should not be allowed to deviate from the protocols set forth in the Federal Rules of Civil Procedure. See Pl.'s Resp. at 5-8. Plaintiff's argument seems to be that the Federal Rules of Civil Procedure do not give the Court the ability to control the order in which parties to a lawsuit are deposed. However, Plaintiff does not squarely address the caselaw in Defendant's Motion standing for the proposition that “the longstanding rule is that depositions should proceed in the order requested or demanded.” See Def.'s Mot. at 4-5.
After careful consideration of the parties' positions, the Court finds that Plaintiff's deposition should be taken before Defendant's corporate representative. Defendant first requested Plaintiff's deposition on May 8, 2023. Def.'s Mot., Ex. 3 [Doc. No. 280-3]. However, when Plaintiff did not respond, Defendant issued a formal notice of deposition. 5/11/2023 Notice [Doc. No. 212]. Shortly after Defendant formally noticed Plaintiff's deposition, the Court stayed the case pending resolution of its show cause order. See 5/18/2023 Order [Doc. No. 220]. After the Court decided against dismissing the case with prejudice, Plaintiff restarted his practice of frequent filings, which has had the practical effect of delaying any depositions in this case.
Plaintiff's litigation conduct throughout this case is well-documented; the Court need not rehash it here. This behavior has clearly impacted the parties' ability to move the case forward and reach a resolution on the merits. Allowing Defendant to depose Plaintiff first accounts for: Defendant's previous attempts to schedule Plaintiff's deposition without Court interference; the Court's broad discretion in ordering one party to be deposed before another when the parties cannot reach an agreement; and Plaintiff's litigious behavior throughout this case preventing Defendant from previously deposing Plaintiff. See Baggs v. Highland Towing, L.L.C., No. Civ.A. 99-1318, 1999 WL 539459, at *2 (E.D. La. July 22, 1999) (noting that “it makes sense in this case that the party whose allegations commenced the lawsuit should be deposed first so that a full understanding of his claims may be obtained before other discovery occurs”); Golla v. City of Bossier City, Civ. A. No. 06-2298, 2007 WL 2253416, at *1 (W.D. La. Aug. 1, 2007) (“Consistent with the vast discretion afforded courts in the management of discovery, the court hereby orders Plaintiffs to submit to depositions first. Plaintiffs filed this lawsuit and, having the burden of proof, will be required to present their evidence at trial first. It is not unfair to require them to be deposed first.”); Givens v. Smith, No. 5:12CV155, 2014 WL 1393685, at *8 (N.D. W. Va. Apr. 9, 2014) (“Under some circumstances, it is appropriate for a Court to exercise this discretion to allow one party to be deposed before other discovery takes place.”).
II. Defendant is not entitled to an order based on speculation that Plaintiff will fail to abide by a Court order.
*3 Defendant argues that neither Defendant's corporate representative deposition nor Plaintiff's deposition should occur until at least ten days after Plaintiff “has fully complied with the Court's order compelling discovery responses.” Def.'s Mot. at 7.
In response, Plaintiff again argues that the Federal Rules of Civil Procedure do not allow the Court to place restraints on when a deposition can occur, including any requirement that depositions occur after Plaintiff has complied with the Court's order regarding his discovery responses and document production. See Pl.'s Resp. at 6-7, 7-8.
After careful consideration of the parties' positions, the Court finds that Defendant's requested relief is premature and speculative. At the time Defendant filed its Motion, Plaintiff's deadline to comply with the Court's order to supplement his discovery responses and document production had not expired. However, that is no longer the case. If Plaintiff has failed to comply with the Court's order, Defendant is free to bring such failure to the Court's attention in the manner it sees fit. But the Court cannot grant relief based on the argument that Plaintiff might not comply with the Court's orders.
III. Plaintiff is permitted to depose Defendant's corporate representative on certain of his 30(b)(6) topics.
Defendant argues that Plaintiff's Notice should be quashed in its entirety. Def.'s Mot. at 9. However, in its Motion, Defendant addresses only a handful of “highly inappropriate topics.” Id. at 9-10. Defendant further argues that the Court should strike Plaintiff's Notice in its entirety due to Plaintiff's failure to meet-and-confer on his proposed 30(b)(6) topics. Id. at 10-11.
In response, Plaintiff addresses certain of his proposed topics and claims that, because a corporate representative deposition is as broad as discovery, his topics are appropriate. See Pl.'s Resp. at 8-16. Plaintiff further contends that he attempted to satisfy his meet-and-confer duty. See id. at 8-11.
After careful consideration of the parties' positions, and in the interest of promoting resolution of this case on its merits, the Court declines to quash Plaintiff's Notice in full. Although some of Plaintiff's proposed topics are facially irrelevant, some relate to information relevant to the parties' claims and defenses in this case and are, therefore, appropriate topics of inquiry. The Court will address each of Plaintiff's proposed topics in turn.
Topic 1 relates to Defendant's “alleged responses to [Plaintiff's] Request for Production.” Pl.'s Notice, Ex. 1 [Doc. No. 278-1] at 2. To the extent Plaintiff intends to question Defendant's corporate representative on the substance of its discovery responses, the Court will allow him to do so. However, Plaintiff is not permitted to question the witness on issues already decided by the Court and which are irrelevant to the parties' claims and defenses, such as Plaintiff's argument regarding document production via Dropbox or flash drive. See, e.g., 11/8/2023 Order [Doc. No. 302]. Plaintiff's questioning shall address only the substance of Defendant's discovery responses.
Topic 2 relates to Plaintiff's contention that the Court has engaged in ex parte communications with defense counsel, and that the Court is biased against Plaintiff. On its face, Topic 2 appears irrelevant to the parties' claims and defenses; therefore, Plaintiff “has the burden to show the relevancy of the [discovery sought].” Cardenas v. Dorel Juvenile Grp., Inc., 232 F.R.D. 377, 382-83 (D. Kan. 2005). Plaintiff has failed to do so. Further, Plaintiff's concerns regarding the Court's purported bias were thoroughly addressed by the Court in its order denying Plaintiff's motion to disqualify. See 8/31/2023 Order [Doc. No. 244]. The Tenth Circuit has since denied Plaintiff's petition for writ of mandamus seeking to disqualify the Court. See 9/29/2023 10th Cir. Order [Doc. No. 263]. Plaintiff is not permitted to question Defendant's corporate representative on Topic 2.
*4 Topic 3 relates to Defendant's “policies and procedures regarding qualifying loan applicants for commercial loans.” Pl.'s Notice, Ex. 1 at 3. On its face, Topic 3 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382 (“When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish that the requested discovery does not come within the scope of relevance as defined under Rule 26(b)(1), or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”). Plaintiff is permitted to question Defendant's corporate representative on Topic 3.
Topic 4 relates to Defendant “cancelling the appraisal on [the] Lottie Property and addressing the type of appraisal that was scheduled.” Pl.'s Notice, Ex. 1 at 5. On its face, Topic 4 appears relevant to the parties' claims and defenses. Defendant argues that Topic 4 “is an inflammatory one included in a subpoena Miller issued to Legacy Bank employee Joshua Brack,” and further notes that the “Court has already quashed that subpoena.” Def.'s Mot. at 10. Although the Court did quash Plaintiff's subpoena to Mr. Brack, its order was premised on the fact that “each document sought by Plaintiff ... belongs to Legacy Bank.” 8/4/2023 Order [Doc. No. 228] at 1. Here, Plaintiff seeks to question Defendant's corporate representative on information that is relevant on its face, and Defendant has not shown that the information is irrelevant or of marginal relevance. See Cardenas, 232 F.R.D. at 382. The Court will allow Plaintiff to question Defendant's corporate representative on Topic 4.
Topic 5 relates to Defendant's “policies and procedures regarding what constitutes a completed loan application regarding the loan in question.” Pl.'s Notice, Ex. 1 at 5-6. On its face, Topic 5 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 5.
Topic 6 relates to “a conversation that occurred on June 24, 2022 between Jamie L. Bloyd and Marquise Miller.” Pl.'s Notice, Ex. 1 at 6. On its face, Topic 6 appears irrelevant to the parties' claims and defenses, and Plaintiff fails to show its relevance. See Cardenas, 232 F.R.D. at 382-83. Further, the Notice does not “describe with reasonable particularity the matters for examination.” FED. R. CIV. P. 30(b)(6). Plaintiff is not permitted to question Defendant's corporate representative on Topic 6.
Topic 7 relates to Defendant's “claim that [Defendant] did not place Mr. Miller's personal confidential financial information within the Court Docket.” Pl.'s Notice, Ex. 1 at 6-7. On its face, Topic 7 appears irrelevant to the party's claims and defenses, and Plaintiff fails to show its relevance. See Cardenas, 232 F.R.D. at 382-83. Further, like Topic 1 discussed above, Plaintiff's contentions regarding document production via Dropbox or flash drive have already been addressed by the Court. See, e.g., 11/8/2023 Order [Doc. No. 302]. Plaintiff is not permitted to question Defendant's corporate representative on Topic 7.
Topic 8 relates to Defendant's “documents from 2012 to present that contain racial epithets and/or racially charged and/or derogatory language toward minorities.” Pl.'s Notice, Ex. 1 at 7-8. In a case alleging racial discrimination, the Court cannot, at this time, find that Topic 8 is wholly irrelevant to the party's claims and defenses. However, Topic 8 does appear overbroad, especially considering that Plaintiff has made no claim in this case that he was subjected to “racial epithets and/or racially charged and/or derogatory language.” Further, the Notice does not “describe with reasonable particularity the matters for examination.” FED. R. CIV. P. 30(b)(6). Plaintiff is permitted to question Defendant's corporate representative on Topic 8, so long as the questioning pertains specifically to “racial epithets and/or racially charged and/or derogatory language” made toward, or about, Plaintiff.
*5 Topic 9 relates to Defendant's “claim that Legacy offered Mr. Miller the option to secure the loan with a portion or all of the cash he held at Legacy Bank.” Id. at 8-9. On its face, Topic 9 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 9.
Topic 10 relates to “a document that Legacy Bank presents to the Court that indicates that the Lottie Property and its surrounding area had millions of dollars of investment marked for development which was known to the public on January 13, 2015.” Pl.'s Notice, Ex. 1 at 9-12 (emphasis in original). On its face, Topic 10 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 10.
Topic 11 relates to the Community Reinvestment Act and “in what ways ... Legacy Bank fulfilled the goals” of the Act. Pl.'s Notice, Ex. 1 at 12. On its face, Topic 11 appears only partially relevant to the parties' claims and defenses. Plaintiff will be permitted to question Defendant's corporate representative on the Community Reinvestment Act, so long as the questioning pertains specifically to Defendant. However, Plaintiff will not be permitted to ask questions regarding “why Congress enacted” the Act, which would force Defendant's corporate representative to speculate as to Congressional intent.
Topic 12 relates to “the written conclusions made by the Oklahoma State Banking Department regarding their investigation.” Id. at 12-14. On its face, Topic 12 appears relevant to the parties' claims and defenses. Plaintiff will be permitted to question Defendant's corporate representative on Topic 12, so long as the questioning pertains specifically to Defendant and Defendant's understanding of the OSBD's investigation and conclusion. However, Plaintiff will not be permitted to ask questions regarding the OSBD's reasoning or process behind its investigation or conclusion, which would force Defendant's corporate representative to speculate as to the OSBD's intent.
Topic 13 relates to “the sources that Legacy relies and relied upon to evaluate vacancy, abandonment, and/or crime rates.” Id. at 14. On its face, Topic 13 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 13.
Topic 14 relates to whether “Legacy denies that the Lottie Property ‘location’ was comprised of predominantly African Americans.” Pl.'s Notice, Ex. 1 at 14-15. On its face, Topic 14 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 14.
Topic 15 relates to whether “Legacy denies that they gave loan(s) to residences that had more police involvement than the Lottie Property.” Pl.'s Notice, Ex. 1 at 15. On its face, Topic 15 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 15.
*6 Topic 16 relates to whether “Legacy denies or admits that Legacy gave loans to zip code 73110.” Pl.'s Notice, Ex. 1 at 15. On its face, Topic 16 appears relevant to the parties' claims and defenses, and Defendant has not lodged a specific objection. See Cardenas, 232 F.R.D. at 382. Plaintiff is permitted to question Defendant's corporate representative on Topic 16.
IV. Plaintiff's deposition and Defendant's corporate representative deposition shall occur in Magistrate Judge Suzanne Mitchell's courtroom, chambers, or designated conference room.
Defendant argues that, “[g]iven his history, it is extraordinarily unlikely that Miller will abide by [the Federal Rules of Civil Procedure] in any deposition taken outside the presence of the Court, even if the Court were to warn him in advance.” Def.'s Mot. at 12. Therefore, Defendant requests that Plaintiff's and Defendant's corporate representative depositions be taken in the presence of the Court.
In response, Plaintiff argues that Defendant's request “must be denied because the Federal Rules of Civil Procedure do not mandate this request and it certainly does not rid the appearance of bias.” Pl.'s Resp. at 15.
After careful consideration of the parties' positions, the Court finds that Plaintiff and Defendant's corporate representative(s) shall be deposed under the supervision of Magistrate Judge Suzanne Mitchell. The parties are to use the process set forth in the Court's prior Order [Doc. No. 226] to communicate with Judge Mitchell and her staff in coordinating dates and times for the two depositions to occur.
The Court wishes to make one point abundantly clear: Although the depositions will occur under judicial supervision, the Court advises the parties that the Federal Rules of Civil Procedure, along with all other applicable rules, govern the depositions and the parties' actions. Judge Mitchell will be available during the depositions should a legitimate dispute arise, but the parties are not to burden Judge Mitchell or her staff with frivolous issues or arguments. Either party's failure to participate in the depositions in good-faith, or to otherwise abide by this Order, may result in sanctions.
For these reasons, Defendant's Motion for Protective Order on Plaintiff's Subpoenas and Notices to Take Legacy Bank 30(b)(6) Deposition [Doc. No. 280] is GRANTED IN PART and DENIED IN PART, as more fully set forth herein.
Further, nothing in this Order shall limit either party's ability to lodge specific, contemporaneous objections during the depositions.
The parties shall bear their own costs and fees in connection with this Motion.
IT IS SO ORDERED this 30th day of November, 2023.