United States District Court, S.D. Alabama, Northern Division
VIVIAN M. JONES, Plaintiff,
v.
LEE PAYSSA, et al., Defendants.
MEMORANDUM OPINION & ORDER
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
On
February 26, 2019, the Court endorsed granted the second
motion for a protective order under Federal Rule of Civil
Procedure 26(c) (Doc. 60) filed by Globe Specialty Metal,
Inc. a/k/a Ferroglobe/Globe Metallurgic, Inc. and Ferroglobe
Metallurgic, Inc. (collectively, “Ferroglobe”),
with a notation that a written decision was to follow as soon
as was practicable. (See Doc. 61).[1] The Court will
herein explain its reasoning in granting the
motion.[2]
Under
Federal Rule of Civil Procedure 30(b)(1), the Plaintiff
noticed the deposition of Stephen Smith for February 27,
2019, beginning either at 1:00 p.m. or immediately after
another deposition concluded. (See Doc. 60-1). Said
notice also requested that Smith produce at the deposition
copies of the personnel files of certain employees and former
employees of Ferroglobe. Ferroglobe objects to the document
production request, as well as any attempt by the Plaintiff
to treat Smith as Ferroglobe's Rule 30(b)(6)
representative.
Under
Federal Rule of Civil Procedure 30(b)(6), “[i]n [a
deposition] notice or subpoena, a party may name as the
deponent a public or private corporation, a partnership, an
association, a governmental agency, or other entity and must
describe with reasonable particularity the matters for
examination. The named organization must then designate one
or more officers, directors, or managing agents, or designate
other persons who consent to testify on its behalf; and it
may set out the matters on which each person designated will
testify.” Fed.R.Civ.P. 30(b)(6). Ferroglobe represents
that the Plaintiff “has not served a 30(b)(6)
deposition notice” (Doc. 60), and nothing in the record
contradicts that statement. While the Plaintiff claims that
Rule 30(b)(6) “is not our situation” and that
“[t]here is no need to designate a company
representative” (Doc. 58 at 2 - 3), the notice of
deposition expressly references Rule 30(b)(6) in its opening
paragraph and demands that Smith produce documents that
belong to Ferroglobe. Under the plain terms of Rule 30(b)(6),
the ability to designate its testifying representatives rests
with Ferroglobe, not with the Plaintiff. Thus, to the extent
the Plaintiff's notice attempted to make the designation
for Ferroglobe, the Plaintiff's action was improper, and
Smith is not to be treated as a Rule 30(b)(6) representative
for Ferroglobe at the scheduled deposition.
Under
Federal Rule of Civil Procedure 30(b)(2), a “notice to
a party deponent may be accompanied by a request under Rule
34 to produce documents and tangible things at the
deposition.”[3] Under both Rule 34 and the Court's
scheduling order (Doc. 32, as modified by Doc. 44), a party
that is served with a Rule 34 request for production is
allowed 30 days after service to respond.[4] The deposition
notice for Smith is postmarked as mailed February 19, 2019.
(See Doc. 60-1 at 3). Therefore, requiring Smith to
produce documents at the deposition noticed for February 27
does not give Smith the full time to which he is entitled to
respond to the Plaintiff's request for production in the
deposition notice.[5] Accordingly, Smith is not required to
produce any of the documents requested in the deposition
notice at the February 27 deposition.[6]
For the
foregoing reasons, the Court granted Ferroglobe's second
motion for a protective order (Doc. 60). (See Doc.
61). Because the motion was granted, “the court must,
after giving an opportunity to be heard, require the party or
deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the
movant's reasonable expenses incurred in making the
motion, including attorney's fees[, ]” unless the
Court finds “(i) the movant filed the motion before
attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party's
nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of
expenses unjust.” Fed.R.Civ.P. 37(a)(5)(A). See
also Fed. R. Civ. P. 26(c)(3) (“Rule 37(a)(5)
applies to the award of expenses” for motions for
protective orders). Upon consideration, Ferroglobe must file
and serve a motion for such an award, containing any evidence
and argument Ferroglobe deems necessary to show both the
amount and reasonableness of the expenses requested, and
entitlement thereto, no later than Wednesday,
March 13, 2019. Ferroglobe's failure to
timely file such a motion will be deemed a waiver any
entitlement to an award under Rule 37(a)(5) in connection
with the present matter. If such a motion is timely filed,
the Court will set a briefing schedule in due course to give
the Plaintiff and/or her counsel an opportunity to be heard
on the motion.
DONE
and ORDER.
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Notes:
[1] The assigned District Judge referred
the motion to the undersigned Magistrate Judge for
appropriate action under 28 U.S.C. § 636(a)-(b), Federal
Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a).
See S.D. Ala. GenLR 72(b); (2/26/2019 electronic
reference).
[2] The Court denied Ferroglobe's
prior motion for a protective order without prejudice due to
its failure to include a good-faith conferencing
certification required by Rule 26(c)(1) and the Court's
scheduling order. (See Docs. 57, 59).
Ferroglobe's present motion contains a sufficient
good-faith conferencing certification in paragraph 1.
[3] Smith was named as a defendant in this
action but was later dismissed under Federal Rule of Civil
Procedure 12(b)(6). (See Doc. 24). Nevertheless,
Ferroglobe's motion continues to treat Smith as a
“party deponent” (see Doc. 60 at 5). The
undersigned assumes, without deciding, that this position is
correct for purposes of the present motion. Even if Smith
should be considered a non-party deponent, the result on the
present motion would not change. Under Rule 30(b)(2), a
subpoena duces tecum is required to compel non-party
deponents to produce documents at a deposition. No. such
subpoena was issued against Smith.
[4] While a “shorter…time may
be stipulated to under Rule 29 or be ordered by the court[,
]” Fed.R.Civ.P. 34(b)(2)(A), neither of these has
occurred.
[5] Moreover, the request for production
included in the deposition notice appears duplicative of a
request of production served on Ferroglobe on February 15,
2019. (See Doc. 60-4). The time for Ferroglobe to
respond to that request will also ...