Cropper v. Wal-Mart Stores, Inc.

Opinion

8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10

11 ANN CROPPER, Case No.: 2:19-cv-00629-JCM-NJK 12 Plaintiff(s), Order 13 v. [Docket Nos. 31, 32] 14 WAL-MART STORES, INC., 15 Defendant(s). 16 Pending before the Court is Defendant’s motion for protective order. Docket No. 31. 17 Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 34, 35. The 18 motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed 19 below, the motion for protective order is DENIED.1 20 “A party who wants to depose a person by oral questions must give reasonable written 21 notice to every other party.” Fed. R. Civ. P. 30(b)(1). What constitutes “reasonable” notice is 22 determined based on the circumstances of each case, taking into account factors such as the need 23 for preparation before the deposition. See, e.g., Paul v. Winco Holdings, Inc., 249 F.R.D. 643, 656 24 (D. Id. 2008) (citing in re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005)). In 25 general, the party seeking to avoid discovery bears the burden of persuasion. Blankenship v. 26 27 1 Defendant also filed a motion for relief from the dispositive motion deadline, Docket No. 28 32, which is DENIED as moot in light of the ruling made herein. 1 Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). More particularly, a party will be permitted to 2 avoid a deposition in its entirety only upon making a “strong showing.” Id. 3 This case presents a close question. The subject deposition notice appears on its face to be 4 untimely. On Friday, April 24, 2020, Plaintiff served a notice for a Rule 30(b)(6) deposition to be 5 conducted for Monday, May 4, 2020. Docket No. 31-3 at 10. Hence, the deposition notice 6 provided five business days’ notice. Moreover, Plaintiff seeks testimony from an appropriate 7 corporate representative on 28 topics. Especially given the preparation necessary for such a 8 corporate deposition, e.g., Great Am. Ins. Co. of N.Y. v. Vegas Constr. Co., 251 F.R.D. 534, 539 9 (D. Nev. 2008), the notice that Plaintiff provided does not appear to be reasonable. 10 On the other hand, counsel and their staff were coordinating deposition scheduling during 11 this period given the upcoming discovery cutoff and complications arising from the COVID-19 12 pandemic. On April 14, 2020, a staff-person for defense counsel specifically offered May 4, 2020, 13 as a date for the Rule 30(b)(6) deposition in question. Docket No. 34-10 at 1. This Court has long 14 prioritized common-sense cooperation in scheduling depositions, see, e.g., Olesczuk v. Citizens 15 One Home Loans, 2016 U.S. Dist. Lexis 153342, at *5-6 (D. Nev. Nov. 4, 2016), which is what 16 appears to have been happening here in the background. The exact contours of the deposition 17 topics may have been somewhat murky as of April 14, 2020, and a compelling reason has not been 18 advanced why the written notice was not served for another 10 days. Nonetheless, it seems unduly 19 harsh to disallow a deposition in its entirety in the circumstances of this case when that deposition 20 was set on the date that had been volunteered to accommodate competing scheduling demands 21 during the COVID-19 pandemic.2 Moreover, at this stage, Defendant has now had additional time 22 to prepare for the deposition in question given the pendency of the instant motion practice and the 23 previous order vacating the deposition as set. 24 In the interest of having this case decided on its merits and in the interest of justice, the 25 best course is for the Rule 30(b)(6) deposition to take place. The parties must meet and confer on 26 2 The Court is also leery of completely prohibiting a deposition when defense counsel 27 appears to have refused to engage in a rule-compliant meet and confer on this dispute. See Docket No. 34-13 at 2; Docket No. 34-14 at 1; see also Local Rule IA 1-3(f) (making clear that a proper 28 meet and confer requires an in-person, telephonic, or video conference). 1} a new deposition date, which must occur before June 15, 2020.2 The dispositive motion deadline 2|| is extended to July 15, 2020, and the joint proposed pretrial order is extended to August 14, 2020 (or 30 days after resolution of dispositive motions). GIVEN THE PREVIOUS EXTENSIONS 4| IN THIS CASE, THESE DEADLINES ARE FIRM. 5 For the reasons stated above, the motion for protective order is DENIED. 6 IT IS SO ORDERED. 7 Dated: May 13, 2020 , Nancy J. Koppe 9 United States“Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Discovery remains closed except with respect to this deposition.