Wieland v. Board of Regents of the Nevada System of Higher Education

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ALICE WIELAND, Case No. 3:19-cv-00724-MMD-CLB

7 Plaintiff, ORDER v. 8 BOARD OF REGENTS OF THE 9 NEVADA SYSTEM OF HIGHER EDUCATION, a political subdivision of the 10 State of Nevada,

11 Defendant.

12 13 I. SUMMARY 14 This is an employment discrimination and breach of contract case involving Plaintiff 15 Alice Wieland’s denial of tenure. Plaintiff brings this action against the Board of Regents 16 of the Nevada System of Higher Education. After protracted disputes about Plaintiff’s 17 proposed Rule 30(b)(6) deposition notice, Defendant filed a motion for protective order 18 (“Motion”).1 (ECF No. 74.) United States Magistrate Judge Carla L. Baldwin granted the 19 Motion and ordered Plaintiff to serve a narrowed notice. (ECF No. 79 (“Order”).) Before 20 the Court is Plaintiff’s objection (ECF No. 80 (“Objection”)) to Judge Baldwin’s Order 21 granting Defendant’s Motion.2 22 II. BACKGROUND 23 Plaintiff was employed as an assistant professor in the College of Business at the 24 University of Nevada, Reno, from July 2012 until June 30, 2019. (ECF No. 1 at 3.) After 25 26 1Plaintiff responded (ECF No. 77) and Defendant replied (ECF No. 78). 27 2Defendant responded. (ECF No. 82.) Plaintiff filed a reply (ECF No. 83), when a 28 party objects to a matter finally determinable by a magistrate judge, replies are permitted “only with leave of the court.” LR IB 3-1(a). Accordingly, the Court will strike Plaintiff’s 2 state law breach of contract. (ECF No. 1.) 3 At issue presently is Plaintiff’s deposition notice of Defendant’s designated Rule 4 30(b)(6) witness. After numerous attempts to meet and confer, Plaintiff proposed the 5 current Third Amended Re-Notice. (ECF No. 81-1 (“Notice”).) The Notice designated 63 6 topics that a designated witness be prepared to answer. (Id.) Defendant filed its motion 7 for protective order. (ECF No. 74.) Defendant notes that despite having taken nine 8 depositions from individuals who had recommended denying Plaintiff tenure and serving 9 extensive overlapping requests for production of documents and interrogatories, Plaintiff 10 seeks to use the Rule 30(b)(6) deposition to cover almost every aspect of the litigation. 11 (Id. at 4.) 12 Defendant argues the Notice is excessive, claiming “[t]he shear [sic] amount of 13 noticed subject matters makes preparation of a witness exceedingly difficult, if not 14 impossible.” (Id. at 7.) Explaining its position, Defendant selects several topics to 15 demonstrate that much of the information in the Notice is either not in dispute or 16 adequately covered by other discovery tools. (Id. at 7-10.) 17 III. LEGAL STANDARD 18 District court judges may reconsider any non-dispositive matter finally determined 19 by a magistrate judge “when it has been shown that the magistrate judge’s order is clearly 20 erroneous or contrary to law.” LR IB 3-1(a). “This standard of review ‘is significantly 21 deferential’ to a magistrate judge’s determination.” Ashcraft v. Welk Resort Grp., Corp., 22 Case No. 2:16-cv-02978-JAD-NJK, 2021 WL 3017512, at *1 (D. Nev. Mar. 24, 2021) 23 (quoting Concrete Pipe and Prods. Of Cal., Inc. v. Constr. Laborers Pension Tr. For S. 24 Cal., 508 U.S. 602, 623 (1993)). Only when the district court has “a definite or firm 25 conviction that a mistake [has] been made,” Concrete Pipe, 508 U.S. at 626, “or a relevant 26 statute, law, or rule has been omitted or misapplied,” Ashcraft, 2021 WL 3017512 at *1. 27 /// 28 /// 2 Plaintiff argues the Order is clearly erroneous for five reasons: (1) the Court 3 disregarded Defendant’s burden to demonstrate a particular need for protection; (2) the 4 Court improperly restricted the subject matter of a Rule 30(b)(6) deposition; (3) the Court 5 misstated the Defendant’s obligation to provide knowledgeable Rule 30(b)(6) deponents; 6 (4) the Court failed to explain which topics in particular were overbroad, overly 7 burdensome, oppressive, or improper; and (5) the Court mischaracterized the proper 8 scope of discovery in this case. (ECF No. 80 at 3-8.) Despite these arguments, Plaintiff 9 has not shown that Judge Baldwin clearly erred. Accordingly, the Court will overrule the 10 Objection. 11 “The purpose of a Rule 30(b)(6) deposition is to streamline the discovery process.” 12 Risinger v. SOC, LLC, 306 F.R.D. 655, 662 (D. Nev. 2015). Conversely, “the purpose 13 served by [Rule] 30(b)(6)—to require an organization to identify and designate a witness 14 who is knowledgeable on the noticed topic, particularly where the noticing party is unable 15 to itself identify an appropriate witness because that knowledge lies within the 16 organization—does not extend to burdening the responding party with production and 17 preparation of a witness on every facet of the litigation.” Apple Inc. v. Samsung Elecs. 18 Co., Ltd., Case No. C 11-1846 LHK (PSG), 2012 WL 1511901, at *2 (N.D. Cal. Jan. 27, 19 2012). “Courts ‘have not hesitated to issue protective orders when corporations are asked 20 to respond to overly broad or unfocused Rule 30(b)(6) deposition notices.’” Reno v. W. 21 Cab Co., Case No. 2:18-cv-00840-APG-NJK, 2020 WL 5902318, at *2 (D. Nev. Aug. 31, 22 2020) (citation omitted). Moreover, “broad discretion is vested in the trial court to permit 23 or deny discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 24 Judge Baldwin properly determined that the topics presently covered in the Notice 25 are too broad and unfocused. Some topics are narrowly tailored and would readily inform 26 Defendant about the information the deponent would need to provide, such as Topic 62 27 (“The identities including demographic information such as sex, age, race, and national 28 origin of all persons in the UNR College of Business who were granted tenure between 2 Business related to information shared with the external reviewers about teaching loads 3 for tenure applicants”). (ECF No. 81-1 at 13, 4.) Others, including the objected-to topics, 4 are unwieldy, anticipating that the deponent come prepared to discuss “all facts and 5 documents regarding Plaintiff’s contentions” at three paragraphs of the Complaint, “all 6 facts and documents upon which [Defendant] base[s] [its] denial” of 12 paragraphs of the 7 Complaint and “all facts and documents upon which [Defendant] base[s] [its]” defenses 8 in 10 paragraphs of Defendant’s answer. (Id. at 5-13.) In review, Judge Baldwin noted 9 that, “[r]ather than targeting those issues in which Rule 30(b)(6) testimony is truly needed, 10 the deposition notice appears to have been drafted to cover nearly every conceivable 11 facet of this litigation.” (ECF No. 79 at 4.) 12 The Court will address each of Plaintiff’s alleged notices of error in turn. 13 A. Defendant’s Burden 14 Plaintiff argues in its first alleged notice of error that Defendants had not alleged 15 specific burdens in the Motion, despite being so required. It is true that the party seeking 16 a protective order bears the burden of demonstrating “annoyance embarrassment, 17 oppression, or undue burden or expense.” Fed R. Civ. P. 26(c)(1); Matthys v. Barrick Gold 18 of N. Am., Inc., Case No. 3:20-CV-00034-LRH-CLB, 2021 WL 3604834, at *1 (D. Nev. 19 Aug. 13, 2021) (“The party seeking issuance of a protective order bears the burden of 20 persuasion.”). But because Defendant did articulate specific burdens, which Judge 21 Baldwin acknowledged, her ruling was not clearly erroneous. Defendant outlined in some 22 detail in its Motion why certain topics would be unduly burdensome, including that to 23 adequately prepare a witness for the deposition, they would need to review over 200 24 tenure applications that are not at issue in this case. (ECF No. 74 at 9.) Defendant further 25 argues more generally that compliance with the Notice would be next to impossible, 26 leading to an unavoidable sanctions motion for failing to adequately prepare the witness. 27 (Id.) Defendant’s argument goes beyond “not want[ing]” to prepare for the deposition, as 28 Plaintiff suggests (ECF No. 83 at 2), and states instead that they would be unable to 2 Baldwin agreed that a deposition on the present topics would produce not only time and 3 expense, but unreasonable time and expense. To cure this defect, Judge Baldwin ordered 4 Plaintiff to serve a more focused deposition notice. Her finding is not clearly erroneous, 5 as it lies within the Court’s discretion to prevent unrestricted discovery that will exceed 6 the needs of the case. 7 B. Restricted Subject Matter 8 Contrary to Plaintiff’s assertion in the second noticed error, Judge Baldwin did not 9 hold that an organization’s perspective on facts in the Complaint or its pleaded defenses 10 are not discoverable via a 30(b)(6) deposition. (ECF No. 80 at 4.) Instead, Judge Baldwin 11 reasoned that the topics were unfocused and insufficiently targeted for the purposes of a 12 deposition in which the Defendant will have to prepare a witness based on information 13 beyond their own personal knowledge. (ECF No. 79 at 4.) At no time did Judge Baldwin 14 find or hold that any topic in the Notice was not relevant, only that as drafted, the Notice 15 imposes a burdensome task that is disproportionate to the needs of the case. (Id.) Indeed, 16 she expressly noted that while topics may include relevant information, “courts have 17 limited discovery where the breadth of subjects and number of topics identified . . . renders 18 a responding party’s efforts to designate a knowledgeable person unworkable.” (Id. 19 (quoting Reno, 2020 WL 5902318 at *2).) Because the Court has the authority to restrict 20 relevant topics for a 30(b)(6) deponent based on practical limitations, Judge Baldwin did 21 not clearly err. 22 C. Defendant’s Obligation to Provide a Knowledgeable Witness 23 Plaintiff’s third alleged noticed error that Judge Baldwin misstates the requirements 24 of a 30(b)(6) witness is likewise without merit. In the Order, Judge Baldwin cites to United 25 States v. HVI Cat Canyon, Inc., for the proposition that “[i]t is simply impractical to expect 26 a Rule 30(b)(6) witness to know the intimate details of everything.” Case No. CV 11-5097 27 FMO (SSx), 2016 WL 11683593, at *8 (C.D. Cal. Oct. 26, 2016). Contrary to Plaintiff’s 28 assertion, neither Judge Baldwin nor the HVI Cat Canyon court are referring to “the 2 expense, and effort that will be required to prepare that witness for testimony. See HVI 3 Cat Canyon, 2016 WL 11683593 at *8 (citing RM Dean Farms v. Helena Chem. Co., Case 4 No. 2:11CV00105 JLH, 2012 WL 169889, at *1 (E.D. Ark. Jan. 19, 2012) (reasoning that 5 protective orders are appropriate where designated witnesses would need “to testify on 6 topics so vast in number, so vast in scope, so open ended, and so vague that compliance 7 with the notice would be impossible”)). Indeed, Judge Baldwin goes on to explain that 8 despite topics’ relevance, if they are too numerous or broad, they may be “unworkable,” 9 clearly addressing the burden of the Notice, not the expectation that a witness will have 10 personal knowledge of all its contents. (ECF No. 79 at 4 (quoting Reno, 2020 WL 5902318 11 at *2).) Because the Court has discretion to limit the scope of noticed topics to conform 12 with the purpose of a Rule 30(b)(6) deposition, Judge Baldwin did not act contrary to law.3 13 D. Failure to Explain Each Topic’s Deficiency 14 The Court is not required to affirmatively explain which individual topics in the 15 Notice are overbroad or improper. See Reno, 2020 WL 5902318 at *3 n.3 (“In analyzing 16 the excessiveness of Rule 30(b)(6) topics, courts do not generally engage in an item-by- 17 item analysis to allow particular topics and rule out others.”) Judge Baldwin did however 18 note which types of topics were overly broad so that Plaintiff could revise or omit 19 objectionable topics. (ECF No. 79 at 3.) Plaintiff does not provide any authority which 20 suggests the Court must comb through each topic and give a ruling as to why it is 21 overbroad. Indeed, such a standard is contrary to the Ninth Circuit’s guidance that “[t]he 22 discovery process in theory should be cooperative and largely unsupervised by the district 23 court.” Sali v. Corona Reg. Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). By issuing a 24 protective order and directing Plaintiff to serve a narrowed notice, Judge Baldwin did not 25 foreclose topics for the 30(b)(6) deposition, but instead required Plaintiff to consider what 26 information is appropriate for a 30(b)(6) witness’ testimony. 27 3Even if the Court would have found differently on first impression, which it would 28 not, magistrate judges’ orders are not reviewed for abuse of discretion, but for clear error—a higher standard under which Plaintiff has not shown she is entitled to relief. 2 Judge Baldwin further did not err when determining that the Notice contained too 3 many broad topics relative to the complexity of the case. Plaintiff argues in its fifth alleged 4 noticed error that Judge Baldwin mischaracterized the complexity of her case, noting that 5 there are eight separate causes of action. (ECF No. 80 at 7.) But as even Plaintiff herself 6 notes, this is “not a complex anti-trust, patent, or environmental enforcement action”— 7 cases in which technical knowledge or expert explanation may be required, and a 30(b)(6) 8 witness may serve requisite function not achievable through other discovery tools. (ECF 9 No. 80 at 7.) But Plaintiff blurs the potential importance and sensitivity of her case with its 10 relative complexity. As Defendant notes, Plaintiff has already deposed nine individuals 11 with personal knowledge of Plaintiff’s tenure deliberation and recommended denial, and 12 Defendant has produced copious amounts of documentation. (ECF No. 82 at 1-2.) 13 Because this is a case where much of the information is not that which “lies within the 14 organization” but rather a case where the people involved are known and the documents 15 needed to support Plaintiff’s claims are unlikely to be obscure, Judge Baldwin did not err 16 by characterizing this case as comparatively noncomplex. Yet even if she had erred, 17 Judge Baldwin still reasoned that many objectively complex cases with fewer topics have 18 been found unreasonably burdensome. (ECF No. 79 at 4.) Ultimately, this determination 19 rested with Judge Baldwin, and her decision was supported by law. 20 In sum, Plaintiff’s Objection does not show that Judge Baldwin clearly erred in 21 some factual matter or that she applied misapplied or omitted pertinent law. For the 22 above-referenced reasons, the Court finds that Judge Baldwin did not clearly err. 23 Accordingly, Plaintiff’s Objection is overruled. 24 V. CONCLUSION 25 The Court notes that the parties made several arguments and cited to several 26 cases not discussed above. The Court has reviewed these arguments and cases and 27 determines that they do not warrant discussion as they do not affect the outcome of the 28 issues before the Court. 1 It is therefore ordered that Plaintiff's objection (ECF No. 80) to Judge Baldwin’s 2 || order is overruled. 3 It is further ordered that Plaintiffs reply (ECF No. 83) is stricken, as the Court did 4 || not grant Plaintiff leave to file a reply. 5 DATED THIS September 28" Day of September 2021. ALA ; MIRANDA M. DU 8 CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28