Summary
In Cotracom, Magistrate Judge Rushfelt ruled that extraordinary circumstances justified precluding the depositions of two outside members of the board of directors and the general manager of plaintiff corporation.
Summary of this case from Pepsi-Cola Bottling Company of Pittsburgh, Inc. v. PepsicoOpinion
Civil Action No. 97-2391-GTV
Filed: June 14, 2000.
Stephen M Sacks and John C Massaro, Arnold Porter Washington, DC; Patrick J. Stueve, Berkowitz, Feldmiller, Stanton, Brandt, Williams Stueve, LLP, Kansas City, MO; and Roger D. Stanton, Berkowitz, Feldmiller, Stanton, Brandt, Williams Stueve, LLP, Prairie Village, KS for COTRACOM COMMODITY TRADING AG and BENDEL FEED AND FLOUR MILL, LTD.
J. Eugene Balloun, William R. Sampson and Paul W. Rebein, Shook, Hardy Bacon L.L.P. Overland Park, KS for SEABOARD CORPORATION and SEABOARD TRADING SHIPPING, LTD. and SASCO ENGINEERING CO, Seaboard Sales Corp., a foreign Corporation.
Mark A. Stites, Bioff, Singer Finucane, Kansas City, MO; Stephen M Sacks, John C Massaro, Arnold Porter, Washington, DC; and Roger D. Stanton, Berkowitz, Feldmiller, Stanton, Brandt, Williams Stueve, LLP, Prairie Village, KS for INDUSTRIE BAU NORD AG, IBN ENGINEERING GMBH and IBN AGROTRADING AG.
MEMORANDUM AND ORDER
The Court has under consideration Plaintiffs' Motion for Protective Order (doc. 258) and Defendants' Motion to Extend Discovery Deadline (doc. 283). Pursuant to Fed.R.Civ.P. 26, plaintiffs seek an order to prohibit three depositions noticed by defendants. They request that the Court limit further discovery to written interrogatories. Defendants oppose the motion. By their motion they seek to extend the discovery deadline to forty-five days after the Court rules on the motion for protective order. Plaintiff has no objection to extending the deadline for discovery already propounded that is within the confines of limitations imposed by the Court at the pretrial conference held November 10, 1999. It otherwise opposes the motion.
At the aforementioned pretrial conference the Court extended the discovery deadline "through February 10, 2000, for Defendants to pursue discovery . . . as to the following matters . . . No. 1 will be `loss of business, alleged as part of Plaintiffs' damages,' and 2, `losses incurred from the Patchara Naree, Tolgam and Argus wheat shipments." (Tr. of Audiotapes from Pretrial Conference [hereinafter Tr.] at 121, attached as Ex. 2 to Pls.' Mem. Supp. of Mot. Prot. Order, doc. 259 [hereinafter Mem. Supp.].) The Court specifically declined to "put any limit on the nature of discovery." ( Id. at 116.) It felt it would be unfair to artificially limit discovery on the information then before it. ( Id. at 117.) For the same reason it declined to limit the location of any future deposition. ( Id. at 118-20.)
Plaintiffs claim that defendant Seaboard Corporation (Seaboard) has already conducted extensive discovery on the two matters, for which the Court granted extension. They contend the depositions are burdensome, untimely, unnecessary, and far beyond the limited scope of discovery discussed at the pretrial conference. They object to the method and volume of discovery, the persons selected for deposition, and the location of the depositions. They suggest that defendants seek the depositions only for purposes of harassment and to facilitate settlement. They also suggest that the Court has a "special duty," furthermore, to monitor and regulate discovery propounded to foreign parties.
Plaintiffs object to the persons selected for deposition on various grounds. They claim to have identified none of them as witnesses on the issue of damages C the only remaining issue proper for discovery. Two of the individuals are outside members of the Board of Directors of plaintiff Bendel Feed and Flour Mill, Ltd. (Bendel). Plaintiffs claim these two men have no responsibility for the day-to-day operations of Bendel and have no knowledge of the limited issues left for discovery. Plaintiffs offer to provide affidavits about the lack of knowledge. In their reply brief they agree to answer interrogatories or requests for admission relating to the lack of knowledge. They also express a willingness to stipulate to the lack of knowledge. They suggest that, if Seaboard truly wanted to conduct legitimate discovery, it would have noticed a deposition on the limited matters left for discovery pursuant to Fed.R.Civ.P. 30(b)(6). As for the third individual, Thadeus Ogboghodo, plaintiffs claim they have not identified him as a trial witness on the matters available for discovery. They suggest that, in view of the other matters argued in their motion, his deposition is unnecessary, irrelevant, and unduly burdensome.
Defendants claim they seek to depose individuals with information relevant to this case. They suggest the depositions are necessary, notwithstanding other discovery. They assert that Mr. Ogboghodo is General Manager of Bendel with responsibility for its day-to-day activities. They submit that he has sworn in a related proceeding that he has knowledge of the facts surrounding the current dispute between the parties. Defendants speculate that his absence as a listed witness on the issue of damages might mean that his testimony is unfavorable to plaintiffs. They contend they reasonably noticed the three depositions in the United States. They submit that it would be dangerous to travel to Nigeria where the deponents reside.
"The [United States Supreme] Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing litigants in civil trials." Herbert v. Lando, 441 U.S. 153, 176 (1979). To accomplish that purpose, the Federal Rules of Civil Procedure provide that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1). Courts broadly construe relevancy at the discovery stage. Caldwell v. Life Ins. Co. of N. Am., 165 F.R.D. 633, 638 (D.Kan. 1996). "[A] request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action." Id. (quoting Smith v. MCI Telecomms. Corp., 137 F.R.D. 25, 27 (D.Kan. 1991)).
Discovery provisions are also "subject to the injunction of Rule 1 that they `be construed to secure the just, speedy, and inexpensive determination of every action.'" Lando, 441 U.S. at 176. In addition, "[u]pon motion by a party . . . and for good cause shown, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). Although the rules contemplate discovery as a nearly unencumbered search for the truth, courts also recognize it as an intrusive fact-gathering tool that is subject to abuse. Courts, therefore, "balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled." Frank v. County of Hudson, 924 F. Supp. 620, 623 (D.N.J. 1996) (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)); see also, Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1368 (10th Cir. 1997) (holding that "the desire to afford `broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant'")
Whether to enter a protective order is within the sound discretion of the court. Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995). A party may request a protective order to completely preclude inquiry into matters that are outside the scope of appropriate discovery. Caldwell, 165 F.R.D. at 637. Courts, nevertheless, disfavor barring a deposition. Leighr v. Beverly Enterprises-Kansas Inc., 164 F.R.D. 550, 552 (D.Kan. 1996). Absent extraordinary circumstances, "[t]hey rarely grant a protective order which totally prohibits a deposition." Mike v. Dymon, Inc., 169 F.R.D. 376, 378 (D.Kan. 1996); see also, Simmons Foods, Inc. v. Willis, 191 F.R.D. 625, 630 (D.Kan. 2000). The party seeking a protective order, furthermore, has the burden to show good cause for a protective order. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996). To establish good cause, that party must submit "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
In this instance the Court finds the requisite extraordinary circumstances to prohibit the depositions noticed by defendants. Except for the limited discovery granted at the pretrial conference, discovery closed July 29, 1999. Defendants conducted extensive discovery before discovery closed. Upon its re-opening, furthermore, they served an additional interrogatory and three requests for production upon each plaintiff. They also noticed depositions in Washington D.C. for three foreign witnesses. Citing Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa, 482 U.S. 522 (1987), plaintiffs provide solid authority for exercising greater control over discovery directed to foreign litigants. Defendants fail to address the repercussions of that case. They also fail to deny a suggestion that they seek the depositions only for purposes of harassment and to motivate settlement. The Court finds good cause to prohibit the depositions.
Defendants indicate that, if a proposed deponent lacks knowledge of the matters sought to be discovered, they want to present such lack of knowledge to the jury in admissible form. They need not depose the witnesses, however, to secure such admissible evidence. Plaintiffs have presented reasonable alternatives to such depositions. Although parties generally have the right to choose the method and order of discovery, the Court may impose necessary restrictions to facilitate the just, speedy, and inexpensive determination of the action. At this late date, it appears unreasonable to permit international depositions of individuals who profess no knowledge of the limited matters subject to discovery. Defendants can obtain sufficient discovery through written interrogatories or requests for admission. The Court recognizes the general rule that "a party seeking discovery may test an asserted lack of knowledge." See Horsewood v. Kids "R" Us, No. Civ.A. 97-2441-GTV, 1998 WL 526589, at *6 (D.Kan. Aug. 13, 1998). The rule, however, is not absolute. The circumstances here justify precluding the depositions of the two members of the Board of Directors of Bendel.
The deposition of Mr. Ogboghodo presents a more difficult question. He undoubtedly has relevant knowledge of matters subject to the limited discovery permitted by the Court at the pretrial conference. Defendants have known of such knowledge, however, since receiving an affidavit signed by the witness on April 15, 1999. ( See Aff. in Supp., attached as Ex. 5 to Defs.' Resp. to Pls.' Mot. Prot. Order, doc. 262.) Other than suggesting they did not know plaintiffs were asserting damage claims regarding certain contracts for the purchase of wheat or regarding lost profits, defendants present no reason why they could not have deposed Mr. Ogboghodo before discovery ended in July 1999. The Complaint of plaintiffs, furthermore, is broad enough to encompass such claims. (Tr. at 47.) Defendants knew or should have known of the claims. In view of all the circumstances of this case, it appears appropriate to preclude the oral deposition of Mr. Ogboghodo.
Plaintiffs have consented to the granting of leave to defendants to serve the written discovery already propounded. (Mem. Supp. at 8 n. 3.) Accordingly, the Court, pursuant to D.Kan. Rule 33.1, grants defendants leave to serve that discovery. They want further discovery limited to written interrogatories. They have shown no good cause for such a restriction. The Court grants defendants leave to serve written interrogatories or requests for admission consistent with this opinion and the limitations on discovery set at the pretrial conference of November 10, 1999. Considering the relevance of information possessed by Mr. Ogboghodo, it also grants defendants leave to depose him upon written questions in accordance with Fed.R.Civ.P. 31.
All interrogatories or requests for admission propounded shall be served in time for responses to be given within forty-five days of the date of this Order. If defendants pursue a deposition upon written questions they shall commence it within that same time period. The Court finds good cause to extend the discovery deadline for forty-five days from the date of this Order.
For the foregoing reasons, the Court sustains in part and overrules in part Plaintiffs' Motion for Protective Order (doc. 258) and sustains Defendants' Motion to Extend Discovery Deadline (doc. 283). On its own motion, it grants defendants leave to serve discovery as set forth herein. Each party shall be responsible for its own costs and expenses incurred on the motions and subsequent briefing.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 14th day of 2000.
Gerald L. Rushfelt United States Magistrate Judge