Opinion
Case Nos. 98-4226-RDR, 98-4227-RDR, 00-4062-RDR
April 25, 2001
MEMORANDUM AND ORDER
These cases are presently before the court upon the following motions: (1) plaintiffs' petitions for review of magistrate's order dated August 7, 2000.
In connection with this motion, the parties have filed several other motions. Plaintiffs have filed a motion to strike defendant's amended motion to file surreply. The defendant has filed a motion for the court to disregard plaintiffs' response to defendant's surreply. The court has now read both the surreply and the response to the surreply. Little purpose would now be served in granting these motions. Accordingly, the court shall deny both of these motions. The court, however, certainly does not wish to encourage the filing of surreplies and responses to surreplies. In addition, the court warns plaintiffs' counsel that leave to file a response to a surreply is necessary prior to filing such a pleading. In this instance, the court will waive that requirement, but this requirement should be complied with in the future.
(2) plaintiffs' petitions for review of magistrate's order dated August 31, 2000; (3) plaintiffs' petitions for review of magistrate's order dated September 22, 2000; (4) plaintiffs' petitions for review of magistrate's order dated January 24, 2001; and (5) plaintiff Hladky's petition for review of magistrate's order dated January 31, 2001. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
As the court has explained in the past, these cases have long and tortured histories. This is indeed remarkable because the cases are actually quite simple. These cases involve allegations of refusal to hire. Actions containing such allegations are usually among the quickest and easiest in the area of employment discrimination. Discovery is generally simplified. The motions presently under consideration clearly indicate that these cases have not fallen into the quick and simple category. These cases have been beset with problems from the outset. The instant motions suggest that the parties, particularly the plaintiffs, fail to understand how the discovery process should work. The following comments have some application here: "Courts have long understood that the administration of justice will be gravely jeopardized unless the discovery and disclosure systems are largely self-executing. The resources of the courts would be taxed upon endurance if more than a tiny percentage of discovery or disclosure proceedings generated disputes that judges were forced to resolve." 7 Moore's Federal Practice, § 37.23 (3d ed. 2000).
An exhaustive and exhausting review of the record reveals considerable bickering and acrimony between counsel. It is clear that the magistrate has been confronted with unusually contentious counsel, and we commend him on the enormous restraint he has exercised in presiding over these cases. The court hopes that counsel will make every effort in the future to work together to prepare these cases for trial or final disposition.
The court shall now provide some background on these cases. For many years, Dupont, Inc. and Flexel, Inc. operated a cellophane manufacturing plant in Tecumseh, Kansas. In 1996, Flexel closed the plant and terminated all of its employees. UCB Films, Inc. purchased the plant and began seeking employees in 1997. Adecco, an employment agency, acted as agent for UCB in the hiring process by providing administrative testing and employment services. Willard Epling and Paula Hladky are husband and wife. They had previously worked at the Tecumseh plant for a number of years as coating operators. Each applied for the position of coating operator. UCB did not offer a job to either one.
The court's standard of review concerning a magistrate judge's determination of a nondispositive issue is whether the decision has been shown to be "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). The moving party must show that the magistrate's order is "clearly erroneous or contrary to law." Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). The "clearly erroneous" standard requires that the court affirm the decision of the magistrate unless "on the entire evidence [the court] is left with the definite conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); see also Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1462 (10th Cir. 1988).
PLAINTIFFS' PETITION FOR REVIEW OF AUGUST 7, 2000 ORDER
On August 7, 2000, the magistrate issued a fifty-seven page order concerning a number of discovery disputes. Plaintiffs seek review of almost every adverse ruling contained in that order. Some of the objections raised by the plaintiffs concern key issues in the discovery process, i.e., the scope of the discovery of the defendant's employment records, while others refer to very specific and sometimes inconsequential matters.
The court does intend to address the issues raised by the parties, but in the interests of time, the discussions will be limited.
Defendant's Motions for Protective Orders
Plaintiff served a subpoena duces tecum on Shirley Martin-Smith, the owner of Adecco, requesting that she produce nine categories of documents relating to the employment applications of all individuals who applied for employment with UCB from July through December 1997. The defendant sought a protective order under Fed.R.Civ.P. 26(c) to quash the subpoena requests. UCB argued that the documents should not be produced because it had ownership and control over them. Plaintiffs responded that UCB did not have standing to object to a subpoena served on a third party.
The magistrate agreed with the arguments made by the plaintiffs. The magistrate denied the defendant's motions for protective orders. The magistrate, however, failed to address whether plaintiffs were entitled to sanctions. Plaintiffs contend in this motion that the court should now award fees and expenses to them. The defendant suggests that the plaintiffs are not entitled to fees and expenses because its position was "substantially justified."
The court finds that this issue should be remanded to the magistrate for consideration of whether attorney's fees and expenses should be awarded to the plaintiff. The court believes that the magistrate simply overlooked this issue. We believe that the magistrate should have the first opportunity to consider it since he is thoroughly familiar with the background of the motions for protective order.
Plaintiffs' Motions to Compel Responses to Defendant's Objections to Duces Tecum Deposition Subpoenas and Notices
In April and early June 1999, plaintiffs served deposition notices and subpoenas duces tecum on Jim Oldham, Bob Morris, Jeanne Hippe and Larry Montgomery, four management employees of UCB. UCB objected to the document requests contained in the notices/subpoenas on the grounds that they were unintelligible, overbroad, vague, ambiguous, unduly burdensome and irrelevant. UCB also objected to the notice/subpoena served on Montgomery because it did not afford UCB thirty days to respond to the document requests. In response, plaintiffs filed motions to compel the production of the requested documents and sought permission from the court to reopen the four depositions if, and when, such documents were produced. Both parties sought sanctions against the other.
In his order, the magistrate overruled the majority of UCB's objections and ordered the production of documents pertaining to the hiring of coating operators from July 1997 to the present. In addition, the magistrate granted plaintiffs' request to reopen the depositions of Oldham, Morris and Hippe for questioning concerning the forthcoming coating operator documents, but denied the request to reopen Montgomery's deposition. The magistrate denied plaintiffs' request to reopen Montgomery's deposition because they had not provided him with the thirty days necessary to produce documents as required by Fed.R.Civ.P. 30(b)(5) and 34. Finally, the magistrate denied the parties' cross-motions for sanctions.
Plaintiffs contend that the magistrate erred in refusing to reopen Montgomery's deposition and in refusing to award expenses in connection with the filing of the motions to compel. Plaintiffs assert that they should have been allowed to reopen Montgomery's deposition because they would have had the necessary documents if the defendant had produced those documents for the other depositions. They further argue that they did not take contrary positions concerning the scope of their discovery requests. Thus, they contend that they were entitled to fees and expenses in connection with the preparation of responses to defendant's objections to duces tecum subpoenas and the retaking of the depositions of Oldham, Morris and Hippe.
In denying the plaintiffs' requests to reopen Montgomery's deposition, the magistrate ruled as follows:
Plaintiffs did not provide Montgomery with the requisite thirty days to provide the documents. While the Court has ruled that this failure to give the requisite notice relieved Defendant of producing the requested documents at his deposition, Defendant still had the obligation to object and/or produce the documents within the thirty-day time period. Since Defendant did timely serve objections to the Montgomery requests and the Court has overruled those objections, Defendant must still produce the documents (as limited by Plaintiffs to the individuals hired for the Coating Operator positions). The Court does not find, however, that Defendant has the obligation to re-produce Montgomery for his deposition since Defendant had no obligation in the first place to produce the documents at his June 14, 1999 deposition. The Court will therefore deny Plaintiffs' requests to reopen Montgomery's deposition.
In denying sanctions to the plaintiffs, the magistrate noted that the plaintiffs had taken contrary positions as to the scope of information sought, i.e., at the time of depositions, plaintiffs claimed they were requesting information pertaining to all applications for all open positions, while in their reply briefs to the motions to compel, they claimed to have sought information pertaining only to the hiring of coating operators. The magistrate indicated that he would have agreed with the defendant that plaintiffs' requests were overbroad if plaintiffs had continued to insist that they were entitled to all applications for all positions at the plant. The magistrate found in plaintiffs' favor on the motions to compel only because he determined that plaintiffs had narrowed their requests in the reply briefs. In sum, the magistrate found it unjust to impose sanctions against the defendant because of the contrary positions taken by the plaintiffs as to the scope of the document requests.
The court has carefully evaluated the record, the magistrate's order concerning these issues, and the arguments of the parties. The court does not find that the magistrate's decisions were clearly erroneous or contrary to law.
Plaintiffs' Motions to Compel Disclosure and Discovery of Specific Documents
In June 1999, plaintiffs filed motion to compel disclosure and discovery of specific documents. In particular, the motions sought production of a spreadsheet prepared by Gina Berti, former office manager of Adecco, and a "client file" maintained at Adecco's office. Plaintiffs also sought to reopen Berti's deposition if, and when, the court ordered these documents to be produced.
In his order, the magistrate ordered discovery of both the spreadsheet and the "client file" upon the condition that the information in each be limited to plaintiffs' prospective employing unit, the coating department. To ensure the limitation on the scope of discovery, the magistrate permitted UCB to redact or remove any information from these documents that concerned positions outside the coating department. In addition, the magistrate ordered Berti's deposition to be reopened for purposes of questioning her about coating department information contained in these documents. The magistrate refused to award sanctions to either of the plaintiffs concerning these motions to compel.
Plaintiffs contend that the magistrate erred in (1) limiting the scope of discovery; (2) not imposing judicial oversight over defendant's redaction of documents; and (3) not awarding expenses in connection with the filing of the motions to compel.
The court shall first consider the scope of discovery issue. Plaintiffs argue that the magistrate has unduly restricted discovery contrary to established Tenth Circuit law. Plaintiffs contend that they are entitled to discovery of all information regarding individuals who applied for jobs at the Tecumseh plant. The defendant had originally argued that the scope of discovery should be limited to include only the applicants for coating operator positions. The magistrate rejected the arguments of both sides and determined that discovery would encompass all positions within the coating department, not just the coating operator positions. The issue of the appropriate scope of discovery arises frequently in the motions for review filed by plaintiffs.
The scope of discovery "is limited only by relevance and burdensomeness." Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980). Discovery in employment discrimination cases depends heavily upon the particular circumstances of the case. A court may establish appropriate limits in order to balance the needs and rights of both plaintiff and defendant. The Tenth Circuit has not, as suggested by plaintiffs, adopted a policy of always allowing plant-wide discovery in employment discrimination actions. See Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973) (in disparate impact case, Tenth Circuit affirms district court's order limiting discovery to single store where plaintiff employed rather than permitting broader discovery company-wide to all stores). Rather, the Tenth Circuit has recognized that district courts have broad discretion in discovery matters, and have examined the relevance and the burdensomeness of the request. In the context of investigating an individual complaint of disparate treatment, such as exists in the instant cases, the Tenth Circuit has recognized that discovery may appropriately be limited to employment units, departments and sections in which employees similarly situated to plaintiff are employed. James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979) (limiting discovery in gender discrimination case to plaintiff's department); see also Haselhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10 (D.Kan. 1995) (discovery limited to employing unit); Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir. 1990) (limiting discovery in Title VII cases to employing unit); Marshall v. Westinghouse Electric Corp., 576 F.2d 588, 592 (5th Cir. 1978) (where individual case of disparate treatment is alleged, focus in discovery should be on employing unit or work unit). To justify the court's consideration beyond the employing unit or work unit, the plaintiff must show a more particularized need and relevance. Haselhorst, 163 F.R.D. at 11.
The court does not find the magistrate's decision to limit discovery to the coating department clearly erroneous. The court finds that the magistrate properly concluded that plaintiffs had not shown a particularized need and relevance for the plant-wide discovery. In sum, the court finds no basis to the objections offered by the plaintiffs.
The court also does not find that the magistrate's decision not to impose any judicial oversight over the defendant's redactions of the spreadsheet and client file was clearly erroneous. The court is in agreement with the defendant that this is a matter that can be managed by the parties.
Finally, we shall address the issue of sanctions. This presents an interesting question. The facts are not in dispute. The motion filed by plaintiff Hladky was entitled "Motion to Compel Disclosure of Specific Documents and for Sanctions." The motion and accompanying memorandum, however, failed to address the issue of sanctions. The motion filed by plaintiff Epling did not mention sanctions either in its title or anywhere in the motion or accompanying memorandum. Under these circumstances, the magistrate determined that plaintiffs had not requested sanctions. In addition, he determined that sanctions should not be awarded because he did not grant the motions in their entireties.
Sanctions shall be allowed when a motion to compel discovery is granted or if the requested discovery is provided after the filing of the motion, unless the court finds that the motion was filed without the movant making a good faith effort to obtain the discovery, or that the opposing party's nondisclosure was substantially justified, or that other circumstances make the award of expenses unjust. Fed.R.Civ.P. 37(a)(4)(A). Expenses may be apportioned among the parties in a just manner where the motion to compel is grant in part and denied in part. Fed.R.Civ.P. 37(a)(4)(C).
Given the language of Rule 37(a)(4)(A), the court does not agree with the magistrate that a party needs to request sanctions when filing a motion to compel under Rule 37. There is a presumption in favor of expense shifting sanctions under Rule 37(a)(4)(A). Unless an exception applies, the rule provides that sanctions should be applied. Accordingly, we do not see that the rule requires a request or argument for sanctions. Nevertheless, the court does not find the magistrate's decision not to award sanctions clearly erroneous. If a motion to compel discovery is granted in part and denied in part, the court may apportion expense shifting sanctions among parties "in a just manner." Fed.R.Civ.P. 37(a)(4)(C). The motions filed by the plaintiffs were granted in part and denied in part. The magistrate declined to enter sanctions. This court does not find that this decision was clearly erroneous.
Plaintiffs' Motions to Compel Disclosure and Discovery and for Sanctions
In June 1999, plaintiffs filed motions to compel disclosure and discovery of interrogatories and requests for production of documents to defendant. The majority of the defendant's objections to plaintiffs' discovery requests focused on the aforementioned dispute over the scope of discovery, i.e., whether plaintiffs were entitled to discover information regarding all applicants for all positions at UCB from July 1997 to the present. The defendant also objected to the number of interrogatories propounded by each plaintiff because they exceeded the number permitted by Fed.R.Civ.P. 33(a). In their motions, plaintiffs again requested sanctions for filing the motions.
The magistrate once again held that discovery was limited to information pertaining to plaintiffs' prospective employing unit, the coating department. He further ruled that the number of interrogatories for both plaintiffs exceeded the number permitted by the Federal Rules of Civil Procedure. He estimated that the number of interrogatories propounded by Epling, including subparts, ranged from 25 to 168 interrogatories, while the number propounded by Hladky ranged from 21 to 89 separate interrogatories. He ordered plaintiffs to select twenty-five from those already propounded to resubmit to the defendant. In addition to his general rulings, the magistrate made numerous determinations on the scope of the individual requests for production of documents. Finally, he denied plaintiffs' request for sanctions under Fed.R.Civ.P. 37(a)(4)(C).
In this motion, plaintiffs contend that the magistrate erred in (1) limiting plaintiffs' discovery to information pertaining to their prospective employing unit, the coating department; (2) determining that the interrogatories exceeded the number allowed by Rule 33 and requiring them to repropound only twenty-five interrogatories; (3) denying several of their requests for production of documents; and (4) denying their request for sanctions.
The court has carefully considered all of the arguments raised by the plaintiffs. We find no merit to any of them. The court finds that the magistrate carefully and properly ruled on each of the aforementioned matters. The court does not find that any of these rulings were clearly erroneous.
Plaintiffs' Motions to File Amended Complaints
In July 1999, plaintiffs sought to amend their complaints to add retaliation claims and to amend their age discrimination claims to include allegations that they both sought "any job" at the Tecumseh plant. The magistrate denied these motions as untimely. In December 1999, plaintiffs sought leave to file second amended complaints to add UCB, Inc. as a defendant. Epling also sought leave to amend to add four new plaintiffs. The magistrate also denied the motions to amend as untimely. He further denied motions to add UCB, Inc. as a defendant as futile. In this motion, plaintiffs contend that the magistrate erred in denying their motions to amend. Plaintiffs argue, inter alia, that the magistrate failed to consider whether the defendant would suffer any prejudice as a result of granting either motion to amend.
While leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), the decision "is within the discretion of the trial court." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). "[A] district court acts within the bounds of its discretion when it denies leave to amend for `untimeliness' or `undue delay.' Prejudice to the opposing party need not be shown also." First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1133 (10th Cir. 1987).
After considering all of the facts surrounding the motions to amend filed by both plaintiffs, the court does not find that the magistrate's decisions to deny the motions to amend based on untimeliness were clearly erroneous or contrary to law. The court believes the magistrate thoroughly examined the issues and reached a decision within the bounds of his discretion. Given this decision, the court finds it unnecessary to address the rulings made by the magistrate concerning the futility of the proposed amendments. Moreover, the court notes that recent events have rendered portions of the motions to amend moot. The court has denied motions to dismiss in two cases filed by the plaintiffs after these cases that raised many of the allegations contained in the motions to amend.
Plaintiffs' Motions to Determine Sufficiency of Responses to Admissions
On June 16, 1999, plaintiffs served requests for admission upon the defendant. The deadline for serving discovery requests was June 15, 1999. In August 1999, plaintiffs sought to determine the sufficiency of the defendant's responses to the requests for admissions. The defendant objected to the requests for admissions, arguing that they were untimely served. The magistrate agreed. The magistrate denied the plaintiffs' motion to determine the sufficiency of the responses to the requests for admissions. The magistrate determined that the requests for admissions were a form of discovery and that they were untimely because they had been served after the discovery deadline. The magistrate stated that, in order to be timely, the requests needed to be served on or before May 13, 1999, so that responses could be filed prior to the discovery deadline. The magistrate also granted defendant's request for sanctions.
Plaintiffs contend that the magistrate erred in finding the requests for admissions untimely and in imposing sanctions. Plaintiffs assert that requests for admission are not discovery tools and were, therefore, not subject to the discovery deadline established by the magistrate. Plaintiffs further argue that sanctions should not have been imposed because past practices in this court and precedent from other jurisdictions supported the position taken by them before the magistrate.
The question of whether discovery deadlines apply to requests for admission is the subject of much dispute. Compare Jarvis v. Wal-Mart Stores, Inc., 161 F.R.D. 337, 339 (N.D.Miss. 1995) (requests for admission are a form of discovery and are therefore subject to the discovery deadline) with O'Neill v. Medad, 166 F.R.D. 19, 21 (E.D.Mich. 1996) (requests for admissions are not general discovery device and therefore are not subject to discovery deadlines) and Hurt v. Coyne Cylinder Co., 124 F.R.D. 614, 615 (W.D.Tenn. 1989) (same) and with Kershner v. Beloit Corp., 106 F.R.D. 498, 499 (D.Maine 1985) (requests for admissions are subject to discovery deadline but should be answered even if untimely unless opposing party shows some prejudice).
Having reviewed this contradictory precedent, none of which comes from the Tenth Circuit or the District of Kansas, the court is persuaded that the decision of the magistrate was not clearly erroneous or contrary to law. The court, however, does find that the magistrate's decision to award sanctions was clearly erroneous. The magistrate found the arguments of the plaintiffs frivolous and disingenuous. We cannot agree. The state of the law on this issue is clearly unsettled. The court finds that the arguments of the plaintiffs were substantially justified. We believe that the imposition of sanctions under these circumstances was inappropriate. See Bieganek v. Wilson, 110 F.R.D. 77, 78 (N.D.Ill. 1986). Accordingly, the court shall vacate the award of sanctions to the defendant on this issue.
Plaintiffs' Motions for Extension of Expert Disclosure and Discovery Deadline
In June 1999, plaintiffs moved to extend the expert disclosure deadlines by sixty days. The magistrate denied the motion. The court does not find that this decision was clearly erroneous or contrary to law.
PLAINTIFF HLADKY'S PETITION FOR REVIEW OF MAGISTRATE'S ORDER OF AUGUST 31, 2000
In response to the magistrate's order of August 7, 2000, the defendant produced approximately 20,000 pages of documents to plaintiffs. The defendant photocopied these documents and provided them to plaintiffs in eight large boxes. Plaintiffs complained about the method of the defendant's production. On August 31, 2000, the magistrate held a hearing to address plaintiffs' complaints. At that time, plaintiffs argued that Fed.R.Civ.P. 34(b): (1) required the defendant to organize and identify documents to correspond with the categories in plaintiffs' document requests; and (2) produce original documents rather than copies. The magistrate denied plaintiffs' complaints, finding that the defendant had adequately complied with the requirements of Rule 34(b). The magistrate found no merit to the arguments raised by the plaintiffs. Plaintiff Hladky contends that the magistrate erred in reaching this decision.
The court does not find the decision of the magistrate clearly erroneous. The court fails to find, based upon the information presented, that the documents produced by the defendant were not produced as they were kept in the ordinary course of business. In addition, the court finds nothing in Rule 34 that requires that a party produce originals rather than copies. In sum, plaintiff's petition for review shall be denied.
PLAINTIFFS' PETITION FOR REVIEW OF MAGISTRATE'S ORDER DATED SEPTEMBER 22, 2000
In his order of August 7, 2000, the magistrate ruled that the appropriate scope of discovery was the coating department of the Tecumseh plant for the time period from July 1997 through the present. The magistrate also ruled that the defendant did not have standing to object to or quash the subpoena duces tecum served by plaintiffs on Shirley Martin-Smith. Plaintiffs had previously served a subpoena duces tecum on Martin-Smith requesting all application documents of all individuals who applied for any positions at the Tecumseh plant during the time period from July 1997 through December 1997. On or about September 11, 2000, plaintiffs issued an amended subpoena duces tecum on Shirley Martin-Smith. Plaintiffs requested all application documents for all positions for the time period from July 1997 through the present. The defendant responded with a motion to enforce the magistrate's August 7th order.
The magistrate granted the defendant's motion to enforce. The magistrate held that while plaintiffs were allowed to once again serve their deposition notice on Martin-Smith, they were not permitted to obtain documents concerning all positions at the Tecumseh plant because discovery had been limited to the coating department, plaintiffs' employing unit.
In this motion, plaintiffs contend that the magistrate erred in limiting the subpoena to documents concerning the coating department. Plaintiffs contend that they should have been allowed to proceed on the requests of the prior subpoena (with an expansion of the discovery time frame as established in the magistrate's August 7th order) because the magistrate had ruled that the defendant had no standing to quash the subpoena.
This motion again raises the scope of discovery issue. Again and again, plaintiffs have suggested that discovery should be expanded to the entire plant because "all hiring decisions between July 1997 and the present have been made by the human resources managers Michael Machell and Jenne Hippe under the direct supervision of UCB vice president Joseph Wilbanks." As correctly pointed out by the defendant, plaintiffs have never cited to any portion of the record to support the quoted material. Moreover, the defendant has repeatedly cited to evidence suggesting that the quoted material has no basis in fact.
Once again, the court does not find that the magistrate's decision was clearly erroneous. The magistrate has demonstrated a thorough understanding of these cases and the issues involved. Accordingly, this motion shall also be denied.
PLAINTIFFS' MOTION FOR REVIEW OF MAGISTRATE'S ORDER OF JANUARY 24, 2001
In his order of August 7, 2000, the magistrate held that the defendant was entitled to expenses, including attorney's fees, incurred in responding to plaintiffs' motions to determine the sufficiency of the responses to their requests for admissions. On January 24, 2001, the magistrate awarded sanctions to the defendant in the amount of $2,390.48. In this motion, plaintiffs object to the amount awarded.
With the court's decision reversing the magistrate's award of sanctions, the court finds that this motion is moot.
PLAINTIFF HLADKY'S PETITIONS FOR REVIEW OF MAGISTRATE'S ORDER OF JANUARY 31, 2001
On January 12, 2001, plaintiff Hladky filed a motion to take the noticed depositions of Joe Gaynor and Joe Wilbanks telephonically. The defendant opposed the plaintiff's motion and filed a motion for protective order. On January 31, 2001, the magistrate denied plaintiff's motion and granted defendant's motion. The magistrate determined that (1) plaintiff had not met her initial burden of demonstrating a legitimate reason for taking the deposition by telephone; and (2) telephonic depositions were not appropriate due to the complexity of the case and number of documents requested.
In her petitions for review, plaintiff contends that the magistrate erred in denying her motion to take the depositions of Wilbanks and Gaynor by telephone. Plaintiff argues initially that there was no need for her to state a legitimate reason for the need to take a deposition by telephone because the need was obvious, i.e., to save costs. Plaintiff further contends that the legal and factual bases for denying her motion were inaccurate.
Rule 30(b)(7) provides that "the court upon motion may order that a deposition be taken by telephone." As a general rule, this court believes that telephonic depositions should be broadly permitted. We are not convinced as suggested by the magistrate that a litigant must affirmatively state a reason for the taking of a deposition by telephone. The court notes that in Cressler v. Neuenschwander, 170 F.R.D. 20 (D.Kan. 1996), a case relied upon by the magistrate, Judge Saffels stated that a "party seeking to depose a witness telephonically must present a legitimate reason for its request." Cressler, 170 F.R.D. at 21. While we agree in substance with this statement, we are not persuaded that each case requires the statement of a reason because the purpose for taking a deposition by telephone is obvious in most cases, i.e., the savings of time and costs. In this case, where plaintiff sought to take the depositions of individuals who were located in Atlanta, Georgia, we believe that the purpose was readily evident. Accordingly, the court finds the magistrate's decision to deny plaintiff's motion for this reason clearly erroneous.
Once a motion to take a deposition by telephone is filed, the burden shifts to the other side to show why the depositions should proceed in the traditional manner. Cressler, 170 F.R.D. at 21. Here, the defendant suggested that these depositions should not be taken by telephone because of the complexity of the case and the number of documents requested by the plaintiff. The magistrate agreed. Based upon information presently before the court, we cannot say that the magistrate's decision was clearly erroneous. Accordingly, this motion shall also be denied.
IT IS THEREFORE ORDERED that plaintiffs' petitions for review of the magistrate's order of August 7, 2000 (Doc. # 132 in No. 98-4226 and Doc. # 136 in No. 98-4227) be hereby granted in part and denied in part. On remand, the magistrate shall (1) consider whether sanctions should be awarded to plaintiffs in connection with defendant's motions for protective orders and (2) vacate the award of sanctions to defendant in connection with plaintiffs' motions to determine sufficiency of responses to admissions.
IT IS FURTHER ORDERED that plaintiff Hladky's petition for review of the magistrate's order of August 31, 2000 (Doc. # 155 in No. 98-4226) be hereby denied.
IT IS FURTHER ORDERED that plaintiffs' petitions for review of the magistrate's order of September 22, 2000 (Doc. # 165 in No. 98-4226) be hereby denied.
IT IS FURTHER ORDERED that plaintiffs' petitions for review of the magistrate's order of January 24, 2001 (Doc. # 228 in No. 98-4226) be hereby denied as moot.
IT IS FURTHER ORDERED that plaintiff Hladky's petitions for review of the magistrate's order of January 31, 2001 (Doc. ## 56 and 57 in No. 00-4062) be hereby denied.
IT IS FURTHER ORDERED that plaintiffs' motion to strike defendant's amended motion to file surreply (Doc. # 186 in No. 98-4226) by hereby denied.
IT IS FURTHER ORDERED that defendant's motion to disregard plaintiffs' response to defendant's surreply (Doc. # 211 in No. 98-4226) be hereby denied.
IT IS SO ORDERED.