United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION FOR PROTECTION
FROM DEPOSITION AND DENYING DEFENDANT'S MOTION FOR
GREGORY B. WORMUTH United States Magistrate Judge.
matter comes before the Court on Plaintiff's Motion for
Protection from Deposition (doc. 19) and
Defendant's Response thereto (doc. 20), seeking
sanctions against Plaintiff for having to respond to
Plaintiff's motion. In his motion, Plaintiff asks the
Court to prevent Defendant from deposing Plaintiff. For the
following reasons, the Court DENIES both Plaintiff's
motion and Defendant's request for
Plaintiff's Motion for Protection from
may take the deposition of “any person, including a
party” pursuant to the procedures outlined in the
Federal Rules of Civil Procedure. See Fed. R. Civ.
P. 30(a)(1)-(2). Where a party shows good cause for an order
protecting him from annoyance, embarrassment, oppression, or
undue burden or expense, the Rules anticipate several ways
that courts may limit the scope of the discovery sought in
order to address those concerns. See Fed. R. Civ. P.
26(c). Yet, barring extraordinary circumstances, courts
rarely will grant a protective order which totally prohibits
a deposition. Instead, “[m]otions to thwart a
deposition . . . are ordinarily denied.” Leighr v.
Beverly Enterprises-Kansas Inc., 164 F.R.D. 550, 552 (D.
Kan. 1996)). However, a court “may grant a protective
order prohibiting the taking of a deposition when it believes
that the information sought is wholly irrelevant to the
issues or prospective relief.” Id. at 551-52.
“The party seeking a protective order . . . has the
burden to demonstrate good cause and/or the privilege to be
protected.” Morales v. E.D. Etnyre & Co.,
228 F.R.D. 694, 696 (D.N.M. 2005) (citing Fed.R.Civ.P.
the Court finds that Plaintiff did not meet his burden to
demonstrate good cause to prohibit Defendant from deposing
him. Plaintiff's main basis for seeking a protective
order is that Defendant may use the deposition as an
opportunity to make false allegations against Plaintiff.
See doc. 19. However, Plaintiff has not provided
concrete reasons to support a finding that a deposition of
Plaintiff would be oppressive or unduly burdensome. See
Quarrie v. N.M. Inst. of Mining & Tech., 621 F.
App'x 928, 930, 932 (10th Cir. 2015) (unpublished) (not
an abuse of discretion to find motion for protective order
frivolous, where the plaintiff contended that he should be
protected from deposition because a deposition “would
be an extension of Defendants' oppressive acts.”).
Further, written discovery would not be an adequate
substitute for an oral deposition of Plaintiff, and Plaintiff
has not shown that the information sought would be
“wholly irrelevant to the issues.” See
Leighr, 164 F.R.D. at 551-52. Rather, the deposition of
the party who has initiated the litigation is essential to
the discovery of pertinent information that Defendant may not
obtain by other means without undue burden. In consideration
of the foregoing, Plaintiff's Motion for Protection from
Deposition is hereby DENIED.
Defendant's Motion for Sanctions
in its Response to Plaintiff's Motion for Protection from
Deposition (doc. 20), asks this Court to require
Plaintiff to pay the costs and attorneys' fees that
Defendant incurred in having to respond to Plaintiff's
motion, which Defendant deems frivolous. The Court DENIES
Defendant's request for the following reasons.
resolution of a motion for protective order, the
“losing” party must be required to pay the
reasonable expenses incurred in making or opposing the
motion. See Fed. R. Civ. P. 26(c)(3) (making
Fed.R.Civ.P. 37(a)(5) applicable to motions for protective
orders). However, this payment shall not be required if (i)
the prevailing party failed to make a good faith effort to
obtain the disclosure without court action; (ii) the
“losing” party's grounds were
“substantially justified” or (iii) the
“circumstances make an award of expenses unjust.”
Court explicitly denied Plaintiff's motion at the Rule 16
conference on October 25, 2017, after permitting Defendant to
respond orally. See doc. 23. As the Court noted,
proceeding in that fashion was designed to mitigate
Defendant's effort in responding to the motion. See
Id. Nonetheless, Defendant filed its Response the next
day. See doc. 20. Defendant's Response does not
claim that it should be awarded costs because the Response
was substantially completed prior to the Court's oral
ruling. Moreover, Defendant's Response relies exclusively
on state procedural law which is inapplicable in federal
court. Under these circumstances, the Court finds that an
award of expenses to Defendant would be unjust.
consideration of the foregoing, the Court hereby DENIES
Plaintiff's Motion for Protection from Deposition
(doc. 19) and further DENIES Defendant's request
for sanctions contained in its Response to Plaintiff's
Motion (doc. 20).
IS SO ORDERED.
 The Court issued an oral ruling
denying Plaintiff's Motion during the Rule 16 scheduling
conference held in this matter on October 25, 2017. Despite
the motion having been resolved, Defendant filed its response
seeking sanctions one day ...