United States District Court, D. New Mexico
LYDELL MARVIN BEGAY, MARTIN “MARTY” BEGAY, and LORENE BEGAY, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
T. Cohen, Cynthia Zedalis Cohen & Zedalis LLP Santa Fe,
New Mexico and Margaret Moses Branch Branch Law Firm
Albuquerque, New Mexico Attorneys for the Plaintiffs
A. Tierney Acting United States Attorney Erin Langenwalter
Christopher F. Jeu Assistant United States Attorneys United
States Attorney's Office Albuquerque, New Mexico
Attorneys for the Defendant
MEMORANDUM OPINION 
THIS MATTER comes before the Court on The
United States of America's Motion for Protective Order,
filed November 23, 2016 (Doc. 80)(“Motion”). The
Court held a hearing on December 6, 2016. The primary issue
is whether the deposition of Jodene Butler, a Defendant
United States of America employee, should take place at the
office of the Plaintiffs' counsel in Albuquerque, New
Mexico, or in Shiprock, New Mexico, where Butler works. The
Court concludes that the deposition should take place in
Shiprock, not in Albuquerque, so the Court grants the
Defendant United States of America's Motion. The Court
concludes that Butler's deposition should take place in
Shiprock instead of Albuquerque, because “when the
plaintiff sets the deposition of a corporate defendant's
employee, the employee is entitled to have his deposition
taken at his residence or where he works.”
Gulfstream Worldwide Realty, Inc. v. Philips Elects. N.A.
Corp., No. CIV 06-1165, 2007 WL 5704041, at *5 (D.N.M.
Oct. 27, 2007)(Browning, J.).
March 2014, Plaintiff Lydell Marvin Begay visited the
emergency room at the Northern Navajo Medical Center in
Shiprock. See Complaint for Damages ¶ 2, at
1-2, filed April 28, 2015 (Doc. 1)(“Complaint”).
According to the Plaintiffs, “[a]s a result of
Defendant's negligent medical care, misdiagnosis and
failure to adequately credential, staff, or supervise the
emergency room at NNMC, Lydell Begay suffered catastrophic
and permanent injuries, injuries that have all but taken this
young man's life away.” Complaint ¶ 4, at 2.
Also according to the Plaintiffs, “the physician who
treated Lydell Begay, Annicol Marrocco, M.D., was acting
under restricted medical licenses and required close
supervision, ” but “NNMC provided no such
supervision.” Complaint ¶ 3, at 2.
April 27, 2015, the Plaintiffs filed their Complaint.
See Complaint at 13. On November 15, 2016, the
“Plaintiffs noticed the deposition of Jodene Butler,
who worked at the Northern Navajo Medical Center, ” and
they sought to depose her in Albuquerque. Motion at 1. On
November 23, 2016, the United States filed its Motion,
see Motion at 3, seeking “a protective order
preventing the taking of the deposition of Jodene Butler . .
. [on] December 1, 2016, at 10 a.m. in Albuquerque, New
Mexico, ” Motion at 1. The United States argues that a
protective order is appropriate, because “the general
rule [is] that the deposition of a corporate employee should
be taken at the corporation's principal place of
business.” Motion at 2 (citing Gulfstream Worldwide
Realty, Inc. v. Philips Elects. N.A. Corp., 2007 WL
5704041, at *5).
Court held a hearing on December 6, 2016. At that hearing,
the Court expressed an inclination to grant the Motion, and
the Plaintiffs indicated that they would be willing to take
Butler's deposition in Shiprock. See Draft
Transcript of Motion Hearing (taken December 6, 2016) at
2:17-4:13 (Court, Zedalis)(“Tr.”). On December 15,
2016, the Plaintiffs served a new “Notice of Deposition
Duces Tecum of Jodene Butler” on the United States.
Certificate of Service at 1, filed December 16, 2016 (Doc.
86)(not providing the date of the noticed deposition to the
Court). On January 13, 2017, the Plaintiffs served a
“Second Amended Notice of Deposition Duces Tecum of
Jodene Butler.” Certificate of Service, filed January
13, 2017 (Doc. 90)(not providing the date of the noticed
deposition to the Court). Six days later, the Plaintiffs
withdrew that notice. See Plaintiffs' Notice of
Withdrawal of Notice of Deposition Duces Tecum of Jodene
Butler at 1, filed January 19, 2017 (Doc. 94). On February 3,
2017, the Plaintiffs served a “Third Amended Notice of
Deposition Duces Tecum of Jodene Butler.” Certificate
of Service at 1, filed February 3, 2017 (Doc. 100)(not
providing the date of the noticed deposition to the Court).
There is no indication that Butler's deposition did not
proceed as noticed.
REGARDING PROTECTIVE ORDERS
district courts have broad discretion over discovery.”
Morales v. E.D. Etnyre & Co., 229
F.R.D. 661, 662 (D.N.M. 2005)(Browning, J.). The trial court
has discretion to grant a protective order pursuant to rule
26(c) of the Federal Rules of Civil Procedure. See
Morales v. E.D. Etnyre & Co., 229 F.R.D. at
663. Rule 26(c) provides that, upon a showing of good cause,
a court may “issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense, ” which may include forbidding
disclosure or discovery. Fed.R.Civ.P. 26(c)(1)(A). Accord
Miller v. Regents of the Univ. of Colo., 188 F.3d 518
(Table), 1999 WL 506520, at *12 (10th Cir. 1999)(“The
district court is in the best position to weigh these
variables and determine the appropriate limits because,
unlike an appellate court, the district court has the ability
to view firsthand the progression of the case, the litigants,
and the impact of discovery on parties and
is the party seeking the protective order who has the burden
to show good cause for a protective order.”
Velasquez v. Frontier Med. Inc., 229 F.R.D. 197, 200
(D.N.M. 2005)(Browning, J.). The party seeking the protective
order 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)(internal quotation
rule 26(c) is silent regarding the time within which the
movant must file for a protective order, “the United
States Court of Appeals for the Tenth Circuit has held that a
motion under rule 26(c) for protection . . . is timely filed
if made before the date set for production.”
Montoya v. Sheldon, No. CIV 10-0360, 2012 WL
2383822, at *5 (D.N.M. June 8, 2012)(internal quotation marks
and brackets omitted)(citing In re Coordinated Pretrial
Proceedings in Petroleum Prods. Antitrust Litig., 669
F.2d 620, 622 n.2 (10th Cir. 1982)).
REGARDING DEPOSITION LOCATIONS
the examining party generally designates the location for the
deposition of another party under rule 30(b) of the Federal
Rules of Civil Procedure, see Fed.R.Civ.P. 30(b), a
court may grant a protective order to appoint a different
place under rule 26(c)(2), see Fed.R.Civ.P.
26(c)(2). See also Schindler Elevator Corp. v. Otis
Elevator Co., No. CIV 06-5377, 2007 WL 1771509, at *8
(S.D.N.Y. June 18, 2007)(Katz, J.)(noting that “the
decision as to the location of the deposition lies with the
discretion of the Court”). Rule 26(c)(2) enables a
court to issue a protective order to protect a party from
“undue burden or expense.” Fed. R. Civ. Proc.
26(c). When making the determination of whether a protective
order is proper, “[t]he trial court has great
discretion in establishing the time and place of a
deposition.” Sheftelman v. Standard Metals
Corp., 817 F.2d 625, 628 (10th Cir. 1987). Because the
Plaintiff has greater influence over the choice of forum,
“courts are more willing to protect [a] defendant from
having to come to the forum for the taking of his or her
deposition than they are in the case of plaintiffs.”
O'Sullivan v. Rivera, 229 ...