United States District Court, D. New Mexico
ORDER GRANTING DEFENDANTS' MOTION TO EXTEND
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendants' Motion for
Leave to Extend the Deposition of Veronica Lassiter Beyond
Seven Hours [Doc. 106], filed on June 4, 2018. Plaintiff
responded on July 2, 2018. [Doc. 122]. Having considered the
briefing,  relevant portions of the record, and
relevant authorities, and being otherwise fully advised in
the premises, the Court finds that Defendants' motion is
well-taken and will be GRANTED.
Court entered a Scheduling Order in this case on December 22,
2017. [Doc. 48]. Consistent with Fed.R.Civ.P. 30(d)(1), the
Scheduling Order provides that depositions are limited to
seven hours of questioning on the record, unless the parties
agree to an extension. Id. at 1. Counsel for
Defendant Hidalgo Medical Services (“HMS”)
deposed Plaintiff on April 19, 2018, for approximately seven
hours on the record. See [Doc. 106] at 1. However,
counsel for HMS did not complete his questioning in that
time, and counsel for Defendant Otero had no opportunity to
question Plaintiff at all. At the conclusion of the day,
defense counsel sought concurrence from Plaintiff's
counsel to extend the deposition to a second day, beyond the
allotted seven hours. Id. at 2. Plaintiff's
counsel did not concur.
Defendants filed the instant motion requesting leave to
extend Plaintiff's deposition for an additional day of
questioning not to exceed four hours. Defendants contend that
counsel for HMS need to complete their examination of
Plaintiff, namely on the issues of damages and mitigation,
and that counsel for Otero needs time to question Plaintiff
separately. Defendants argue that additional time is
warranted because (1) Plaintiff is a key witness and a large
number of the factual allegations are uniquely within her
knowledge; (2) the Complaint is lengthy and contains numerous
complex allegations; (3) the two Defendants-HMS and Otero-
have somewhat divergent interests, meriting separate
questioning by counsel for Otero; (4) Defendants received
Plaintiff's day planner after the deposition and should
be permitted to question her about it; and (5) Plaintiff
spent a significant amount of time during her deposition
reviewing documents. [Doc. 106].
opposes the motion. Plaintiff contends that Defendants had
sufficient time to complete the deposition but wasted much of
it, spending, for example, “more than forty pages of
deposition testimony” questioning her about the 2013
offer letter she received to become HMS Chief Operations
Officer (“COO”), which Plaintiff contends is
irrelevant to the case. [Doc. 122] at 4-5. Plaintiff further
disputes Defendants' contention that HMS and Otero have
divergent interests, noting that Otero himself stated that
their interests are “perfectly aligned.”
Id. at 5, 7- 8. Moreover, Plaintiff points out that
counsel for Otero attended the deposition and had the
opportunity to question her. Id. at 6-7. Plaintiff
disputes Defendants' argument that she spent inordinate
time reviewing documents, pointing out, for example, that
counsel for HMS specifically asked her to review her letter
of dismissal and respond to its contents line by line.
Id. at 9. Finally, Plaintiff suggests that
Defendants made the strategic decision to depose her before
receiving the full day planner. Plaintiff also points out
that Defendants had relevant portions of the day planner in
their possession and did in fact question Plaintiff about it.
Id. at 9- 10. Ultimately, Plaintiff argues that
Defendants should not be permitted to walk back their
strategic decisions regarding when to depose Plaintiff and
how to allocate their time questioning her. Id. at
Rule of Civil Procedure 30(d)(1) limits the duration of any
given deposition to one day of seven hours of questioning,
unless otherwise agreed to by the parties or ordered by the
Court. Rule 30(d)(1) further provides that the Court
“must allow additional time consistent with Rule
26(b)(1) and (2) if needed to fairly examine the deponent or
if the deponent, another person, or any other circumstance
impedes or delays the examination.” “The party
seeking a court order to extend the examination, or otherwise
alter the limitations, is expected to show good cause to
justify such an order.” Fed.R.Civ.P. 30(d) advisory
committee's note to 2000 amendment. In evaluating good
cause, courts may consider a number of factors, including (1)
whether the topic covers a significant period of time; (2)
whether the witness will be questioned about numerous or
lengthy documents; (3) whether documents were requested but
not produced; and (4) in multi-party cases, whether the
parties have divergent interests. Id; see also George K.
Baum Advisors LLC v. Sprint Spectrum, L.P., 2013 WL
3166335, at *2 (D. Kan. June 20, 2013) (unpublished).
Court finds there is good cause to extend Plaintiffs
deposition for an additional day of questioning, not to
exceed four hours. Plaintiff is the principal witness in this
case. And, notwithstanding Plaintiffs insistence that her
allegations are simple and straightforward, the Complaint
asserts twelve claims and exceeds forty pages in length.
See [Doc. 1]. Defendants point out that Plaintiffs
allegations span, among other things, “numerous
instances [of] harassment, at least three separate internal
investigations at HMS during her final year of employment,
her termination, her purported comparators, and her
damages.” [Doc. 106] at 5. Defendants are entitled to
additional time to complete their questioning of Plaintiff.
See Martinez v. Cornell Corr. of Tex., Inc., 229
F.R.D. 194, 197 (D.N.M. 2005) (the “volume of facts and
issues” to be covered at a deposition may establish
good cause to exceed the seven-hour limit).
urges that Defendants should not be given additional time to
depose her because they wasted time during the first day of
her deposition on “irrelevant topics, ” pointing
in particular to an extensive line of questioning regarding
her 2013 offer letter to become HMS COO and her duties as set
out therein. [Doc. 122] at 5-6. Plaintiff suggests this line
of questioning was irrelevant because Plaintiff was not
terminated for inadequate performance of her job duties and
Otero had given her a positive evaluation as recently as May
2016. Id. at 6. It is true that a party may not be
entitled to extend a deposition where the additional
questioning would be cumulative or duplicative, or where
counsel has wasted the time initially allotted. But the Court
does not find evidence of that in the present circumstance.
Questioning Plaintiff on her understanding and performance of
her job duties was not an irrelevant detour in this
employment action. Defendants have shown that an extension of
the deposition is warranted to “fairly examine”
Court further finds that extension of the deposition is
warranted to permit Defendants to question Plaintiff
regarding her day planner, which they did not have when
Plaintiff was first deposed. [Doc. 106] at 6. Defendants
requested the whole day planner prior to the deposition.
Id. Its production was ultimately the subject of a
motion to compel. See [Doc. 102]. Defendants are
entitled to additional time to question Plaintiff regarding
the day planner now that it has been produced to them in
full. Plaintiff suggests that Defendants made a strategic
choice to depose Plaintiff before receiving the planner, and
that they should be bound by that choice. But the Court will
not fault Defendants for proceeding with the deposition
before having the full day planner in their
possession-particularly in this case, where the parties had a
protracted dispute over the scheduling of depositions.
See [Docs. 33, 81].
the Court finds that extension of the deposition is warranted
to allow counsel for Otero to question Plaintiff. Defendants
contend that, while their respective positions are
“generally aligned, ” they do have somewhat
divergent interests. [Doc. 106] at 5-6. Namely, HMS has
asserted a “rogue manager” defense to
Plaintiff's claim for punitive damages. A party may show
good cause for extending a deposition where there are
co-defendants with divergent interests. See Fed. R.
Civ. P. 30(d) advisory committee's note to 2000
amendment; Martinez, 229 F.R.D. at 196 (extending
the plaintiff's deposition where, among other things,
there were five defendants with “certain interest[s]
that are potentially in conflict”). Plaintiff argues
that Defendants' interests are one and the same.
Plaintiff notes that Otero himself stated Defendants'
interests are “perfectly aligned” and cites case
law for the proposition that HMS cannot prevail on its
purported “rogue manager” theory. [Doc. 122] at
5. Whatever the merits of HMS's “rogue
manager” defense, Defendants' interests are
potentially in conflict, and Otero's counsel is permitted
to separately question Plaintiff as necessary.
are permitted to extend Plaintiffs deposition to an
additional day not to exceed four hours of questioning.
Defendants are cautioned against cumulative or duplicative
questioning. See Fed. R. Civ. P. 26(b)(2);
Fed.R.Civ.P. 30(d) advisory committee's note to 2000
amendment (“[D]uplicative questioning should be avoided
and parties with similar ...