United States District Court, D. New Mexico
ORDER GRANTING IN PART MOTION FOR PROTECTIVE ORDER
AND ORDERING PAYMENT OF FEES
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendants' Motion for
Protective Order and the attendant briefing. Docs.
51, 56, 57, 58. For the reasons that follow, the Court hereby
GRANTS in part Defendants' Motion for Protective Order
October 5, 2018, Defendants filed a Motion to Stay (doc. 40),
pending resolution of Defendants' Motion for Summary
Judgment Based on Qualified Immunity (doc. 39). In
Plaintiff's Response to Defendants' Motion to Stay,
and in Plaintiff's Rule 56(d) Response to Defendants'
Motion for Summary Judgment (doc. 41), Plaintiff sought an
exception to the discovery stay that would allow Plaintiff to
continue to conduct limited depositions, and argued that
these depositions would not be unduly burdensome on
Defendants because “all discovery directly related to
the remaining depositions granted by the Magistrate Judge
would not require Defendants to search for and produce
responsive information because documents discovery has
already been completed.” Doc. 42 at 3.
October 24, 2018, the Court entered an Order that stayed
discovery in the instant case but provided for a limited
exception in which Plaintiff could nevertheless conduct the
depositions of Katie Josselyn and Brian Cesar and reopen the
deposition of Margaret Paluch. Doc. 46. The Court made no
allowance for continued document discovery. See Id.
Despite the limited confines of the Court's discovery
allowance, on November 9, 2018, Plaintiff served an Amended
Notice of Rule 30(b)(6) Deposition of Katie Josselyn on
Defendants, requesting document production in conjunction
with that deposition. See doc. 51-2 at 2-4.
for Defendants responded to Plaintiff by email the same day,
noting that the document production requests in the Amended
Notice were contrary to the Court's limited discovery
stay exception and contrary to the rules of civil procedure.
Doc. 51-3. At that time, Defendants suggested rescheduling
the deposition in light of the dispute. Id.
Plaintiff's counsel failed to respond to Defendants'
email, so Defendants followed up on November 13, 2018.
Id. In his response on November 13, 2018, and in
subsequent communications, Plaintiff's counsel persisted
in stating that he expected documents to be produced at the
deposition, which would proceed as scheduled. Docs. 51-4-9.
on the evening of November 13, 2018, Defendants filed the
instant Motion for Protective Order and Notice of
Non-Appearance of Katie Josselyn. Doc. 51. In their Motion,
Defendants argue that, by manufacturing a discovery dispute
shortly before the date of the deposition, Plaintiff waived
his right to depose Ms. Josselyn. Doc. 51 at 4. In addition,
Defendants seek a protective order against providing the
documents requested in Plaintiff's Amended Notice of
Deposition, and request that the Court grant Defendants the
fees and costs associated with the Motion and any other
relief the Court deems just. Id.
Response, Plaintiff contends that Defendants waived their
right to object to the document requests, because Defendants
did not object to the initial October 3, 2018 Notice of
Deposition Duces Tecum, but only objected to the November 9,
2018 Amended Notice. Doc. 56. However, as Defendants note in
their Reply, the discovery stay was not implemented until
October 24, 2018, and the Court's Order made clear that
the exception to the discovery stay was limited to deposing
Brian Cesar, Margaret Paluch, and Katie Josselyn. See
generally docs. 46, 58. Further, in order to secure this
exception to the discovery stay, Plaintiff stated that he
would not require document discovery. Doc. 42 at 3.
these circumstances, it is clear that Plaintiff may not seek
document production pursuant to Rule 30 (or any other Rule of
Civil Procedure) while the discovery stay is in place.
Plaintiff's demand for documents in connection with the
remaining 30(b)(6) deposition is hereby stricken.
Nonetheless, the Court will not go so far as to find that
Plaintiff has waived his right to depose Ms. Josselyn. That
deposition should be conducted promptly and without further
having ruled on this discovery dispute, the next question is
whether costs and fees should be awarded. Upon resolution of
motions to compel, 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);
Fed.R.Civ.P. 37(a)(5). 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.”
Id. Defendant is the prevailing party and the Court
does not find any of these exceptions applicable. Therefore,
Plaintiff must pay to Defendants those reasonable
attorney's fees and costs associated with their briefing
of this Motion.
IT IS HEREBY ORDERED that Defendants' Motion is
GRANTED IN PART as described above.
Defendants shall submit an Affidavit for Attorney's Fees
no later than December 14, 2018. Should
Plaintiff object to the requested fees, such objections must
be filed no later than December 21, 2018.
Defendants' motion was not granted
in its entirety because the Court did not impose one of the
requested sanctions - waiver of the 30(b)(6) deposition.
Nonetheless, Defendants were the “prevailing
party” on all substantive issues. Moreover, even if the
Court applied Fed.R.Civ.P. 37(a)(5)(C) to this circumstance,