United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
C YARBROUGH, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendants' Motion to
Compel Discovery (Doc. 65), filed September 5, 2019.
Plaintiff filed her response in opposition to the motion on
September 19, 2019 (Doc. 69), and Defendants filed their
reply on September 25, 2019 (Doc. 72). Following
Plaintiff's deposition testimony that she deposited
income from her business into her personal bank statements,
Defendants request the Court compel production of bank
statements from Plaintiff's personal Wells Fargo account
or accounts. For the reasons that follow, the Court GRANTS
filed this case in state court on November 9, 2018, alleging
violations of Title VII, the New Mexico Human Rights Act, and
the Americans with Disabilities Act. Doc. 1-1 at 8.
Defendants removed the case to federal court under federal
question jurisdiction. Doc. 1. In her Complaint, Plaintiff
alleged that she worked for Defendant Albuquerque Public
Schools (“APS”) from January 2000 until her
“constructive discharge” on March 7, 2017. Doc.
1-1 at 8. She further alleged $2, 143, 248 in damages,
including lost wages. Doc. 1-1 at 14. In her Third Amended
Complaint, the operative complaint in this matter, she
increases the amount of damages to $2, 298, 248. Doc. 38 at
discovery, Defendants served Interrogatory No. 10 on
Plaintiff, which requested every source of income Plaintiff
received since March 7, 2017. Doc. 65-1 at 2. Plaintiff's
response was that she “hasn't received any
income.” Id. At her deposition, however,
Plaintiff testified that she received “a little”
business income in 2017 and 2018. Plf.'s Dep. at 30:2-14,
Doc. 65-5 at 2. She testified that she had “not
completed the corporation taxes for” the years 2016
through 2018. Id. at 31:1-7. She testified that she
“may have” deposited business income into her
personal accounts between 2015 and 2018, but “that was
my bad accounting.” Id. at 31:18-23. When
asked if she had any documents “outlining how much
money went from the Gottago Rental business into any of [her]
personal bank accounts between 2016 and 2018, ” she
responded: “Maybe bank statements but - and my - the
bank account for it.” Id. at 31:24-32:5. The
bank account in question was a business bank account that
turned into a personal account later on, and is now closed.
Id. at 31:6-13.
light of that deposition testimony, Defendants sent Plaintiff
a letter requesting she supplement her answers to
Defendants' Requests for Production to include the bank
account statements referred to in her deposition. Doc. 65-3.
Plaintiff responded and refused to produce her bank account
statements. Doc. 65-4 at 3. This motion to compel followed on
September 5, 2019, the deadline by which the parties were
required to file any motions related to discovery.
See Doc. 22. In response to the present motion,
Plaintiff produced W-2 tax forms, but still refused to
produce her bank account statements. Docs. 69, 69-4.
Defendants may rely on Plaintiff's deposition
objects to Defendants' reliance on her deposition
testimony on the basis that she did not have the right to
read and sign her deposition pursuant to Federal Rule of
Civil Procedure 30(e)(1). Doc. 69 at 2-3. Rule 30 allows a
deponent a 30-day period “after being notified by the
officer that the transcript or recording is available in
which” to read and sign the transcript. Fed.R.Civ.P.
30(e)(1). “Rule 30 does not explain how an officer must
make the transcript ‘available' for review.”
PNC Equip. Fin. v. Mariani, 758 Fed.Appx. 384, 388
(6th Cir. 2018). “But federal courts have held that
Rule 30 does not require that a court reporter mail a copy of
a transcript to a deponent.” Id. “And
one federal court has held that a court reporter complies
with Rule 30 by inviting a deponent to review the transcript
at her office.” Id. (citing Parkland
Venture, LLC v. City of Muskego, 270 F.R.D. 439, 441
(E.D. Wis. 2010)). Especially where the Plaintiff does not
allege that the deposition transcript contains any
inaccuracies, it is not an abuse of discretion to rely on the
unsigned transcript. Id. at 388-89; Vukadinovich
v. Zentz, 995 F.2d 750, 754 (7th Cir. 1993) (“the
use of unsigned depositions at trial constitutes harmless
error unless [the deponent] can show that there were
particular inaccuracies in the depositions or that he was
prejudiced by their use at trial.”).
appears from the record before the Court that the court
reporter notified Plaintiff of her right to review the
transcript in the court reporter's office on August 13,
2019. Doc. 72-1. Plaintiff does not explain why she did not
do so. In addition, Plaintiff does not argue that the
substance of her testimony was incorrect. In her response to
the present motion, she argues that she only transferred
money to her personal account from her business to pay the
personal account for the business' purchase of assets,
Doc. 69 at 3, which is entirely consistent with her
deposition testimony. Plf.'s Dep. at 34:4-15, Doc. 65-5
at 3. This is also consistent with the premise of
Defendants' motion: that Plaintiff used a personal bank
account for business transactions, and the only way to
determine whether she had income is to examine those personal
bank statements. The Court thus finds no error in
Defendants' reliance on Plaintiff's deposition
Plaintiff has not shown that producing her bank
statements would be an undue burden.
argues that her bank statements “would be extremely
hard to retrieve.” Doc. 69 at 4. The Court interprets
this as an argument that producing the bank statements would
cause her an undue burden. Indeed, Federal Rule of Civil
Procedure 26(b)(1) allows discovery of non-privileged,
relevant matter that is “proportional to the needs to
the case . . . .” The party resisting discovery
“has the burden of showing undue burden or
expense.” Benavidez v. Sandia Nat'l Labs.,
319 F.R.D. 696, 719 (D.N.M. 2017) (citing Fed.R.Civ.P.
26(b)(1) advisory committee's notes to 2015 amendment).
Such burden can be met by showing that the request is overly
broad or that the burden and expense outweighs its likely
benefit. Fed.R.Civ.P. 26(b)(1).
Plaintiff does not further develop her argument, leaving the
Court with little information on which to make a decision.
Plaintiff has not represented that she has taken any
steps to look for this information, such as searching her own
files or simply asking her bank for copies. Without this
information, the Court finds that Plaintiff has not shown
that producing her bank statements would be an undue burden.
Plaintiff's bank ...