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Kelly v. Boeing Co.

United States District Court, D. Oregon

January 22, 2019

MICHAEL KELLY, Plaintiff,
v.
THE BOEING COMPLANY, Defendant.

          Daniel J. Snyder, Carl L. Post, and John D. Burgess, Law Offices of Daniel Snyder, of Attorneys for Plaintiff.

          James M. Barrett, Ogletree, Deakins, Nash, Smoak & Stewart, pc, Robert Jon Hendricks, Joseph R. Lewis, Morgan, Lewis & Bockius, llp, One Market, Spear Street Tower, San Francisco, CA 94105. Of Attorneys for Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE

         Before the Court are two discovery motions that should not have needed to be filed. If both sides took seriously their obligations under Rule 1 of the Federal Rules of Civil Procedure, [1]Local Rule (“LR”) 83-8(a), [2] and this Court's Statement of Professionalism with which every attorney admitted to general or special practice in the District of Oregon must comply pursuant to LR 83-7(a), [3] the two disputes that now require resolution by the Court would have been solved by the parties themselves or would not have arisen in the first place.[4]

         The first motion is Plaintiff's Discovery Motion for Leave to Take More than Ten Depositions. For the reasons that follow, that motion is denied without prejudice and with leave to renew if and when appropriate. The second motion is Plaintiff's Motion for Protective Order, seeking to prevent the deposition of a third-party witness that Defendant's counsel scheduled at a time when Plaintiff's counsel is unavailable. For the reasons that follow, that motion is granted.

         BACKGROUND

         From February 2011 through January 2017, Kelly worked for Boeing as a milling machine operator in Boeing's facility in Portland, Oregon. Kelly previously worked for Boeing from approximately 1984 through 1994. During the entire time that Kelly worked for Boeing, he suffered from both celiac disease and chronic gout. On January 12, 2017, Boeing terminated Kelly's employment. Kelly alleges unlawful discrimination and retaliation in violation of Title I of the American's with Disabilities Act (“ADA”); unlawful interference, discrimination, and retaliation in violation of the Family and Medical Leave Act of 1993 (“FMLA”); similar claims under the Oregon Rehabilitation Act and the Oregon Family Leave Act; common law wrongful discharge; and common law intentional infliction of emotional distress. Kelly seeks economic and non-economic compensatory damages, statutory liquidated damages, injunctive relief, and attorney's fees.

         DISCUSSION

         A. Plaintiff's Motion for Leave to Take More than Ten Depositions

         Rule 30 of the Federal Rules of Civil Procedure provides that a party may not take more than ten depositions absent stipulation by all parties or leave of court. Fed.R.Civ.P. 30(a)(2)(A)(i). When considering a party's request for leave to take more than ten depositions, the Court “must grant leave to the extent consistent with Rule 26(b)(1) and (2).” Fed.R.Civ.P. 30(a)(2) (emphasis added). “Rule 30 is designed to reduce litigation costs and delay of discovery by setting a limit on the number of depositions, which is one of the more expensive forms of discovery.” In re At Home Corp., 2005 WL 289976, at *3 (N.D. Cal. Feb. 4, 2005). As explained by United States District Judge Phyllis Hamilton:

Under Rule 26(b)(2) the Court will consider whether: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. See Smith v. Ardew Wood Products, Ltd., 2008 WL 4837216 (W.D. Wash., Nov.6, 2008).
A party seeking to exceed the presumptive number of depositions must make a particularized showing of the need for the additional discovery . Bell v. Fowler, 99 F.3d 262, 271 (8th Cir. 1996); Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 586 (D.Minn.1999). To that end, courts will generally not grant leave to expand the number of depositions until the moving party has exhausted the ten depositions permitted as of right under Rule 30(a)(2).
Moreover, in the court's view, Rule 30(a)(2) contemplates that a party has already taken at least some of its ten depositions before a motion is filed seeking leave of court for a proposed deposition that would result in more than ten depositions being taken under this rule. See Archer Daniels, 187 F.R.D. at 586 (a party should appropriately exhaust its current quota of depositions, in order to make an informed request for an opportunity to depose more witnesses, before seeking leave to depose a legion of others).

Authentec, Inc. v. Atrua Techs., Inc., 2008 WL 5120767, at *1 (N.D. Cal. Dec. 4, 2008) ...


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