United States District Court, D. Oregon
J. Snyder, Carl L. Post, and John D. Burgess, Law Offices of
Daniel Snyder, of Attorneys for Plaintiff.
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
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, Local Rule (“LR”) 83-8(a),
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),
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.
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.
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.
Plaintiff's Motion for Leave to Take More than Ten
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) ...