B. Fernandez & Hnos., Inc. v. International Brotherhood of Teamsters,et al, No. 3:2011cv01567 - Document 78 (D.P.R. 2012)

Court Description: OPINION AND ORDER. GRANTED 76 Motion for Protective Order. Signed by Judge Salvador E. Casellas on 9/25/2012. (AVB) (Main Document 78 replaced on 9/25/2012 to correct typographical error) (cm).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 B. FERNANDEZ & HNOS., INC., 4 Plaintiff, 5 v. 6 7 Civil No. 11-1567 (SEC) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ET AL., Defendants. 8 9 OPINION AND ORDER 10 Before the Court are co-defendant International Brotherhood of Teamsters ( IBT ) 11 motion to for protective order (Docket # 76), and the plaintiff s opposition thereto (Docket # 12 77). After reviewing the filings and the applicable law, IBT s motion is GRANTED. 13 On September 21, 2012, IBT moved to seek a protective order from this court to prevent 14 the plaintiff from deposing James P. Hoffa, IBT s president. The deposition, which was notified 15 on September 5, 2012, is scheduled for today at 1:00pm. IBT submits, among other grounds that 16 because Hoffa lacks knowledge of the discovery sought, and because the plaintiff has failed to 17 exhaust other less intrusive discovery methods, such as depositions of lower-ranked IBT 18 corporate officers, the protective order should be granted. 19 At the outset, the Court does not appreciate IBT s waiting until last Friday 16 days after 20 receiving the Notice of Deposition to file the instant motion. While the motion is technically 21 timely, as it was filed before the day of the deposition, see 6-26 Moore s Federal Practice - Civil 22 § 26.102 [2], the Court has had less than 24 hours to review the plaintiff s response, which was 23 filed yesterday. IBT is thus admonished that this court will not tolerate this sort of 24 gamesmanship next time around. 25 26 1 CIVIL NO. 11-1567 (SEC) Page 2 2 A court may issue an order to protect a party or person from annoyance, embarrassment, 3 oppression, or undue burden or expense . . . Fed. R. Civ. P. 26(c)(1). As relevant here, a party 4 seeking to quash a deposition in its entirety must show extraordinary or exceptional 5 circumstances. E.g., Prozina Shipping Co., Ltd. v. Thirty-Four Automobiles, 179 F.R.D. 41, 48 6 (D. Mass. 1998) (prohibiting taking of deposition is extraordinary measure for which moving 7 party has burden of showing extraordinary circumstances based on specific facts that would 8 justify such an order). If, however, [a] deponent is a high-level corporate officer who certifies 9 that he has no personal knowledge of the facts, the court may grant a protective order requiring 10 the deposing party to first seek discovery through less intrusive methods, e.g., from lower level 11 employees who are more likely to have direct knowledge. 6-26 Moore s Federal Practice - 12 Civil § 26.105 [2] [a] (citing, inter alia, Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) 13 (upholding issuance of protective order requiring plaintiff to depose other employees that 14 defendant indicated had more knowledge of facts before deposing corporate defendant s 15 president); Mulvey v. Chrysler Corp., 106 F.R.D. 364, 366 (D.R.I. 1985) (when then-Chrysler 16 president Lee Iacocca signed affidavit professing ignorance to information sought by plaintiffs, 17 court required discovery to proceed against Iacocca initially by interrogatory)). 18 If the movant meets its burden, the court may issue an appropriate protective order, including 19 an order forbidding the disclosure or discovery . . . . Fed. R. Civ. P. 26(c)(1)(A). 20 Viewing IBT s request under the totality of circumstances, see Patterson v. Avery 21 Dennison Corp., 281 F.3d 676, 681-682 (7th Cir. 2002), a protective order precluding the 22 deposition of Hoffa, who has filed an affidavit attesting to his lack of knowledge regarding the 23 discovery sought by the plaintiff, is warranted. See Thomas v. International Bus. Machs., 48 24 F.3d 478, 483 (10th Cir. 1995) (deposition of corporate officer in age discrimination action was 25 quashed when proposed deponent submitted an affidavit swearing that he lacked personal 26 knowledge of plaintiff and her work performance). The plaintiff s opposition contains no 1 CIVIL NO. 11-1567 (SEC) 2 explanation as to whether it first attempted to obtain the desired information through less 3 burdensome means. The plaintiff has likewise failed to convince this court that Hoffa s 4 deposition would yield otherwise inaccessible information. For instance, the plaintiff does not 5 explain why Hoffa s deposition is necessary in lieu of deposing a lower-level IBT executive. 6 See General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002) 7 (courts will often deny request to depose high-ranking corporate official when lower-ranking 8 executives have access to same information). Page 3 9 Moreover, the plaintiff s Notice of Deposition (Docket # 77-2, p. 6) is exceedingly 10 broad and hence unreasonable, as it fails to pinpoint the specific testimony sought to be elicited 11 from Hoffa. In sum, Hoffa, in his position as the President of the IBT, [i]s particularly 12 vulnerable to unwarranted harassment and abuse that [his] deposition may produce, and he has 13 a right to be protected from such harassment. Berning v. UAW Local 2209, 242 F.R.D. 510, 14 514 (N.D.Ind. 2007) (citations omitted). To be sure, this ruling does not constitute a total 15 prohibition from taking Hoffa s deposition. Rather, if the plaintiff can convincingly show that 16 the testimony of other IBT employees or that propounding interrogatories to Hoffa were 17 unsatisfactory, the Court will allow the taking of Hoffa s deposition. Salter, 593 F.2d at 651. 18 For the reasons stated, IBT s motion for protective order is GRANTED. 19 IT IS SO ORDERED. 20 In San Juan, Puerto Rico, this 25th day of September, 2012. 21 22 23 24 25 26 S/ Salvador E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge

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