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Nucal Foods, Inc v. Quality Egg LLC; et al

December 18, 2012



This matter comes before the court upon the motion for a protective order filed by the Hillandale defendants*fn1 to stay the deposition of Hillandale's corporate officer, Gary Bartness, noticed subject to Federal Rule of Civil Procedure 30(b)(6). (ECF 162.) The court also addresses the Hillandale defendants' request for a sealing order to protect personal medical information that accompanies their motion for a protective order. (ECF 168).


The instant matters concern a cross-claim between two defendants. In the underlying action, plaintiff NuCal filed its amended complaint on January 30, 2012 against eight defendants - Quality Egg, DeCoster Revocable Trust ("DeCoster Trust"), Austin "Jack" DeCoster, DeCoster Enterprises LLC ("DeCoster Enterprises"), Environ/Wright County Inc. ("Environ"), Hillandale Farms of Iowa, Inc. ("Hillandale Farms"), Hillandale Iowa LLC ("Hillandale LLC"), and Hillandale Farms of PA, Inc. ("Hillandale PA") - alleging eight causes of action: 1) breach of implied warranty of merchantability against Quality Egg, DeCoster Trust, Jack DeCoster, DeCoster Enterprises, Environ, and Hillandale PA; 2) breach of implied warranty of fitness for particular purpose against Quality Egg, DeCoster Trust, Jack DeCoster, DeCoster Enterprises, Environ, and Hillandale PA; 3) breach of express warranty against Quality Egg, DeCoster Trust, Jack DeCoster, DeCoster Enterprises, Environ, and Hillandale PA; 4) fraud against all defendants; 5) negligence against all defendants; 6) equitable indemnification against all defendants; 7) negligent interference with prospective economic advantage against all defendants; and 8) unfair competition*fn2 against all defendants.

Hillandale filed a cross-complaint against co-defendant Quality Egg on February 29, 2012, seeking indemnification. (ECF 67.) On May 7, 2012, Quality Egg filed a motion to dismiss this cross-complaint, which is still pending. (ECF 125.)

On April 27, 2012, the assigned magistrate judge granted the Hillandale defendants' motion for a protective order staying Federal Rule of Civil Procedure*fn3 30(b)(6) depositions due to the medical incapacitation of Gary Bartness, Hillandale's general manager. (ECF 121.) Plaintiff filed a request for reconsideration of this order on May 2, 2011. (ECF 123.) This court denied that request as moot on October 5, 2012, as the court had granted Hillandale's motion to amend the scheduling order and extended the discovery deadline by four months, thereby lifting the protective order stay as to the Hillandale 30(b)(6) deposition on May 16, 2012 (ECF 136). (ECF 167.)

On August 21, 2012, NuCal served a deposition notice on Hillandale to conduct 30(b)(6) depositions on September 12 and 13, 2012. (Toeniskoetter Decl. ¶ 7, ECF 162) Due to medical incapacitation, Mr. Bartness did not appear; Duane Mangskau, another Hillandale employee, served as Hillandale's sole 30(b)(6) deponent. (Id. ¶ 9.) Quality Egg asserts that Mr. Mangskau, to prepare for his deposition, met with Mr. Bartness "a couple of times over the last week or so" at work. (Quality Egg Opp'n to Protective Order at 9-10 n.2, ECF 171.) Quality Egg further avers that Mr. Mangskau was not prepared to respond to certain significant topics for which Mr. Bartness was the only Hillandale employee with knowledge. (Id. at 3.) In particular, Mr. Mangskau testified that he did not know, but that Mr. Bartness likely would know, the specific terms of the agreement between Hillandale and Quality Egg regarding the Alden facility and who would be in charge of egg production there. (Id.) Consequently, on September 14, Quality Egg noticed Hillandale for the deposition of Mr. Bartness, set for September 20 or on some other mutually agreeable date. (Toeniskoetter Decl. Ex. G.) Hillandale objected, and the parties conferred on a solution but could not come to an agreement. (ECF 171 at 3.) Quality Egg contends that Hillandale notified Quality Egg only the day before the deposition that Mr. Bartness would not attend. (Id. at 4.) Quality Egg held the deposition on September 20 anyway; no one from Hillandale appeared. (Id. at 5.) On September 24, 2012, the Hillandale defendants filed the present motion for a protective order to stay the 30(b)(6) deposition of Mr. Bartness, whom Hillandale asserts remains medically incapacitated. (Hillandale Mot. Protective Order, ECF 162.) Accompanying the Hillandale motion are affidavits and exhibits containing personal medical information about Mr. Bartness. The Hillandale defendants also filed a motion to seal or redact these documents to protect Mr. Bartness's privacy. (ECF 168.)


A. Standard for Protective Orders

Rule 26(c) authorizes a court, for "good cause," to "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."

FED. R. CIV. P. 26(c)(1). A court can forbid disclosure altogether or place other limitations and conditions upon the disclosure. FED. R. CIV. P. 26(c)(1)(A)-(H). This provision "emphasizes the complete control that the court has over the discovery process." 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2036, at 163-64 (3d ed. 2010). A court has "considerable latitude in focusing on the nature of the harm advanced" to justify an order, and "may be as inventive as the necessities of a particular case require." Id. at 164-65. A court must balance the competing interests involved in determining whether good cause has been shown. In re Coordinated Pretrial Proceedings, 669 F.2d 620, 623 (10th Cir. 1982); see also Frideres v. Schiltz, 150 F.R.D. 153, 156-58 (S.D. Iowa 1993) (considering factors such as the deponent's health risks, the doctor's affidavit, deponent's status as a nonparty, the parties' right to information, the importance and singularity of the deponent's testimony, and possible limitations the court could impose).

The party requesting a protective order must demonstrate specific facts that support the request, rendering "conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one" insufficient. Dunford v. Rolly Marine Serv. Co., 233 F.R.D. 635, 636-37 (S.D. Fl. 2005) (citing Gulf Oil v. Bernard, 452 U.S. 89, 102 n.16 (1981); see also Lexington Ins. Co. v. Sentry Select Ins. Co., No. 1:08CV1539 LJO GSA, 2009 WL 4885173, at *3 (E.D. Cal. Dec. 17, 2009) (applying this same standard). For example, a doctor's affidavit, attesting to an 80-year-old man's life-threatening and severely disabling brain disorder, is enough to meet this standard. Dunford, 233 F.R.D. at 637; see also In re Tutu Water Wells Contamination CERCLA Litig., 189 F.R.D. 153, 155-56 (D. V.I. 1999) (finding that the doctor's thorough affidavit - which detailed the 81-year-old's coronary artery disease, angina pectoris, and paroxysmal atrial fibrillation and stated the doctor's belief that a deposition would present a "distinct threat of stroke or heart attack" - warranted a protective order). On the other hand, doctors' letters and notes that do not indicate what information was provided to the doctor about the proposed deposition and whether, were the deposition parameters known, the deponent would still be unable to participate, do not meet this standard. Id. at 636; Cary v. Auto. Ins. Co. of Hartford, Conn., 838 F. Supp. 2d 1117, 1124-25 (D. Colo. 2011). A request to deny adeposition altogether is extraordinary and is usually denied. WRIGHT, MILLER & MARCUS § 2037, at 169; Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979).

B. Application

The Hillandale defendants renew their request to excuse Mr. Bartness from any deposition because his health remains poor. (ECF 162 at 3.) Hillandale includes a letter from Mr. Bartness's treating physician, Dr. Derek Johnson; the letter states that Mr. Bartness's current health issues make his participation in a deposition impossible. (Toeniskoetter Decl. Ex. N.)

Dr. Johnson concludes that Mr. Bartness cannot be deposed solely because he would have difficulty responding to questions (Id.) The Hillandale defendants aver that Mr. Bartness's illness, as framed by Dr. Johnson's letter, ...

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