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In re Nelson

United States District Court, Ninth Circuit

June 27, 2013

In Re Ryan Uehling Kelly Nelson, Plaintiff, Millennium Laboratories, Inc., et al., Defendants. Pending in the United States District Court for the District of Arizona as Case No. 2: 12-cv-01301-SLG


BARBARA A. McAULIFFE, Magistrate Judge.

Pending before the Court is Millennium Laboratories, Inc.'s ("Defendants" or "Millennium") Petition for Motion to Compel Ryan Uehling ("Uehling") to Answer Deposition Questions. (Doc. 1.) Uehling is a third-party witness in Nelson v. Millennium Laboratories, Inc., Case No. 2: 12-cv-01301-SLG (D. Ariz., filed June 18, 2012), the underlying litigation.

In addition to the Joint Discovery Statement filed on May 17, 2013, the parties have submitted various supplemental briefs in support of their respective positions. (Doc. 7, 11, 12, 16, 18, 20.) The Court heard oral arguments on June 21, 2013. (Doc. 21.) Counsel Donald Fischbach and Andrew Slater appeared in person for Uehling. Counsel Michael Loucks and Ryan Eddings appeared in person for Millennium. Id. Having carefully considered the parties' submissions, oral argument, and the record in this case, the Court GRANTS Millennium's Motion to Compel.


This dispute arises out of discovery in litigation currently pending in the United States District Court for the District of Arizona, Nelson v. Millennium Laboratories, Inc., No. 2:12-cv-01301-SLG (D. Ariz. filed June 18, 2012). In that case, Plaintiff Kelly Nelson ("Nelson"), a former Millennium employee, asserts various employment-related claims (age and sex discrimination, sexual harassment, retaliation and various tort-based claims). Among these claims, Nelsen alleges Millennium retaliated against her for complaining about Millennium's improper business practices.

Ryan Uehling is not a party to the Arizona case. Uehling, a former Millennium employee, previously held the position of Regional Business Director in the West region and directly supervised Nelson prior to his termination from Millennium. Nelson identified Uehling as a witness in support of her claims against Millennium. Uehling resides in this District.

Uehling appeared for deposition on April 2, 2013, pursuant to notices and subpoenas served by both Nelson and Millennium. During direct examination by Nelson's counsel, Uehling testified, inter alia, that Nelson had been a model employee while reporting to him at Millennium and that in his view, there was no job-related basis for her termination. Uehling also testified that Nelson had expressed concerns to him regarding certain business practices that she had been directed to participate in as a Millennium employee.

Millennium's counsel thereafter questioned Uehling regarding his knowledge of those business practices. Millennium also sought to explore Uehling's potential bias. Uehling, however, refused to answer 135 questions on grounds of relevance and various privileges. Specifically at issue in this Motion are two privileges that were asserted to 61 deposition questions: (1) a non-designated statutory privilege based upon "certain statutory obligations to not reveal certain information;" and (2) attorney-client privilege.[1]


A. Legal Standard

Rule 26(b) states that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Relevance requires only that the evidence have "any" tendency to prove or disprove "any" consequential fact. This test incorporates two separate components: (1) Logical relevance, meaning the evidence must have some tendency, however slight, to make any fact more or less probable; and (2) Legal Relevance, meaning the evidence must relate to a fact "of consequence" to the case, i.e., will the "fact" that the evidence is offered to establish help in determining some issue in the case? See, Guthrey v. California Dept. of Corrections and Rehabilitation, 2012 WL 2499938 (E.D. Cal. 2012), citing, Jones & Rosen, Federal Civil Trials and Evidence (2011) Evidence, para. 8:111, p. 8B-2. "Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.'" Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D.Cal.2005) (quoting Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D.Cal.1998)).

Rule 30 governs counsel's behavior during a deposition. In particular, Rule 30(c) provides:

Examination and cross-examination of witnesses may proceed as permitted at the trial....
An objection at the time of the examination-whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

Fed. R. Civ. P. 30(c)(1) & (2).

B. Millennium's Motion to Compel

Millennium's questions can be grouped into four categories: (1) Actions Uehling took with Millennium property after his termination; (2) Whether attorneys instructed Uehling to take certain actions with Millennium property; (3) Information and directives provided by United States Attorneys in connection to Uehling's government/statutory privileges; and (4) meetings Uehling had with attorneys representing Millennium's competitor, Ameritox. Uehling refused to answer the 61 questions falling in these categories, claiming attorney-client and statutory privileges.

1. Statutory Privilege[2]

The nature of Uehling's statutory privilege is not a matter of public record. Indeed, Uehling insists he cannot publically discuss the explicit basis for the privilege, nor can he discuss any subject matter related to the basis for this privilege.[3] Millennium suspects this statutory privilege relates to Uehling's status as a possible relator in a qui tam action, potentially filed under seal somewhere in the United ...

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