United States District Court, S.D. California
AHMED S. ADAN, an individual, Plaintiff,
INSIGHT INVESTIGATIONS, INC., a California Corporation; and DOES 1-10 inclusive, Defendant.
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
William V. Gallo United States Magistrate Judge
parties in the above captioned matter have jointly moved the
Court for a determination of a discovery dispute.
Specifically, the parties' dispute surrounds the
depositions of Donna Cotter and Vanessa Cotes.
WITNESS DONNA COTTER
seeks a protective order to limit the questioning by
Plaintiff's counsel of Donna Cotter. Defendant argues
Plaintiff is seeking to depose Cotter as if she is a person
most knowledgeable (“PMK”) witness and, although
not designated as such, Defendant anticipates Plaintiff's
questioning may exceed the bounds of relevancy given that
Cotter is only a percipient witness having taken only a
single phone call from Plaintiff and sent one email to him.
Plaintiff argues he should not be limited in deposition
testimony but rather should be allowed to ask any and all
questions that are within the bounds of the Federal Rules of
Civil Procedure (“Rules”) and relevancy.
Rules authorize the Court, upon a showing of good cause, to
issue a protective order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. Fed.R.Civ.P. 26(c)(1). The party seeking a
protective order bears the burden of establishing good cause.
Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063
(9th Cir. 2004). Good cause is established where it is
specifically demonstrated that disclosure will cause a
specific prejudice or harm. Id. at 1063-64 (internal
quotation and citation omitted). Broad allegations of harm,
unsubstantiated by specific examples or articulated
reasoning, do not satisfy the Rule 26(c) test. Id.
Any protective order that issues must be narrowly tailored.
In re Bofl Holding, Inc. Securities Litigation, 318
F.R.D. 129, 133 (S.D. Cal. 2016.)
has not demonstrated any specific prejudice or harm but
rather has made broad allegations of potential harm. Given
this, Defendant has not satisfied the Rule 26(c) test.
Accordingly, Defendant's motion for a protective order is
DENIED. Since Cotter is a percipient
witness, she may be questioned as such. Of course, Cotter may
be examined about whether she followed company policy and
procedure in taking the call and sending the email, but she
is not a PMK and efforts by Plaintiff to expand her testimony
into areas rightfully in the realm of a PMK are prohibited.
The Court further admonishes the parties to follow the
Federal Rules of Civil Procedure regarding the relevance and
time restrictions of depositions.
WITNESS VANESSA COATES
seeks a protective order to bar the deposing of Vanesa
Coates. Defendant argues Coates deposition is irrelevant and
unduly burdensome. Defendant stated during the status
conference that under no uncertain terms did Coats have any
involvement in the auditing process during the time period
relevant to the case. Further, Defendant claims that
Plaintiff could have acquired the same discovery through
other means of discovery such as written interrogatories or
asking more specific questions of the PMK during his or her
deposition (but did not). Defendant claims these other forms
of discovery are far less burdensome and would reveal the
same information sought by Plaintiff.
seeks to depose Coates because Plaintiff believes she has
knowledge of Defendant's operating procedures,
specifically auditing. Plaintiff claims that although at
least one other witness has testified that Coates was not an
auditor for the time frame in question, Plaintiff has a right
to ask Coates herself when she started that position.
Federal Rules of Civil Procedure authorize the Court, upon a
showing of good cause, to issue a protective order to protect
a party or person from annoyance, embarrassment, oppression,
or undue burden or expense. Fed.R.Civ.P. 26(c)(1). The party
seeking a protective order bears the burden of establishing
good cause. Rivera, 364 F.3d at1063. In assessing
the motion, “the court should balance the costs and
burdens to each side.” U.S. v. $160, 066.98 from
Bank of Am., 202 F.R.D. 624, 626 (S.D. Cal. 2001).
balance, Defendant has shown there is a far less burdensome
discovery method by which Plaintiff can acquire the
information sought. Accordingly, the Court
GRANTS Defendants motion for protective
order barring the deposition of Coates.
foregoing reasons, IT ...