Citation. __ F.Supp.3d __, 2018 WL 2948021 (S.D. Ohio, June 13, 2018)
Plaintiff sued Defendant, alleging that Defendant violated the Americans with Disabilities Act of 1990 and the Fair Housing Act of 1968. During discovery, Defendant moved for protective order and Plaintiff moved to compel discovery.
The party who is moving for a protective order must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and the party cannot rely on mere conclusory statements.
Rule 30(c)(2) requires a deponent to continue her testimony over objection unless she has asserted a privilege, is enforcing a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Plaintiff sued Defendant, alleging that Defendant blocked funding for and financing of 60 units of project-based funded affordable housing for veterans in violation of the Americans with Disabilities Act of 1990 and the Fair Housing Act of 1968. Defendant moved for protective orders barring the depositions of five individuals. Plaintiff filed a motion to compel, asking for an order that would compel the deposition testimony of an individual and admonish defense counsel to refrain from speaking and coaching objections, instructing witnesses not to answer, and making baseless objections.
Must a movant for a protective order articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and the party cannot rely on mere conclusory statements?
Does Rule 30(c)(2) require a deponent to continue her testimony over objection unless she has asserted a privilege, is enforcing a limitation ordered by the court, or to present a motion under Rule 30(d)(3)?
Yes. The court held that the factor analysis weighed in favor of granting Plaintiff’s motion to compel, and that the information sought is discoverable (as it is relevant, proportional to the needs of the case, and is not privileged.
The scope of discovery is traditionally quite broad, and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant. In filing for a motion to compel, the moving party bears the initial burden of proving that the information sought is relevant. Rule 30(c)(2) requires a deponent to continue her testimony over objection unless she has asserted a privilege, is enforcing a limitation ordered by the court, or to present a motion under Rule 30(d)(3). If the proponent meets its initial burden, then the burden shifts to the party resisting production to show that the information sought is either not relevant or is so marginally relevant that the presumption of disclosure is outweighed by the potential for undue burden or harm. On the other hand, the party who is moving for a protective order to limit discovery must show good cause by articulating specific facts showing clearly defined and serious injury resulting from the discovery sought. The party cannot rely on mere conclusory statements. In addition, when considering whether the information sought is proportional to the needs of the case, courts must consider the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Here, with respect to the motion for protective orders, the court held that Defendant failed to show that the information sought were not relevant, not proportional to the need of the case, or would impose an undue burden or expense. First, the letter of Mr. Prude (Defendant’s interim CEO) showed that Defendant committed 33 project-based vouchers, which was at the heart of Plaintiff’s claims. Therefore, the deposition of Mr. Prude would likely reveal relevant and thus discoverable information about Plaintiff’s claims. Second, the deposition of Ms. Smith – who was involved with Plaintiff’s accommodation request – would likely produce relevant information. The fact that the information would be inadmissible did not be matter because information need not be admissible in evidence to be discoverable. Third, the depositions of Ms. Smelkinson and Mr. Keyser would likely produce relevant information because they were allegedly involved in the facts giving rise to the lawsuit and possessed information regarding whether Defendant could lawfully honor its initial commitment to the 33 project-based vouchers or whether Defendant could grant Plaintiff’s request for reasonable accommodation.
More importantly, the information sought was proportional to the needs of the case. First, the case implicated important national policies about eradicating homelessness, especially for veterans, and providing permanent housing for them. Second, the amount in controversy here according to Plaintiff’s damages expert would exceed $15,000,000, an amount which Defendant did not suggest otherwise. Third, Defendant likely either possessed or had access to most or all of the information Plaintiff sought. Fourth, it was unclear based on the current information, whether the parties’ resources were the same. Fifth, all four individual deponents were involved with the events underlying Plaintiff’s claims and likely have information regarding whether Defendant improperly employed shifting rationales for denying Plaintiff’s request for the housing vouchers. Lastly, Defendants only provided broad allegations of significant travel expenses and substantial additional litigation expenses. These broad statements do not suffice to show that Defendant would suffer undue burden/expense and do not establish good cause for a protective order. For these reasons, the information sought is discoverable and Defendant’s motion for protective order is denied.
With respect to Plaintiff’s motion to compel, the court noted that Defendant’s counsel did not show any valid reason for repeatedly interrupting the deposition questioning of an individual such as Ms. Heapy who had been an attorney for nearly 15 years by then. Additionally, because objecting on the basis of relevance did not constitute an exception under Rule 30(d)(3) that would allow a deponent to not continue her testimony, Plaintiff could send Ms. Heapy written deposition questions to which she must respond within 2 weeks of receiving them. However, the court refused to award Plaintiff their attorneys’ fees because Plaintiff was not ultimately prevented from conducting a “fair examination of the deponent.” For that reason, the Plaintiff’s motion to compel discovery and request for attorneys’ fees and expenses is granted in part and denied in part.