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Cotton v. Costco Wholesale Corp.

United States District Court, Tenth Circuit

July 24, 2013

WAYNE A. COTTON, Plaintiff,
v.
COSTCO WHOLESALE CORPORATION., Defendant.

MEMORANDUM AND ORDER

K. Gary Sebelius U.S. Magistrate Judge

This matter comes before the court upon Defendant’s Motion for a Protective Order (ECF No. 24). Costco seeks a protective order limiting the scope of Plaintiff Wayne A. Cotton’s amended Rule 30(b)(6) deposition notice. For the reasons stated below, the motion is granted in part and denied in part.

This is an employment discrimination action in which Mr. Cotton has brought claims against his employer, Costco Wholesale Corp. Mr. Cotton alleges he was subjected to illegal discrimination on the basis of race, a racially hostile work environment, and was disciplined and removed from his position as loss control associate based on his race and in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission. He asserts claims under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 24 U.S.C. § 2000e, et seq.; and the Kansas Act Against Discrimination, K.S.A. § 44-1001, et seq. The present dispute involves Mr. Cotton’s amended Rule 30(b)(6) deposition notice. Costco contends many of the subjects included in the notice are objectionable because they seek testimony on irrelevant information, are overly broad, or are duplicative of other discovery requests.

Fed. R. Civ. P. 26(c) governs protective orders. The rule states, “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]”[1] The district court has broad discretion to fashion the scope of a protective order.[2] Despite this substantial latitude, “a protective order is only warranted when the movant demonstrates that protection is necessary under a specific category set out in Rule 26(c).”[3] The party seeking a protective order bears the burden of establishing good cause for it.[4]To do this, the movant must make “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”[5]

In the context of a protective order seeking to limit or prohibit the deposition of an organization or business entity, the court must be mindful of Rule 30(b)(6)’s requirements. A deposition notice or a subpoena for a Rule 30(b)(6) deposition “must describe with reasonable particularity the matters for examination.”[6] This means that the party requesting the deposition “must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.”[7] This is because the business entity has a duty to produce a deponent competent to testify about the subjects.[8] An overly broad Rule 30(b)(6) deposition notice “subjects the noticed party to an impossible task.”[9]

I. Subject Nos. 1, 2, and 5

The first topic listed on the amended notice asks Costco to produce a representative knowledgeable about, “The structure of Defendant’s human resources department including the names, educational background and prior employment of all people who are in Defendant’s corporate human resources department that had any communication with plaintiff or the warehouse located at 12221 Blue Valley Parkway, Overland Park, Kansas (‘Warehouse’) about claims of discrimination, retaliation or harassment from January 1, 2009[, ] to present.”[10] The second topic asks Costco to produce a representative knowledgeable about, “The structure of Defendant’s human resources department including the names, educational background and prior employment of all people who are in Defendant’s human resources department at the Warehouse from January 1, 2009[, ] to present.”[11] Subject No. 5 seeks similar information: “From January 1, 2009[, ] to present, discuss the structure of Defendant’s corporate management team and the management team at Defendant’s warehouse including, the names, race, educational background and prior employment of all people who are on the corporate management team that have responsibility for the Warehouse and the management team at Defendant’s Warehouse.”[12]

Costco contends these subjects are objectionable because Mr. Cotton uses the vague terms “structure” and “including.” Costco fails to explain why it believes the term “structure” is vague or ambiguous. As for the term “including, ” Costco argues that this term suggests that the enumerated subjects are not exclusive. In support of this argument, Costco cites a 2000 opinion from this district, Reed v. Bennett, in which the court found a Rule 30(b)(6) deposition notice was over broad when it stated that the areas of inquiry would include certain topics but would not be limited to these topics.[13] That is not the case here. Mr. Cotton’s use of the word “including” provides examples of subtopics. The notice does not state the deposition is not limited to the topics listed. The court rejects this argument.

Costco also contends these subjects are improper because they seek information about individuals with whom Mr. Cotton has had no contact—including information about these individuals’ educational backgrounds and prior employment. Costco contends this information is not relevant because Mr. Cotton has had no contact with many of these individuals. Costco also argues that Subject No. 1 is not appropriate because it could seek information about other forms of discrimination. The plain language of Request No. 1 does not seek any information about discrimination. It seeks information about the structure of the HR department—including the identities of those who had contact with Mr. Cotton or other warehouse employees about claims of discrimination, retaliation, or harassment.

The court rejects the remainder of Costco’s arguments about relevance. “If a proposed Rule 30(b)(6) topic is irrelevant, it may constitute an undue burden sufficient for a protective order.”[14] But the court broadly construes relevance at the discovery stage, and “a request for discovery should be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the claim or defense of any party.”[15] Costco makes conclusory statements about relevance without providing a more detailed explanation as to why these topics should be excluded or limited. These arguments are not sufficiently specific to warrant a protective order limiting or prohibiting inquiry into these topics.

Costco also suggests that the court should prohibit this deposition topic on the grounds that it can be more easily obtained through other sources—namely, the identities of certain individuals working at Costco. While it is true that the court retains the inherent authority to control discovery and order that it be conducted in a certain manner, Costco has not shown that providing testimony on this topic would result in annoyance, embarrassment, oppression, or undue burden or expense. For these reasons, the court denies Costco’s motion for a protective order limiting or prohibiting testimony regarding these subjects.

II. Subjects Nos. 3, 4, 6, 8, and Related Document Request Nos. 4, 6, and 7

These topics and document requests deal with Costco’s computer applications, systems, and networks as well as Costco’s efforts to retain, identify, and produce electronically stored information (ESI) in this case. Costco argues these topics should be limited or prohibited because they are overly broad, seek information that is not relevant, are unduly burdensome, and fail to describe the area of inquiry with reasonable particularity.

Costco argues these topics are inappropriate because Mr. Cotton has not established there has been any actual or suspected spoliation of evidence in this case, and therefore, deposition testimony concerning Costco’s production of ESI is not appropriate at this time. Costco correctly notes that in some instances, courts will grant protective orders to shield companies from annoyance, embarrassment, oppression, undue burden or expense that would result from discovery regarding the companies’ efforts to locate and produce ESI. In support of this position, Costco cites Orillaneda v. French Culinary Institute, an unreported 2011 opinion from the Southern District of New York. In Orillaneda, the magistrate judge granted a protective order prohibiting certain requests for production of documents that were relevant to the manner in which the defendant had searched for and maintained its ESI.[16] The magistrate judge reasoned that the plaintiff’s requests did not seek relevant information because the plaintiff had failed to make a sufficient showing that the defendant’s document production was deficient. Document production requests on the issue of how a defendant went about producing other discovery documents would conceivably be more burdensome than providing testimony on the subject or answering an interrogatory seeking similar information. Respectfully, it is somewhat difficult for a litigant to evaluate an opposing party’s efforts to search for and produce ESI without some information regarding the steps taken to accomplish this task. That is not to say that the court is willing to allow broad inquiry into this subject or that the court would be disinclined to grant a protective order ...


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