United States District Court, D. Kansas
SIXTH AMENDED SCHEDULING ORDER AND ORDER RULING
P. O'Hara U.S. Magistrate Judge
have arisen in this employment-discrimination case related to
the deposition of defendant's Fed.R.Civ.P. 30(b)(6)
representative. Defendant has filed a motion for a protective
order asking the court to preclude testimony on certain
noticed topics, to direct plaintiffs' counsel to
coordinate calendars with defense counsel in advance of
future case scheduling, and to award defendant its
attorney's fees incurred in bringing the motion (ECF No.
181). Plaintiffs have filed a counter-motion asking the court
to compel the representative's attendance at a
deposition, and to sanction defendant for failing to produce
the representative at an earlier-noticed deposition (ECF No.
184). The undersigned U.S. Magistrate Judge, James P.
O'Hara, held a hearing on the motions on February 20,
2018, at which the parties supplemented their written
arguments. For the reasons stated on the record at the
hearing, the court grants defendant's motion for a
protective order as to noticed Topic 1(f) and Topic 4, but
denies the motion as to Topic 1(d)(3) and Topic 3, and in all
other respects; and the court denies plaintiffs' motion
to compel and for sanctions in all respects.
court made the following specific rulings on the record:
deposition of defendant's Rule 30(b)(6) representative
shall go forward on March 9, 2018. The deposition topics shall
be limited to those identified in the notice filed on January
10, 2018 (ECF No. 172), except as modified below. This
deposition, like all others in this case, may not exceed
seven hours, unless otherwise agreed to by the parties, as
determined in the court's original scheduling order (ECF
Deposition Topic 1(d)(3) shall go forward unmodified.
Defendant's objection to this topic is overruled.
Deposition Topic 1(f) is both vague and overbroad. It's
vague because, among other things, the plaintiffs have
different claims (race-based for all three plaintiffs, race
and age-based for plaintiff Moye, and race and sex-based for
plaintiff McGee), making it unclear which of defendant's
employees would be classified as “similarly
situated” to the plaintiffs. But the parties have
stipulated the term “similarly situated” in Topic
1(f) should be deemed limited to the reasons other employees
were suspended and/or terminated. Topic 1(f) is overbroad
because it has no geographic or temporal limits. As discussed
on the record, the parties have stipulated Topic 1(f)
geographically should be limited to defendant's Kansas
City, Kansas terminal. Though plaintiffs proposed a much
longer temporal scope, the court ruled Topic 1(f) must be
further limited temporally to January 1, 2010, through the
respective date of termination of each plaintiff.
Deposition Topic 3, referencing certain personnel policies of
defendant, shall stand. Defendant's objection is
Defendant's objection to Deposition Topic 4 is sustained.
Simply listing more than 1, 200 pages of documents as a
“topic” is overbroad on its face. It is
impractical for a party to be asked to prepare a corporate
representative on such a vague topic covering hundreds of
pages of documents.
Defendant's request for attorney's fees incurred in
bringing the motion for a protective order after the
date for which the deposition was noticed is denied.
deposition of Paul Frayer shall go forward on February 23,
2018, as noticed (ECF. No. 177). The deposition of Bruce Moss
shall go forward on March 7, 2018, as stipulated on the
record. Other than the three depositions discussed in this
order, there shall be no further discovery (in written or
deposition form) in this case, unless agreed to by counsel.
Plaintiffs' request for attorney's fees incurred
because their counsel made the inefficient decision to send
two attorneys to a two-day deposition that counsel had been
told eleven days earlier could not go forward (because
neither the witness nor defense counsel were available on the
date noticed) is denied. Although the ultimate decision
remains for the presiding U.S. District Judge, Carlos
Murguia, the undersigned strongly believes plaintiffs should
not be permitted to recover any fees or expenses for this
wasted time even if they ultimately win this case.
Fifth Amended Scheduling Order (ECF No. 169) is modified as
a. The final pretrial conference is rescheduled from March
16, 2018, to April 19,2018, at 9:00
a.m., in the U.S. Courthouse, Room 223, 500 State
Avenue, Kansas City, Kansas. Unless otherwise notified, the
undersigned will conduct the conference. No. later than
April 9, 2018, ...