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Davis v. Unified School District No. 512

United States District Court, D. Kansas

June 14, 2018

RUBYE L. DAVIS, Plaintiff,
v.
UNIFIED SCHOOL DISTRICT NO. 512, Defendant. RUBYE L. DAVIS, Plaintiff,
v.
GINNY LYON and JOHN MCKINNEY, Defendants.

         CONSOLIDATED CASES

          ORDER

          James P. O'Hara U.S. Magistrate Judge.

         In these consolidated cases, Rubye L. Davis, a teacher, sues her former employer, Unified School District No. 512 (the “District”), and individual defendants Ginny Lyon and John McKinney, for race discrimination under 42 U.S.C. § 1983. Davis alleges that because of her race, defendants reassigned her teaching position from Shawnee Mission East High School (“SME”) to Shawnee Mission West High School (“SMW”). Davis has filed a motion for protective order (ECF No. 178) regarding the notice of her deposition filed by Lyon and McKinney on June 6, 2018 (ECF No. 177).

         On June 14, 2018, the undersigned U.S. Magistrate Judge, James P. O'Hara, conducted a hearing on Davis's motion. Davis appeared through counsel, Charles S. Scott, Jr. The District, Lyon, and McKinney appeared through counsel, J. Drew Marriott and Kristen Michael O'Neal. For the reasons discussed at the hearing and set forth below, the motion is denied.

         Davis seeks a protective order precluding counsel for Lyon and McKinney from examining her about certain enumerated topics, claiming they've been the subject of extensive deposition testimony and written discovery. Prior to the initiation of Davis's suit against Lyon and McKinney, the District deposed Davis through the same counsel that now represent the individual defendants. According to Davis, that deposition, conducted on February 1, 2017, “lasted over [eight] hours and the transcript of this deposition is over 400 pages with voluminous pages of exhibits.”[1] Davis asserts she “became physically ill after this very enduring and stressful deposition.”[2] Davis argues that it would be “duplicative, cumulative, and it would cause [her] an excessive burden and expense for counsel for McKinney and Lyon to take her deposition” without the limitations as to scope and subject matter set forth in her proposed protective order.[3]

         Duty to Confer

         As an initial matter, the court finds Davis failed to satisfy the duty-to-confer requirement contained in D. Kan. Rule 37.2 before filing the instant motion. D. Kan. Rule 37.2 states,

The court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37 … unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Every certification required by Fed.R.Civ.P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.

         On June 6, 2018, in response to several inquiries from defense counsel regarding Davis's availability for deposition, Davis's counsel responded, via email:

Ms. Davis is agreeable for you to take her deposition on June 27 under the conditions of the attached proposed protective order. If you are agreeable to this order, please inform me and I will finalize it for our signatures. If you are not agreeable, I will file a motion with the court to adopt and enter this order.[4]

         Davis asserts that defense counsel did not respond to the above request, and instead, later that same day, filed a deposition notice without any agreement as to a protective order limiting the scope or subject matter of her deposition. Davis then filed the instant motion for protective order.

         As McKinney and Lyon observe, Davis's counsel has previously been advised in this litigation that “e-mailing a single letter to the opposing party” and “repeating a position and requesting or demanding compliance” fail to satisfy the requirements of Rule 37.2.[5] Indeed, Davis's counsel made no effort to “converse, confer, compare views, consult and deliberate” with defense counsel prior to filing the instant motion. Although the court could deny Davis's motion solely on this basis, the court concludes the motion should also be denied on its merits.

         Davis's Proposed ...


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