United States District Court, D. Kansas
RUBYE L. DAVIS, Plaintiff,
UNIFIED SCHOOL DISTRICT NO. 512, Defendant. RUBYE L. DAVIS, Plaintiff,
GINNY LYON and JOHN MCKINNEY, Defendants.
P. O'Hara U.S. Magistrate Judge.
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).
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.
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.” Davis asserts she
“became physically ill after this very enduring and
stressful deposition.” 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
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
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.
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.
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. 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.