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Funk v. Pinnacle Health Facilities XXXII, LP

United States District Court, D. Kansas

January 22, 2019

MARK FUNK, et al., Plaintiffs,



         Now before the Court is the Motion for Protective Order (Doc. 128) filed by Defendant Pinnacle Health Facilities XXXII, LP d/b/a Clearwater Nursing & Rehabilitation Center (hereinafter “Defendants”). Having reviewed the submissions of the parties, as well as related case filings, Defendant's motion (Doc. 128) is GRANTED in part and DENIED in part as more fully set forth below.


         The factual background of this case was summarized by the District Court in its Order denying Plaintiffs' Motion to Amend and granting Defendant's Motion to Dismiss Plaintiffs' negligence claim.

Plaintiffs, Mark Funk and Alan Funk, filed the present negligence and wrongful death suit against defendant, Pinnacle Health Facilities, based on Dorothy Funk's fall at the Clearwater Nursing and Rehabilitation Center in Clearwater, Kansas. From September 29, 2014, to December 1, 2014, Dorothy was a resident at the Clearwater Nursing facility.
Plaintiffs allege that on October 1, 2014, Clearwater's records indicate that Dorothy suffered a non-injury fall on the premises and her Care Plan was updated to say, ‘[p]rovide Dorothy with grabber to alleviate her reaching forward from her wheelchair . . . and endangering [her] safety.' Nine days later on October 10, the Care Plan added or initiated this goal: ‘Dorothy will remain free from significant injuries resulting from falls.' Plaintiffs additionally allege that this non-[injury] fall was not reported to Mark Funk, holder of Dorothy's durable power of attorney. Knowledge of the non-injury fall was not made known to Mark or Alan Funk until the medical records were provided after Dorothy's death.
Plaintiffs further allege that on December 1, 2014, Dorothy fell out of her wheelchair while reaching forward, fracturing her hip. According to the Clearwater EMS Report, the fall was unwitnessed, but a Clearwater staff member heard Dorothy screaming after the fall. December 1, 2014, was the last time that Clearwater Nursing provided care to Dorothy.

(Doc. 21, at 1-2.)

         Plaintiffs served their Rule 30(b)(6) deposition notice on October 4, 2018 (Doc. 94), more than a year into the discovery process, but six weeks before the close of discovery in this case. Pursuant to the notice, the deposition was to have occurred on October 18, 2018. (Id.) Defendant objected to the deposition on October 16, 2018. (Doc. 129-1.) Plaintiffs responded to the objections less than a month later, on November 14, 2018, two days prior to the close of discovery. (Doc. 129-2.) On November 16, 2018, Plaintiffs noticed their intent to take Defendant's Rule 30(b)(6) deposition on December 4, 2018 - which is 8 days after discovery closed in this case. (Doc. 118.) Defendant filed the present motion on December 3, 2018, the day before the deposition was to occur. (Doc. 128.)

         Defendant argues that Plaintiffs' deposition notice is “improper” because the deposition was noticed to occur after discovery had closed. (Doc. 129, at 2.) Defendant also argues that the deposition should be quashed because “it is impractical, overly broad, and harassing.” (Id.) Defendant contends that “[t]he amended deposition notice lacks the ‘painstaking specificity' required by law and it subjects Defendant to an impossible task.” (Id.) As such, Defendant asks the Court to enter a protective order “prohibiting this improper attempt to run-up Defendant's fees and costs and to otherwise unduly burden and harass Defendant with unnecessary and irrelevant attempts at discovery.” (Id.)


         I. Legal Standards.

         A. Standards for Discovery.

         Fed.R.Civ.P. 26(b) states that

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at state 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

         B. Rule 30(b)(6) Depositions.

         A Rule 30(b)(6) deposition allows an opposing party to question a corporate defendant by noticing the deposition of the corporation's representative as to certain designated topics. Pursuant to the rule,

[a] party may in [its deposition] notice ... name as the deponent a public or private corporation ... and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. … The persons so designated shall testify as to matters known or reasonably available to the organization.

Fed.R.Civ.P. 30(b)(6). “In a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation.” Sprint Communications Co. L.P. v., Inc., 236 F.R.D. 524, 527 (D. Kan. 2006).

         As such, “to allow [Rule 30(b)(6)] to effectively function, the requesting party 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.” Id., at 528. Thereafter, the responding party is required to “make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the deposing party] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed by [the deposing party] as to the relevant subject matters.” Id. (citing Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D.Minn.2000) (quotations omitted)).

         C. Standards for Protective Orders.

         Protective Orders are governed by Fed.R.Civ.P. 26(c), “which confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). See also Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995); Terry v. Unified Gov't of Wyandotte Co., No. 09-2094-EFM-KGG, 2011 WL 795816 (D. Kan. March 1, 2011). The rule provides, in relevant part:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.... The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
* * *
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
* * *
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; ....

Fed.R.Civ.P. 26(c)(1).

         As stated above, Defendant argues that Plaintiffs' deposition notice is “improper” because the deposition was noticed to occur after discovery had closed and because, as noticed, the deposition is “it is impractical, overly broad, and harassing.” (Doc. 129, at ...

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