United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTIONS TO COMPEL
KENNETH G. GALE U.S. MAGISTRATE JUDGE
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.
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
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.)
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.
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.”
Standards for Discovery.
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.
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,
Rule 30(b)(6) Depositions.
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. Theglobe.com, Inc., 236
F.R.D. 524, 527 (D. Kan. 2006).
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)
Standards for Protective Orders.
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; ....
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,