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Low v. Whitman

May 30, 2002

SETH THOMAS LOW, PLAINTIFF,
v.
CHRISTINE TODD WHITMAN, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case is before me for all purposes including trial. Ready for resolution is Defendant's Motion for Protective Order Preventing the Depositions of Ray Spears and Ann Goode and Certification of Conference ("Defs. Mot."). For the reasons articulated below, defendant's motion will be granted in part and denied in part.

BACKGROUND

Plaintiff, Seth Thomas Low ("Low"), claims that he was discriminated against on the basis of gender and age when he was not selected for a GS-15 position with the United States Environmental Protection Agency ("EPA"). Defendant seeks a protective order preventing the plaintiff's from taking the deposition of Ray Spears, Deputy Chief of Staff of the EPA ("Spears"). *fn1

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 26(c) provides:

Upon motion by a party or by the person from whom discovery is sought, accompanied by 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, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .

Any party seeking to limit discovery under Rule 26(c) must demonstrate that, on balance, the harm to it outweighs its opponent's interest in discovering the facts:

To do so, the movant must articulate specific facts to support its request and cannot rely on speculative or conclusory statements . . . Moreover, in the case of a protective order related to deposition testimony, courts regard the complete prohibition of a deposition as an "extraordinary measures [ ] which should be resorted to only in rare occasions" . . . Accordingly, courts apply a balancing test weighing the movant's proffer of harm against the adversary's significant interest" in preparing for trial. Jennings v. Family Management, 201 F.R.D. 272, 275 (D.D.C. 2001)(citations omitted).

II. Defendant's Position

Defendant argues that Spears does not have any knowledge relevant to the claims or defenses in this matter because, in October 1997, Spears had nothing to do with the complained of non-selection. Id. at 6.

Defendant further contends that plaintiff has no need for the testimony of Spears since he has already deposed: (1) David O'Connor, Director of the Office of Human Resources and Organizational Services at the time of plaintiff's non-selection and now Deputy Assistant Administrator for the Office of Administration and Resources Management, (2) Michael Stahl, Deputy Assistant Administrator of the Office of Administration and Resources Management, and (3) Sylvia K. Lowrance, Principal Deputy Assistant Administrator of the Office of Enforcement and Compliance Assurance. Defendant represents that, like O'Connor, Stahl and Lawrence were extensively examined about diversity action plans. Defs. Reply at 6. In addition, plaintiff will have the opportunity to take the deposition of Ann Goode, the one time Director of the Office of Civil Rights; Goode too can speak to the significance of these plans to the manner in which EPA made its promotion decisions.

Third, defendant argues that senior government officials such as Spears should not be subjected to depositions in routine cases since public policy favors allowing high level officials to perform their jobs without the burdensome task of providing ...


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