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Valerie Kline v. John Berry

June 25, 2012

VALERIE KLINE, PLAINTIFF,
v.
JOHN BERRY, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, DEFENDANT.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION

Many discovery motions have been filed with the Court in this case. This memorandum opinion addresses Defendant's Motion for a Protective Order to Preclude the Deposition of Richard Lowe and Special Agent Derek Holt [37] ("Def.'s Mot.") and Plaintiff's Motion to Stay Depositions and Motion for Order on Related Matters [38] ("Pl.'s Mot."). Plaintiff seeks to depose five individuals, Derek Holt, Richard Lowe, Claudio Benedi, Stephen Hickman and Janet Smith. (Pl.'s Mot. at 1.) Plaintiff originally scheduled the depositions on May 8-10, 2012, with Mr. Holt and Mr. Lowe being the first two depositions. (Id.) Defendant filed its Motion for a Protective Order on the evening of May 4, 2012 and the depositions were postponed until a ruling on Motion for a Protective Order could be reached.*fn1

I. BACKGROUND

This case is an employment discrimination action based on Plaintiff Valerie Kline's ("Plaintiff" or "Ms. Kline") employment at the Office of Personnel Management ("OPM") as a Management Analyst in the Publications Management Group. (Amended Compl. [3] at ¶ 1.) Plaintiff was hired into that role in 2002. (Id. at ¶ 13.) On March 29, 2006, Plaintiff's superiors received an e-mail raising concerns that, among other allegations, Ms. Kline was using her work computer inappropriately and was attempting to procure weapons and ammunition from someone she knew online. (Decl. of Inspector General Patrick E. McFarland [37-1] at ¶ 4; Pl.'s Opp. to Mot. For Protective Order [44] at 6.) Plaintiff was placed on paid administrative leave on April 5, 2006 pending an Office of the Investigator General ("OIG") investigation. (Id. at ¶ 5.) Plaintiff returned to work on June 20, 2006. (Amended Compl. at ¶ 45.)

Plaintiff's Amended Complaint includes five counts. First, Plaintiff alleges that she was discriminated against on the basis of race and sex when she was placed on administrative leave. (Id. at ¶ 62.) Second, Plaintiff alleges that she was placed on administrative leave in retaliation for filing EEO complaints against her superiors that were pending as of April 2006. (Id. at ¶ 64.) Third, Plaintiff alleges that, upon returning from administrative leave, her duties were diminished, moving from regulatory work and graphics projects to routine, administrative and clerical duties. (Id. at ¶ 66.) Fourth, Plaintiff alleges that she was discriminated against on the basis of sex when her regulatory duties were given to a male employee. (Id. at ¶ 68.) Fifth, Plaintiff alleges that she was retaliated against when, upon returning from administrative leave, she did not have the same equipment and software that she had prior to being placed on administrative leave. (Id. at ¶ 70.)

II. STANDARD OF REVIEW

Courts have broad discretion to resolve pending discovery matters. Fed. R. Civ. P. 26(b)(2)(C) (requiring the court to limit extent of discovery when "the burden or expense of the proposed discovery outweighs its likely benefit); see also Nu Image Inc.v. Does 1-22, 322, 799 F. Supp. 2d 34, 36-37 (D.D.C. 2011). This discretion extends to Rule 26(c), under which "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 . . . forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters." Fed. R. Civ. P. 26(c)(1). The party seeking the protective order has the burden of showing the good cause required by Rule 26(c). Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). Generally, courts regard the complete prohibition of a deposition as an "extraordinary measure [] which should be resorted to only in rare occasions." Id.

III. DISCUSSION

A. Special Agent Derek Holt

Defendant wishes to limit the scope of deposition questions asked of Derek Holt. (Def.'s Mot. at 1.) Agent Holt works for the Office of Inspector General ("OIG") and was the agent who handled the investigation into the allegations about Plaintiff. (Id. at 11.) The OIG issued a report regarding the investigation, and Plaintiff has seen that report, with some redactions. (Id. at 14.) Defendant does not seek a protective order preventing the deposition of Agent Holt; rather, it seeks to limit the scope of the deposition, preventing Plaintiff from inquiring about OIG investigations generally, and how the investigation was conducted in this case. (Def.'s Mot. at 15-16; Def.'s Reply at 4-5.) These topics include: (1) OIG's procedures for conducting investigations, (2) the decision-making process in determining the focus of investigations and (3) the process by which reports are finalized. (Id. at 16.)

In her opposition to Defendant's motion, Plaintiff states that: [b]y deposing [Agent] Holt, Plaintiff will seek to discover the truth about [Agent] Holt's findings and obtain evidence to support a finding that he failed to thoroughly and impartially investigate allegations unrelated to the weapons allegations, that he did not have the evidence to support many of his conclusions propounded in his report, and that he exceeded his authority and the scope of the investigation by reporting on matters that were nonprobative, irrelevant, inaccurate, and highly prejudicial.

(Pl.'s Opp. at 16.) Plaintiff takes issue with some of Agent Holt's statements in the report, stating that they "are generalizations based on stereotypical prejudices and not supported by fact," including "prejudicial statements about [Plaintiff's] website." (Id. at 15-16.) Finally, Plaintiff is looking to obtain the identity of the informant whose e-mail triggered the investigation. (Id. at 9.)

Defendant relies upon the "law enforcement investigative privilege" to support a limitation on the scope of Agent Holt's deposition. (Def.'s Mot. at 15.) The law enforcement investigative privilege is a qualified privilege. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). To assert the privilege, an agency must: (1) submit a formal claim of privilege by the head of the department that has control over the information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation of why it properly falls within the scope of the privilege. In re Sealed Case, 856 F.2d at 271; Singh v. South Asian Society of George Washington University, 06-cv-574, 2007 WL 1556669, *3 (D.D.C. May 24, 2007).

In support of limiting Agent Holt's deposition, Defendant submits a declaration from the Inspector General Patrick E. McFarland, who identified the information to be withheld and the justifications for withholding the information. (Decl. of Patrick McFarland, [37-1] at 3-5.) The OIG is the department that has control over the information and Mr. McFarland stated he was the decision maker in ...


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