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Vanessa Coleman v. District of Columbia

July 13, 2012

VANESSA COLEMAN, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM ORDER

I. INTRODUCTION

Plaintiff objects to two of the Magistrate Judge's discovery orders. First, plaintiff objects to the protective order precluding the deposition of D.C. Fire and Emergency Medical Services ("FEMS") Deputy General Counsel Thelma Chichester. Pl.'s Objection, ECF No. 113. Second, plaintiff objects to the order denying an enlargement of the scheduling order. Pl.'s Objection, ECF No. 122. The Court MODIFIES IN PART the order precluding the deposition of Thelma Chichester and AFFIRMS the order denying an enlargement of the scheduling order.

II. STANDARD OF REVIEW

The Court must modify or set aside any portions of a magistrate's non-dispositive orders that are found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LCvR 72.2(c). This means that the Court will affirm the finding of a magistrate judge "unless on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed." Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289, 292 (D.D.C. 2000) (quoting reference omitted).

III. ANALYSIS

A. Deposition of FEMS Deputy General Counsel Thelma Chichester

The Magistrate Judge issued a protective order precluding the deposition of FEMS Deputy General Counsel Thelma Chichester. Minute Order, Mar. 15, 2012. Chichester is the FEMS in-house agency counsel assigned to this case. Def. Opp'n, ECF No. 117, at 8.

The broad discovery rules contained in the Federal Rules of Civil Procedure allow oral depositions on "any non-privileged matter that is relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b)(1). Nevertheless, the discovery rules are not an open-ended invitation to subject a party to irrelevant, unduly burdensome, or otherwise improper discovery requests. See Fed. R. Civ. P. 26(b)(2)--(3), (c). Accordingly, judges may "prevent the proposed deposition when the facts and circumstances are such that it creates an inappropriate burden or hardship." In re Subpoena Issued to Dennis Friedman, 250 F.3d 65, 70 (2d Cir. 2003) (Sotomayor, J.).*fn1

When a party seeks to depose opposing counsel, the normally permissive discovery rules become substantially less so.*fn2 Depositions of opposing counsel undermine attorney-client communications, present unique opportunities for harassment, disrupt opposing counsel's preparation, may lead to opposing counsel's disqualification, and may spawn collateral litigation on issues of privilege, scope, and relevancy. Sterne Kessler Goldstein & Fox PLLC v. Eastman Kodak Co., 276 F.R.D. 376, 380--82 (D.D.C. 2011). Courts therefore presume that deposing opposing counsel creates an inappropriate burden or hardship, and the burden is on the party seeking the deposition to show otherwise. See Hickman v. Taylor, 329 U.S. 495, 512 (1947); Shelton, 805 F.2d at 1327; Nguyen v. Excel Corp., 197 F.3d 200, 208--09 (5th Cir. 1999); In re Friedman, 350 F.3d at 71; Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 263 F.R.D. 1, 8 (D.D.C. 2009); Sterne Kessler, 276 F.R.D. at 380. Relevant considerations include "the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted." In re Friedman, 350 F.3d at 72; see also Sterne Kessler, 276 F.R.D. at 380--82.

Plaintiff seeks to depose Attorney Chichester on three categories of communications: communications with plaintiff's counsel, e-mails disclosed during the discovery process, and communications with PFC Associates doctors. The Court will address each of these categories in turn.

First, plaintiff seeks to depose Attorney Chichester concerning certain "communications between Plaintiff's counsel and [Attorney] Chichester." Pl.'s Objection, ECF No. 113, at 14. Bluntly, this argument is ridiculous and a waste of the Court's time. One party does not get to depose another on its "legal justifications" for taking a position. Id. Depositions are for discovering facts; they are not a free pass to preview opposing counsel's legal strategy. Further, how "information related to" these communications "can only be obtained from [Attorney Chichester]" escapes the Court. Id. Plaintiff's counsel admits that it was present during these communications and presumably has personal knowledge of them-therefore plaintiff has no "need to depose" Attorney Chichester on this topic. In re Friedman, 350 F.3d at 72. Therefore, the Magistrate Judge was correct in precluding Attorney Chichester's deposition on this category of communications.

Second, plaintiff seeks to depose Attorney Chichester about certain e-mails that FEMS disclosed relating to Coleman. ECF No. 113, at 12--14. Plaintiff's counsel attempted to depose Liles Hutchinson, the former FEMS EEO officer, about these e-mails. It appears that while Hutchinson did answer questions that were unrelated to her conversations with Attorney Chichester, Hutchinson refused to discuss conversations she had with those attorneys based on attorney-client privilege and work product. ECF No. 113, at 12. Defendant's counsel also instructed Hutchinson not to discuss a conversation she had with Fire Chief Rubin. Id. at 13. Because of Hutchinson's privilege claim, plaintiff argues that "despite her best efforts, [she] has been unable to ascertain certain facts relating to the e-mails . . . ." ECF No. 113, at 12.

Plaintiff's "best efforts" do not seem to include filing a motion to compel Hutchinson's testimony. If plaintiff had a problem with the defendant's privilege claims related to Hutchinson, plaintiff could have filed a motion to compel with the Magistrate Judge. Plaintiff filed a motion to compel production of certain documents, ECF No. 67, but this motion had nothing to do with Hutchinson's deposition. Plaintiff cannot complain about lack of access to information she did not move to compel when she had the chance. Deposing Attorney ...


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