United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR PROTECTIVE ORDER
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant EHW Constructors'
Motion for Protective Order Striking Plaintiff's Noted
Fed.R.Civ.P. 30(b)(6) Deposition. Dkt. #96. On February 11,
2019, Ballard noted a deposition for February 19, the
discovery cutoff date. EHW now requests that the Court strike
this deposition for untimely notice. For the reasons
explained below, the Court DENIES EHW's Motion.
tale of petty discovery squabbles, neither side is blameless.
This case was filed in June of 2016 and removed to federal
court in July. Dkt. #1. Since then, discovery has been
extended twice; once by stipulation, and once unilaterally by
Ballard with EHW's acquiescence. Dkt. #39; Dkt. #53.
According to the Declaration of Erin Varriano, Ballard's
attorney, Ballard served its first set of Interrogatories and
Requests for Production on June 25, 2018. Dkt. #102, at 1.
EHW's August response to Ballard's discovery requests
appears to have been heavy on objections and light on
substance, including substance in the form of produced
light of this, Ballard requested a discovery conference,
which was held on January 18, 2019. At the conference, the
parties discussed the shortcomings of EHW's discovery
response. Id. at 2. Then, according to Varriano, she
informed MacDonald that Ballard would need to take
depositions, including a Rule 30(b)(6) deposition of EHW.
Id. at 3. EHW denies that Varriano expressed
“any cognizable intent to take depositions”
during the discovery conference. Dkt. #103, at 6.
was out of state for personal reasons for some of the time
immediately after the conference. Dkt. #102, at 3. When she
returned on Monday, February 11, at 5:04 PM she emailed
MacDonald with an attached Notice of 30(b)(6) Deposition.
Dkt. #97, Ex. 1. The notice scheduled the deposition for
February 19, the discovery cutoff date. It also expressed
Ballard's willingness to alter the date and time. Given
that the notice was sent late in the afternoon, EHW had eight
calendar days and five business days to prepare for the
deposition. As EHW points out, it happened to be snowing on
February 11 in the Puget Sound. Dkt. #96, at 4-5.
notice provided that Ballard intended to depose the four
corporate defendants: EHW Constructors, Skanska USA Civil
Inc., American Bridge Company, and Nova Group, Inc. Dkt. #97,
Ex. 1. The notice also identified eleven broad topics for the
deposition, including the negotiation of the subcontract,
access to documents, operations and management at the project
site, and EHW's alleged defenses. Id.
not respond to the deposition notice until February 14, when
it sent Ballard a letter arguing that the notice was
deficient. Dkt. #97, Ex. 2. The letter also contained what
amounted to a counteroffer agreeing to let both parties hold
a 30(b)(6) deposition after the discovery cutoff date.
Id. On February 15, the parties conferred over the
telephone and Ballard rejected EHW's proposition. Dkt.
#96, at 5-6. Instead, Ballard suggested continuing the case
and moving the trial date back. In lieu of this, Ballard
proposed scheduling a Local Rule 16 conference with the Court
rather than engaging in motion practice. EHW rejected these
ideas and filed this Motion on February 19. Minutes after
filing its motion for protective order on February 19, EHW
produced 600, 000 pages of documents that had not previously
been provided in response to the June discovery request. Dkt.
#104, Ex. 1.
Rule 30, “A party who wants to depose a person must
give reasonable written notice to every other party.”
Fed.R.Civ.P. 30(b)(1). “What constitutes reasonable
notice depends on the circumstances of each case.”
Gamboa v. King Cty., No. C06-1034RSM, 2008 WL
509324, at *1 (W.D. Wash. Feb. 22, 2008). “Commonly,
courts find that notice of at least five days is sufficient
for a party's deposition.” Id.;
Leitzke v. Nicole, No. C15-439 TSZ, 2016 WL 1687963,
at *4 (W.D. Wash. Apr. 27, 2016). However, what constitutes
reasonable notice may vary depending on the complexity of the
case and number of depositions requested. See Doe v.
Trump, 329 F.R.D. 262 (W.D. Wash. 2018) (holding that 21
days before the discovery cutoff was a reasonable notice for
two individual depositions and two Rule 30(b)(6)
depositions); Kilby v. CVS Pharmacy, Inc., No.
09CV2051-MMA(KSC), 2017 WL 1682695, at *1 (S.D. Cal. Apr. 26,
2017); (holding that ten calendar days was insufficient
notice given the “number and scope of topics included
in the . . . [n]otice); Meeks v. Nunez, No.
13CV973-GPC(BGS), 2016 WL 2931097, at *2 (S.D. Cal. May 19,
2016) (holding that two calendar days was unreasonable).
“An obvious fact to be considered is the time between
the notice and the deposition, with an eye toward preparation
and travel.” In re Sulfuric Acid Antitrust
Litig., 231 F.R.D. 320, 327 (N.D. Ill. 2005).
Ballard's deposition notice came late in the litigation,
“the ‘eleventh hour' of a discovery period is
still within the discovery period, and there is no basis for
denying a discovery request simply because it is served
toward the end of the designated period.” Doe,
329 F.R.D. 262. Notice of eight calendar days and five
business days minimally satisfied Rule 30's
reasonableness requirement. See Gamboa, 2008 WL
509324, at *1; Leitzke, 2016 WL 1687963, at *4. The
topics proposed for the deposition were expansive, but not so
expansive as to make preparation impossible.
arguments to the contrary do not stand up to close scrutiny.
EHW makes much of the “historic snowstorms”
underway when Ballard provided notice. However, the existence
of snow does not automatically alter the business schedule.
Many Seattle businesses stayed open during the snow and there
is no reason EHW's firm could not have done the same.
EHW's insistence that Ballard sought to depose
“four foreign entities” is similarly
unpersuasive. As the First Amended Complaint makes clear, EHW
is a joint venture comprised of the other three
defendants: Skanska, American Bridge, and Nova. Deposing EHW
therefore necessitated deposing the other defendants. And
while the defendants are technically “foreign
corporations, ” where a corporation is registered or
headquartered often means little about where their
representatives are located. When it comes to providing
specific information about the witnesses' locations and
the difficulty of travelling to Seattle, EHW is notably
attempt to “negotiate” with Ballard by demanding
its own 30(b)(6) deposition two business days before the
cutoff and then rejecting Ballard's suggestion to
schedule a hearing with the Court also weighs against EHW. If
EHW truly believed it needed additional time to prepare for
the deposition, the proper course would have been to suggest
a date to Ballard and then request that the Court extend the
cutoff. Instead, EHW ...