United States District Court, W.D. Washington, Tacoma
ORDER ON DISCOVERY MOTIONS
J. BRYAN UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Safeway, Inc.,
d/b/a Haggen Food and Pharmacy's (“Haggen” or
“Defendant”) Motion for Protective Order (Dkt.
23) and Haggen's Motion to Compel Documents Refreshing
Plaintiff's Memory and to Resume Deposition (Dkt. 21).
The Court has considered the pleadings filed regarding the
motions and the remaining file.
14, 2018, Plaintiff Avery Simmons filed this employment
discrimination case in Thurston County, Washington, Superior
Court, in connection with her employment at Haggen's
Olympia, Washington store. Dkt. 1-2. Haggen now moves for an
order protecting its Fed.R.Civ.P. 30 (b)(6) deponent from
having to testify about certain matters identified in the
Plaintiff's Rule 30 (b)(6) deposition notice. Dkt. 23.
Haggen also moves for an order compelling Simmons to produce
a typed document that she asserted she used to refresh her
memory during her deposition and an order allowing Haggen to
proceed with a second, limited deposition. Dkt. 21. For the
reasons provided below, Haggen's motion for a protective
order (Dkt. 23) should be granted, in part, and denied, in
part; its motion to compel and for leave to conduct a second
limited deposition (Dkt. 21) should be continued to June 4,
BACKGROUND FACTS, PROCEDURAL HISTORY, AND SPECIFIC FACTS
RELATED TO THE PENDING DISCOVERY MOTIONS
to the Amended Complaint, Haggen hired the Plaintiff on
February 16, 2017. Dkt. 12, at 2. She asserts that she was
injured at work in August of 2017 and filed a worker's
compensation claim. Id. The Plaintiff maintains that
the Defendant issued a “Personnel Action Notice”
about her workplace injury because she filed her workers'
compensation claim. Id.
October 16, 2017, the Plaintiff alleges that another employee
“sexually harassed Plaintiff in the form of unwanted
touching and sexual luring.” Dkt. 12, at 2. She asserts
that she followed the Defendant's “written
anti-harassment policy by reporting her co-workers'
sexually-harassing behavior.” Id. The
Plaintiff maintains that after her report, the Defendant
issued two “Personnel Action Notices for conduct that
occurred before the Plaintiff complained of the
harassment.” Id. She states that
Defendant's Human Resources Department, “without
following its own policy by investigating, told Plaintiff
there was no issue.” Id., at 3. The Plaintiff
asserts that the Defendant did not follow its own policy and
failed to address the behavior. Id. She maintains
that she “reasonably believed she had no choice but to
quit;” she did so on October 24, 2017. Id.
Plaintiff asserts claims against Haggen for hostile work
environment, discrimination, and retaliation under Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e, et.
seq., and the Washington Law Against Discrimination, RCW
49.60, et. seq. Dkt. 12, at 3-4. She also makes
claims for claim suppression and wrongful termination under
Washington common law. Id. The Plaintiff seeks
injunctive relief, damages, attorneys' fees, and costs.
deadline for discovery motions was May 13, 2019, the
discovery deadline is June 3, 2019, the dispositive motions
deadline is July 2, 2019, and the trial is set to begin on
September 30, 2019. Dkt. 18. The parties have been engaging
in discovery, including responding to written discovery,
on-going production of documents, and noting and taking
depositions. See e.g. Dkts. 24, and 29.
FACTS RELATED TO MOTION FOR PROTECTIVE ORDER
the day on Friday, May 10, 2019, the Plaintiff served the
Defendant with a Fed.R.Civ.P. 30 (b)(6) Notice of Deposition,
identifying 14 topics and 50 subtopics. Dkt. 25-1. On Sunday,
May 12, 2019, the Defendant emailed the Plaintiff, objecting
to the notice. Dkt. 25, at 3-4. The parties met and conferred
by telephone, to discuss the scope of the Rule 30 (b)(6)
notice and to see if they could agree to an extension of the
discovery motion deadline, which was the next day.
Id. The parties were unable to resolve all the
issues and were not able to agree to extend the deadline.
Id. Their call to the Court did not result in a
resolution. Dkt. 24. The Defendant's motion for a
protective order followed. Dkt. 23. After the motion was
filed, the parties met and conferred; of the 14 topics in the
Notice of Deposition, they were able to come to an agreement
regarding Topics No. 1, 3, 6, 8, 9, 11, 12, and 14. This
order addresses the remaining topics at issue.
FACTS RELATED TO MOTION TO COMPEL AND FOR FURTHER DEPOSITION
December 10, 2018, Plaintiff's deposition was taken for
around four hours. Dkt. 22, at 1, and Dkt. 22-1, at 3-12.
During her deposition, the Plaintiff acknowledged that she
reviewed a page-and-a-half document, typed by her attorney,
to refresh her memory of the events surrounding this case.
Dkt. 22-1, at 4. Defense counsel asked the Plaintiff whether
she recalled “what the statement says in it, ”
and the Plaintiff's counsel instructed her not to answer
on the grounds of attorney-client privilege and work-product
doctrine protection. Id., at 5. The Plaintiff
testified that the document was created from her own notes of
the events, taken before she consulted legal counsel, and
then reorganized and typed by her attorney after they met.
Dkt. 27-1, at 11-12. She testified that the typewritten
version (that she used to refresh her memory) was not
different, in a way that is important, to her handwritten
version. Dkt. 27-1, at 12. During the deposition, counsel for
Defendant indicated that they may seek to depose Plaintiff
again after production of the document. Dkt. 21-1, at
5. After the deposition, the Plaintiff sent the
Defendant a copy of her handwritten notes, but did not send
the typed version. Dkt. 27-2. The parties met and conferred
and were unable to resolve the issue. Dkt. 22, at 1-2.
STANDARD ON DISCOVERY GENERALLY
Civ. p. 26 (b)(1) provides:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties 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 stake
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
court should and ordinarily does interpret
‘relevant' very broadly to mean matter that is
relevant to anything that is or may become an issue in the
litigation.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351, n.12 (1978)(quoting
4 J. Moore, Federal Practice ¶ 26.56 , p. 26-131 n.
34 (2d ed. 1976)).
RULE 30 (b)(6) AND STANDARD ON MOTION FOR PROTECTIVE
Civ. P. 30 (b)(6) “Notice or Subpoena Directed to an
Organization, ” provides in relevant part that:
“[i]n its notice or subpoena, a party may name as the
deponent a public or private corporation . . . and must
describe with reasonable particularity the matters for
examination.” Under Fed.R.Civ.p. 26 (b)(2)(C),
On motion or on its own, the court must limit the frequency
or extent of discovery otherwise allowed by these rules or by
local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted
by Rule 26 (b)(1).
pursuant to Rule 26 (c)(1), for good cause, the court may
“issue an order to protect a party or person from . . .
oppression, or undue burden or expense, including . . .
forbidding the disclosure or discovery . . . [or] limiting
the scope of disclosure or discovery.” Fed.R.Civ.p. 26
(c)(1)(A) and (D).
MOTION FOR PROTECTIVE ORDER - TOPICS IN DISPUTE IN THE 30
(b)(6) NOTICE OF DEPOSITION AND MOTION FOR ATTORNEYS'
the parties fully briefed the motion for a protective order,
and then met and conferred for a second time, Topic Nos. 2,
4, 5, 7, 10, and 13 of the deposition notice remain in
dispute. Each of these topics is addressed below, along with