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Nwauzor v. The GEO Group Inc.

United States District Court, W.D. Washington, Tacoma

November 14, 2019

UGOCHUKWU GOODLUCK NWAUZOR, et al., Plaintiffs,
v.
THE GEO GROUP, INC., Defendant.

          ORDER ON STATE'S MOTION FOR PROTECTIVE ORDER QUASHING SUBPOENAS FOR DEPOSITION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the State of Washington's Motion for Protective Order Quashing Subpoenas for Deposition. Dkt. 195. The Court has considered the pleadings filed regarding the motion, the remaining file and the file in Washington v. GEO Grp., Inc., Western District of Washington No. 17-5806 RJB, which is joined with this case for liability purposes.

         For the reasons provided below, the non-party State of Washington's motion (Dkt. 195) should be denied, in part, and granted, in part.

         I. FACTS RELEVANT TO THE MOTION

         On September 26, 2017, the Plaintiffs filed this class action, alleging that the Defendant, The GEO Group, Inc. (“GEO”), failed to comply with the State of Washington's Minimum Wage Act (“MWA”) regarding work performed by civil detainees at the Northwest Detention Center. Dkt. 1. On August 6, 2018, the undersigned certified a class in this case of “all civil immigration detainees who participated in the Voluntary Work Program [(“VWP”)] at the Northwest Detention Center from September 26, 2014 and the date of final judgment in this matter.” Dkt. 114. The Northwest Detention Center is owned and operated by GEO. Dkt. 1. As is relevant here, in GEO's Answer to Plaintiffs' First Amended Complaint, GEO asserts that it “has immunity from this lawsuit” as one of its affirmative defenses. Dkt. 92.

         On September 20, 2017, the State filed a case against GEO, maintaining that GEO failed to pay civil detainees participating in the VWP in accord with MWA. Washington v. GEO Grp., Inc., Western District of Washington No. 17-5806 RJB, Dkt. 1. As one of its affirmative defenses in Washington, GEO maintains that it is entitled to intergovernmental immunity. Washington v. GEO Grp., Inc., Western District of Washington No. 17-5806 RJB, see e.g., Dkt. 162. In December of 2018, the Court denied GEO's motion for summary judgment on its defense of intergovernmental immunity (Dkt. 162) and denied its motion for reconsideration of the denial of the motion for summary judgment (Dkt. 165). Washington v. GEO Grp., Inc., Western District of Washington No. 17-5806 RJB. Discovery in Washington continued.

         On May 28, 2019, this class action case was consolidated with the State case, Washington v. GEO Grp., Inc., Western District of Washington No. 17-5806 RJB, for liability purposes only. Dkts. 174 and 175. The Court ordered that the deadlines in the cases would remain unchanged: the discovery deadline in Washington was June 21, 2019 and the discovery deadline in this case, Nwauzor, was November 6, 2019 (later extended to November 22, 2019). Id.

         As is relevant to this motion, GEO took three depositions during discovery in Washington: the State's Rule 30(b)(6) designees (from the Department of Labor and Industries (“L&I”) and the Governor's Office) and the State's expert on unjust enrichment. Dkt. 196, at 2.

         After the close of discovery in Washington and after giving the parties another opportunity to address the defense of intergovernmental immunity, on October 9, 2019, the Court reaffirmed its prior ruling and denied GEO's motion for summary judgment on that defense. Washington v. GEO Grp., Inc., Western District of Washington No. 17-5806 RJB, Dkts. 306 and 322. On October 28, 2019, GEO's motion for reconsideration, or in the alternative, to reopen discovery and move for summary judgment, was denied in Washington. Id., Dkt. 326. That order specially provided that “it appear[ed] inappropriate to reopen discovery and motion practice.” Id.

         On October 16, 2019, GEO issued five Fed.R.Civ.P. 45 subpoenas in Nwauzor, seeking testimony from L&I's Director, Joel Sacks; L&I's Deputy Director, Elizabeth Smith; L&I's Senior Program Manager, Lezlie Perrin; Washington Department of Health and Human Services (“DSHS”) Assistant Secretary, Sean Murphy; and a Rule 30(b)(6) designee. Dkt. 196-1, at 1-20. The State objects to these subpoenas. Dkt. 196.

         On October 21, 2019, the undersigned wrote the parties in both cases, setting an early pretrial conference in both Washington v. GEO and this case. Dkt. 193. The October 21, 2019 letter to the parties inadvertently stated that the cases “are not now joined for any purpose.” Dkt. 193. These cases were joined by the May 28, 2019 Orders (Dkts. 174 and 175) and the letter to the parties was not intended, and did not, operate as an order dissolving the joinder. The Court apologizes for any confusion the letter caused. The May 28, 2019 Orders remain in full effect. The January 10, 2020 preliminary pretrial conference will be held as scheduled.

         After meeting and conferring to attempt to resolve the State's objections to the five October 16, 2019 subpoenas, this motion followed. Dkt. 196.

         The State now moves to quash all five subpoenas issued for Nwauzor, arguing that they are an improper attempt to reopen discovery in the State case, Washington. Dkt. 195. The State maintains that GEO is attempting to “retroactively correct strategic decisions it made” in the Washington case and to “circumvent the Court's scheduling orders.” Id. The State maintains that the subject matters identified as topics for discussion include information regarding GEO's intergovernmental immunity defense. Id. The State points out that if permitted to conduct these subpoenas, they would operate as one-way discovery after the discovery cut-off in Washington. Id. The State maintains that GEO's subpoenas for L&I's Director Sacks and L&I's Deputy Director Smith should be quashed under the “Apex doctrine.” Id. (See page 7). It moves to quash GEO's subpoena to L&I Senior Program Manager Perrin, arguing that GEO already deposed an L&I designee, that Ms. Perrin has no personal knowledge of the claims brought here, and so, her testimony is not relevant and disproportional to the needs of the case. Id. The State moves to quash GEO's subpoena of DSHS Assistant Secretary Murphy, asserting that GEO seeks irrelevant information and Mr. Murphy has no personal knowledge of GEO's practices at the Northwest Detention Center. Id. The State also argues that GEO's subpoena for an omnibus Rule 30(b)(6) subpoena should be quashed because all of the questions GEO seeks to ask were either asked or should/could have been asked of the Rule 30(b)(6) deponents in Washington. Id.

         GEO responded and opposes the motion. Dkt. 197. It argues that the depositions are timely under the Nwauzor case schedule - discovery doesn't close in that case until November 22, 2019. Id. It argues that the State has failed to show that the depositions will cause a specific prejudice and maintains that the information it seeks is relevant. Id. GEO asserts that the State has already prepared deponents in Washington, so the time to prepare for these depositions is reduced. Id. It argues that the Apex doctrine does not preclude the deposition of either L&I Director Sacks or L&I Deputy Director Smith. Id. GEO asserts that L&I Senior Program Manager Perrin's and DSHS Assistant Secretary Murphy's testimony is relevant so their depositions should be permitted to proceed. Id. It maintains that it seeks some different information in the Rule 30(b)(6) deposition then it did from the designees in Washington. Id. GEO argues that the ...


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