United States District Court, W.D. Washington, Tacoma
ORDER ON STATE'S MOTION FOR PROTECTIVE ORDER
QUASHING SUBPOENAS FOR DEPOSITION
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
reasons provided below, the non-party State of
Washington's motion (Dkt. 195) should be denied, in part,
and granted, in part.
FACTS RELEVANT TO THE MOTION
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.
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.
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).
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.
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.
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.
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.
meeting and conferring to attempt to resolve the State's
objections to the five October 16, 2019 subpoenas, this
motion followed. Dkt. 196.
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.
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 ...