Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. No. 01-cv-00799-PSF-MEH RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

DEFENDANT'S MOTION FOR A PROTECTIVE ORDER Pursuant to Rules 7 and 26(c) of the Federal Rules of Civil Procedure and Rules 7.1 and 30.2 of the Local Civil Rules for the United States District Court for the District of Colorado, Defendant, the Office of Senator Ben Nighthorse Campbell ("Defendant"), hereby requests that this Court enter a protective order preventing Plaintiff from seeking discovery from Defendant prior to this Court's decision on Defendant's Amended Motion to Stay Proceedings Pending the Decision of the Supreme Court in Office of Senator Mark Dayton v. Hanson, Docket No. 124, and issuance of a Scheduling Order for this case. Pursuant to Local Rule 7.1, on February 20, 2007, as more fully described below, counsel for Defendant contacted Plaintiff's counsel in a reasonable, good-faith effort to resolve the disputed matter. Plaintiff's counsel declined to consent to the relief requested herein by Defendant. The bases for this motion are as follows.

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 2 of 7

BACKGROUND On January 19, 2007, this Court conducted an initial scheduling conference and directed the parties to file a Joint Proposed Scheduling Order outlining their proposed discovery time periods.1 Later that same day, the United States Supreme Court took an appeal in a matter that addresses issues material to Plaintiff's complaint herein. See Office of Senator Mark Dayton v. Hanson, No. 06-618, 2007 WL 123682 at *1 (U.S. Jan. 19, 2007) (hereinafter "the Dayton Appeal").2 Given the potentially case-dispositive effect that a Supreme Court ruling in the Dayton Appeal could have on this case, on February 8, 2007, Defendant filed an Amended Motion to Stay Proceedings Pending the Decision of the Supreme Court in Office of Senator Mark Dayton v. Hanson (hereinafter "Amended Motion To Stay"). Docket No. 124. Pursuant to Rule 26 of the Federal Rules of Civil Procedure, on February 9, 2007, Defendant served its Initial Disclosures upon Plaintiff. The Initial Disclosures described, by category and location, all documents that are in Defendant's possession, custody or control which it may use to support its claims or defenses. See Fed.R.Civ.P. 26(a)(1)(B).

The parties filed their Joint Proposed Scheduling Order on January 29, 2007. Docket Nos. 119/120. The Dayton Appeal, which will be heard by the Supreme Court on April 24, 2007, presents the question of whether the Speech or Debate Clause of the U.S. Constitution poses a jurisdictional bar to an employment lawsuit brought under the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. §§ 1301-1438 (2000). The Court also directed the parties to brief and argue the issue of whether the underlying lawsuit is rendered moot by the expiration of Senator Dayton's term of office. Both of these issues have been raised previously by Defendant and could be case-dispositive to Plaintiff's complaint. 2
2

1

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 3 of 7

On February 14, 2007, counsel for Plaintiff sent an e-mail to Defendant's counsel requesting copies of the documents described in Defendant's Rule 26 Initial Disclosures as well as a privilege log. See February 14, 2007 email, attached hereto as Exhibit 1. By letter dated February 20, 2007, (attached hereto as Exhibit 2), counsel for Defendant declined Plaintiff's request for the following reasons. First, Defendant had just filed its Amended Motion to Stay in which Defendant had requested a stay of all proceedings, including discovery. Therefore, Plaintiff's request for documents and a privilege log prior to this Court's ruling on the Amended Motion to Stay was premature. Second, the parties remain in dispute as to when discovery should commence in this matter, as set forth in the parties' Joint Proposed Scheduling Order. See Docket Nos. 119/120. As explained to the Court and Plaintiff's counsel during the January 19, 2007, teleconference, lead counsel for Defendant soon will be out of the office on maternity leave.3 Therefore, Defendant proposed in the Joint Proposed Scheduling Order that this Court schedule the start of the written discovery, other than initial disclosures, for May 16, 2007, with depositions held in abeyance until June 15, 2007. In its February 20, 2007, correspondence to Plaintiff's counsel, Defendant's counsel noted that its proposal was an attempt at compromise because Plaintiff proposed that the parties start discovery immediately, while lead counsel for Defendant's maternity leave will run beyond May 16, 2007. Having offered a reasonable compromise, Defendant requested that Plaintiff not insist on the production of the requested documents and privilege log until the Court ruled on the

3

Lead counsel for Defendant's maternity leave will begin on March 1, 2007. 3

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 4 of 7

Amended Motion to Stay and entered a Scheduling Order for this case. Defendant also informed Plaintiff that it would request a protective order should Plaintiff continue to seek the requested documents and privilege log. On February 21, 2007, Plaintiff's counsel informed Defendant by email that they would not waive any production of documents and that Defendant should seek a protective order from this Court. See February 21, 2007, email, attached hereto as Exhibit 3. ARGUMENT Defendant may seek an order from this Court to protect it from enduring undue burden and expense as a result of Plaintiff's discovery demands. See Fed.R.Civ.P. 26(c). The filing of a motion for a protective order pursuant to Rule 26(c) shall "stay the discovery to which the motion is directed until further order of the court." D.C.COLO.LCivR 30.2; Esparza v. Bridgestone/ Firestone, Inc., 200 F.R.D. 654, 655 (D. Colo. 2001). Here, Defendant's Amended Motion To Stay is pending before this Court and the parties are briefing this issue per this Court's February 15, 2007, order. Docket No. 125. Granting Defendant's request for a protective order until such time that the Court issues a decision on that motion would relieve Defendant from spending a great deal of time and expense in responding to Plaintiff's request for documents and privilege log, when it may not be necessary to do so should the Court issue a stay of all proceedings and/or the Supreme Court issues an opinion that proves favorable to Defendant. Kutilek v. Gannon, 132 F.R.D. 296, 298 (D. Kan. 1990) ("It is appropriate for a court to stay discovery until a pending dispositive motion is decided, especially where the case is likely to be finally concluded as a result of the ruling thereon; [and] where the facts sought through uncompleted discovery would not affect the resolution of the motion . . . ."); 4

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 5 of 7

McConnell v. Pollack, No. CIV.A. 99-WM-159, 1999 WL 33218579, at *6 (D. Colo. Nov. 12, 1999) (discovery stayed as to an individual defendant pending ruling of case-dispositive issue), copy attached in Group Exhibit 4. Moreover, Plaintiff's request for documents and a privilege log ignores the fact that the parties are in dispute as to when discovery should commence. Instead, Plaintiff has decided to proceed with discovery per her proposed schedule and not wait until this discovery matter is resolved by the Court, as if Defendant's proposed discovery schedule is meaningless or not entitled to any consideration. Should a protective order not be granted, Defendant would endure the undue burden it has attempted to avoid through its proposed discovery schedule in order to respond fully to Plaintiff's request for documents and a privilege log prior to the start of its lead counsel's maternity leave. Resolving the parties' dispute as to when discovery should commence should occur before Defendant is forced to incur that undue burden and expense. See Cook v. Rockwell Int'l Corp., 935 F. Supp. 1452, 1470 (D. Colo. 1996) (protective order granted where compliance with discovery schedule for production of documents would be unduly burdensome). Finally, the parties are at the early stages of discovery and the time period requested by Defendant for this protective order is not unreasonable. Therefore, it is unlikely that Plaintiff will be prejudiced or otherwise harmed by deferring discovery for that period of time. See Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Civ. A. No. 90-1121, 1990 WL 157900, at *1 (D.D.C. Oct. 3, 1990) (motion for a protective order and a stay of the proceedings granted where the parties had not yet engaged in extensive discovery and the time period requested for the protective order was reasonable), copy attached in Group Exhibit 4. 5

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 6 of 7

CONCLUSION For the reasons stated above, Defendant respectfully requests that the Court issue an order protecting Defendant from undue burden and expense by prohibiting Plaintiff from seeking discovery from Defendant prior to this Court's ruling on Defendant's Amended Motion to Stay Proceedings Pending The Decision by the Supreme Court in Office of Senator Mark Dayton v. Hanson and issuance of a Scheduling Order.

Respectfully submitted,

Dated: February 28, 2007

/s/ Julia H. Perkins Jean M. Manning Senate Chief Counsel for Employment Claudia A. Kostel Senate Senior Counsel for Employment Julia H. Perkins Senate Senior Counsel for Employment Office of Senate Chief Counsel for Employment P.O. Box 77053 Washington, D.C. 20013 Telephone: (202) 224-5424 Facsimile: (202) 228-2557 Attorneys for Defendant, The Office of Senator Ben Nighthorse Campbell

6

Case 1:01-cv-00799-PSF-MEH

Document 128

Filed 02/28/2007

Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of February, 2007, I sent a true and accurate copy of the foregoing Defendant's Motion For a Protective Order and the Proposed Order to the following attorney, through the Electronic Case Filing system.

John Evangelisti, Esq. [email protected] 1120 Lincoln Street, Suite 711 Denver, Colorado 80203 Attorney for Plaintiff, Rita Bastien

I hereby certify that on this 28th day of February, 2007, I served a true and accurate copy of the foregoing Defendant's Motion For a Protective Order and the Proposed Order upon the following through first-class U.S. mail, postage prepaid. Defendant, Office of Senator Ben Nighthorse Campbell c/o Ben Nighthorse Campbell P.O. Box 639 Ignacio, CO 81137

/s/ Pandora Oliver Pandora Oliver