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

Case 1:04-cv-01185-WDM-PAC

Document 34

Filed 12/01/2005

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware Corporation, POSTGRADUATE INSTITUTE FOR MEDICINE, INC., a member of the Jobson Education Group, a Delaware corporation, INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, a member of the Jobson Education Group, a Delaware corporation, Defendants.

DEFENDANTS' MOTION FOR PROTECTIVE ORDER

Defendants Jobson Publishing, LLC ("Jobson") and Postgraduate Institute for Medicine, Inc. ("PIM") (collectively, "Defendants"), by and through their attorneys, Hall & Evans, L.L.C., hereby submit this Motion for Protective Order pursuant to Fed. R. Civ. P. 26(c), as follows: 1. On November 21, 2005, without any effort to coordinate to find a mutually

agreeable date or location, Plaintiff issued a Notice of Deposition setting a 30(b)(6) deposition on December 1, 2005 and demanding that Defendants make a 30(b)(6) representative available at 10:00 a.m. on that date. [See Notice of Deposition, attached to Plaintiff's Expedited Motion to Extend Deadline for Amending Complaint to Include Proper Defendants or Alternatively, to Shorten Defendants' Time to Respond to Plaintiff's 30(B)(6) Notice of Deposition and Request for Production of Documents ("Plaintiff's Motion")]. Included within the Notice of Deposition

Case 1:04-cv-01185-WDM-PAC

Document 34

Filed 12/01/2005

Page 2 of 6

was an exhaustive request for production of documents pursuant to Fed. R. Civ. P. 34, demanding that the 30(b)(6) deponent bring specified documents to the deposition set just ten days later. [See id.] 2. Under Fed. R. Civ. P. 30(b)(1), a party desiring to take a deposition must give

reasonable notice in writing to every other party to the action. Under D.C.COLOLCivR 30.1, "reasonable notice" is defined as not less than 11 days, as computed under Fed. R. Civ. P. 6. Local Rule 30.1 further provides that "[b]efore sending a notice to take a deposition, counsel . . . seeking the deposition shall make a good faith effort to schedule it by agreement at a time reasonably convenient and economically efficient to the proposed deponent [and] all counsel of record . . . ." In this case, Plaintiff's counsel neither gave 11 days notice prior to the deposition, nor made any effort to confer with the undersigned counsel in order to determine a mutually agreeable time or date for the proposed deposition. 3. On November 28, 2005, Plaintiff filed Plaintiff's Motion, requesting either an

extension of time to comply with this Court's order to amend his Complaint to name the proper defendant, or an order shortening the time for Defendants to provide a response to the request for production of documents. 4. On November 29, 2005, Plaintiff's counsel sent an e-mail to counsel for

Defendants, stating her intention to proceed with the deposition on December 1 and inquiring as to whether Defendants were going to make a deponent available. A copy of the e-mail is attached hereto as Attachment 1. 5. On November 30, 2005, counsel for Defendants responded to Plaintiff's counsel

and explained that in light of Plaintiff's Motion, which Defendants were then endeavoring to

2

Case 1:04-cv-01185-WDM-PAC

Document 34

Filed 12/01/2005

Page 3 of 6

prepare a response to, it would be appropriate to cancel the deposition. A copy of this response is included in Attachment 1. 6. Plaintiff's counsel responded on November 30, 2005, refusing to cancel the

deposition. A copy of this response is included in Attachment 1. 7. On November 30, 2005, Defendants filed a Response to Plaintiff's Motion,

attaching documentation directly addressing Plaintiff's concerns relating to the proper defendant and expressly demonstrating that any liability under this lawsuit lies solely with XJP, LLC. Defendants' Response explains that in light of this documentation, neither the 30(b)(6) deposition nor the associated document production requests are necessary. 8. On the same date, counsel for Defendants sent several e-mails to Plaintiff's

counsel, expressing hope that the parties might be able to reach an agreement respecting the proper defendant in light of the materials attached to the Defendants' Response, and agreeing to hold off on filing any motion for a protective order relating to the Notice of Deposition until the morning of December 1, in order to allow Plaintiff's counsel to review such materials. A copy of this e-mail exchange is attached hereto as Attachment 2. 9. On December 1, 2005, at 7:47 a.m., Plaintiff's counsel responded that they were

unwilling to stipulate to naming XJP, LLC as the sole defendant in this matter, and intended to proceed with their Rule 30(b)(6) deposition. A copy of this e-mail is attached hereto as

Attachment 3. As a result, Defendants are now filing this Motion for Protective Order. 10. In light of Plaintiff's failure to comply with the Federal Rules of Civil Procedure

and Local Rules, and in light of the issues raised in Defendants' Response to Plaintiff's Motion,

3

Case 1:04-cv-01185-WDM-PAC

Document 34

Filed 12/01/2005

Page 4 of 6

Defendants assert that the deposition unilaterally scheduled by Plaintiff for December 1, 2005, should not go forward. 11. Pursuant to Fed. R. Civ. P. 26(c), counsel for Defendants certifies that they have

in good faith conferred with counsel for Plaintiff in an effort to resolve this dispute without Court action, but counsel for Plaintiff refuses to cancel the deposition. [See Attachments hereto]. 12. Pursuant to D.C.COLO.LCivR 30.2, "[p]ending resolution of any motion under

Fed. R. Civ. P. 26(c) . . . . , no party, attorney, or witness is required to appear at the deposition to which the motion is directed until the motion has been resolved. The filing of a motion under either of these rules shall stay the discovery to which the motion is directed until further order of the court." WHEREFORE, Defendants Jobson Publishing, LLC and Postgraduate Institute for Medicine, Inc. respectfully request that this Court enter a protective order striking Plaintiff's Notice of Deposition, prohibiting Plaintiff from conducting its proposed 30(b)(6) deposition on December 1, 2005 at 10:00 a.m., prohibiting Plaintiff from conducting any additional discovery with respect to the issue of the proper defendant until the issues raised in Plaintiff's Motion and Defendants' Response have been resolved, and entering all such additional relief as this Court deems just and appropriate.

4

Case 1:04-cv-01185-WDM-PAC

Document 34

Filed 12/01/2005

Page 5 of 6

Dated this 1st day of December, 2005. Respectfully submitted,

s/ Gillian Dale . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

5

Case 1:04-cv-01185-WDM-PAC

Document 34

Filed 12/01/2005

Page 6 of 6

CERTIFICATE OF MAILING I hereby certify that on the 1st day of December, 2005, I served a true and correct copy of the foregoing DEFENDANTS' MOTION FOR PROTECTIVE ORDER with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address: Julie M. Schmidt Ari Krichiver Nantiya Ruan Laura L. Rovner Student Law Office University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 [email protected] [email protected]

s/ Denise Gutierrez . Thomas J. Lyons, Esq. Gillian Dale, Esq. Attorneys for Defendants Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 (303) 628-3300 phone (303) 628-3368 fax [email protected] [email protected]

6