Opinion
Civil No. 2003-117.
October 15, 2007
Lee J. Rohn, Esq., St. Croix, U.S.V.I., For the plaintiff. Stefan B. Herpel, Esq., St. Thomas, U.S.V.I., For the defendant.
ORDER
Before the Court is the appeal of the defendant, FirstBank de Puerto Rico ("FirstBank"), from an order entered by the Magistrate Judge on September 4, 2007, denying FirstBank's motion for a protective order.
I. FACTS
Plaintiff Adlah Donastorg, Jr. ("Donastorg") brought this action against FirstBank in May, 2003, alleging various causes of action arising out of mortgages that Donastorg had with FirstBank. Discovery has been ongoing in this action since early 2004. In August, 2007, FirstBank moved for a protective order pursuant to Federal Rule of Civil Procedure 26(c). The motion sought to prevent Donastorg from deposing four witnesses. The Magistrate Judge entered an order denying FirstBank's motion without explanation. This timely appeal followed.II. DISCUSSION
A magistrate judge may hear and decide nondispositive pretrial matters such as a motion for a protective order. See 28 U.S.C. § 636(b)(1)(A); 1 Fed.R.Civ.P. 72(a); LRCi 72.1. Pursuant to Rule 72(a) and LRCi 72.1(b)(3)(A), a party may seek review of the Magistrate Judge's order by appealing to this Court within ten days after being served with a copy of the order. Nyfield v. V.I. Tel. Corp., Civ. No. 1999-202, 2002 U.S. Dist. LEXIS 1955, at *3 (D.V.I. Jan. 29, 2002). This Court will set aside "any portion of the Magistrate Judge's order found to be clearly erroneous or contrary to law." LRCi 72.1(b)(3)(A); see also Anthony ex rel. Lewis v. Abbott, 289 F. Supp. 2d 667, 671 (D.V.I. 2003).
That section provides, in relevant part:
(b)(1) Notwithstanding any provision of law to the contrary — (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, . . . to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.28 U.S.C. § 636(b)(1)(A).
III. ANALYSIS
FirstBank makes two main arguments on appeal. First, FirstBank asserts that the four witnesses Donastorg seeks to depose were not involved in the mortgages out of which this action arose, and that Donastorg is seeking to develop new claims in violation of Rule 26(b)(1). Second, FirstBank asserts that the deposition of these four witnesses puts Donastorg beyond the ten-deposition limitation imposed by Rule 30(a)(2)(A).
The Court's task is to determine whether the Magistrate Judge's order was clearly erroneous or contrary to either Rule 26(b)(1) or Rule 30(a)(2)(A).
A. Rule 26(b)(1) 1. Standards under Rule 26(b)(1)
Rule 26(b)(1) provides, in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
Fed.R.Civ.P. 26(b)(1). In deciding whether a matter is relevant, this Court has held:
The requirement of relevancy should be construed liberally and with common sense, rather than in terms of narrow legalisms. No one would suggest that discovery should be allowed of information that has no conceivable bearing on the case. But it is not too strong to say that a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.Nobles v. Jacobs IMC (JIMC), Civ. No. 2002-26, 2003 U.S. Dist. LEXIS 24083, at *2-3 (D.V.I. July 7, 2003); see also Bhagwandass v. Hovensa, L.L.C., Civ. No. 2001-5, 2002 U.S. Dist. LEXIS 27059, at *7 (D.V.I. Oct. 29, 2002) (noting that a matter sought to be discovered "must be limited in scope . . . and tied to the allegations of Plaintiff's complaint"). "A liberal construction, however, should not allow a party to cast its net of inquiry too broadly." Stern v. Seykota, Civ. No. 2002-134, 2004 U.S. Dist. LEXIS 27620, at *5 (D.V.I. Dec. 22, 2004).
The Advisory Committee Notes to the 2000 Amendment to Rule 26 explain that the Committee was concerned about "overbroad discovery," and intended that "the parties and the court focus on the actual claims and defenses involved in the action." Fed.R.Civ.P. 26, Advisory Comm. Notes, 2000 Amendment. Accordingly, the Committee noted that the 2000 Amendment "signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings." The Committee conceded that the "dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision." Id. The Committee explained:
A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard.Id. Finally, the Committee noted that "the determination whether . . . information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action." Id.
2. FirstBank's Appeal
FirstBank argues that the 2000 Amendment prohibits the discovery of information to sustain new claims. FirstBank also argues that the four witnesses are unrelated to Donastorg's claims because they were not involved in the mortgages that form the basis of those claims.
Donastorg brought this action in 2003, alleging that FirstBank had brought a retaliatory foreclosure action against him in connection with a mortgage he entered into with FirstBank in 2000. Donastorg also alleged that FirstBank had otherwise engaged in improper banking practices. Donastorg filed a second amended complaint in 2005. The second amended complaint included the additional factual allegations that Donastorg had refinanced his mortgage in 2004 and that FirstBank had continued its improper banking practices. The second amended complaint also included two new causes of action. In seeking to depose the four witnesses, Donastorg now asserts that in 2007, after this action was commenced, he sought unsuccessfully to refinance his mortgages with FirstBank and that the four witnesses were involved with his refinancing application. Donastorg argues that his application was rejected for retaliatory reasons, and thus that the testimony of the four witnesses relates to his original claims.
Donastorg actually entered into the mortgage with First Virgin Islands Federal Savings Bank. FirstBank is First Virgin Islands Federal Savings Bank's successor.
The record does not reflect whether Donastorg filed a first amended complaint.
The Advisory Committee Notes provide that "[a] variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action [including] other incidents of the same type." Fed.R.Civ.P. 26, Advisory Comm. Notes, 2000 Amendment (emphasis supplied). Here, Donastorg is seeking testimony from witnesses that relates directly to his already-pleaded claims of repeated retaliatory action and improper banking practices. The Court thus finds that the Magistrate Judge's determination that a protective order was not warranted is not clearly erroneous or contrary to Rule 26(b)(2).
In his Second Amended Complaint, Donastorg alleges that First Bank "has repeatedly violated accepted banking industry standards of conduct in its relationship with Plaintiff [and that] [t]he improper actions towards Plaintiff are in retaliation for Plaintiff bringing this cause of action." (Sec. Am. Compl. §§ 30-31.)
B. Rule 30(a)(2)(A) 1. Standards under Rule 30(a)(2)(A)
The Federal Rules of Civil Procedure provide that leave of the court is required when a request would result in the taking of more than ten depositions, Fed.R.Civ.P. 30(a)(2)(A), but also state that "by order or by local rule, the court may alter the limits in these rules on the number of depositions and interrogatories." Fed.R.Civ.P. 26(b)(2). In order to obtain leave to expand the ten-deposition limit imposed by Rule 30(a)(2)(A), the party seeking the additional depositions bears the burden of showing cause for the expansion. See Fed.R.Civ.P. 30(a)(2)(A), 26(b)(2)(c); see also Jones v. McMahon, No. 98-374, 2007 U.S. Dist. LEXIS 50145, at *64-65 (N.D.N.Y. July 11, 2007).
2. FirstBank's Appeal
FirstBank argues, inter alia, that Donastorg did not meet its burden of showing cause to exceed Rule 30(a)(2)(A)'s ten-deposition limitation and that the Magistrate Judge made no such finding.
Donastorg asserts that the Magistrate Judge conducted a pretrial conference after Donastorg had filed more than ten notices of deposition. Donastorg states that following the pretrial conference, the Magistrate Judge issued an order, stating, "Number of depositions will be expanded as appropriate."
The record does not reflect that Donastorg obtained leave of court to depose more than ten witnesses, as required by Rule 30(a)(2); see also Bell v. Fowler, 99 F.3d 262, 271 (8th Cir. 1996) ("Under Rule 30(a)(2)(A), a party is entitled to up to ten depositions without leave of court, and to obtain discovery depositions beyond ten, leave of court is required."). Because there is no evidence in the record that Donastorg sought leave of court or that the Magistrate Judge granted leave of court, the Court finds that the Magistrate Judge's order denying FirstBank's motion is contrary to Rule 30(a)(2)(A). Indeed, even if leave of court had been sought, there is no evidence on the record that demonstrates an attempt by Donastorg to show cause for the expansion of the ten-deposition limitation.
III. CONCLUSION
For the reasons stated above, it is hereby
ORDERED that the Magistrate Judge's September 4, 2007 order is VACATED; it is further
ORDERED that any depositions beyond the ten-deposition limitation are STAYED; and it is further
ORDERED that before any depositions beyond the ten-deposition limitation occur, the Magistrate Judge shall first make appropriate determinations about whether Donastorg has shown cause for such an expansion.