Opinion
Civ. No. 04-61 RB/DJS.
December 14, 2004
ORDER
THIS MATTER comes before the Court upon Defendant's Motion to Quash Subpoena Duces Tecum and for Protective Order filed October 22, 2004 (Docket No. 25) and Defendant's Motion for Protective Order Prohibiting Disclosure of Hiring Records filed October 22, 2004 (Docket No. 23). Plaintiff filed a unitary response to both motions on November 10, 2004 (Docket No. 28). On November 23, 2004, Defendant filed a reply addressing Plaintiff's response and arguing in favor of both motions (Docket No. 32). No certificate of completion of briefing has been filed. See D.N.M.LR-Civ. 7.3(b).
By the instant motions, Defendant seeks protective orders preventing the deposition of James Lewis, Chief Administrative Officer for the City of Albuquerque and relieving it from complying with Plaintiff's notice of deposition duces tecum seeking information pertaining to each and every position for which the City of Albuquerque has hired a new employee or transferred an existing employee during the period from January 27, 2001 to the present. Defendant argues that James Lewis does not have nay information regarding Plaintiff, his employment or his claims. Defendant also argues that the discovery requests seeking information regarding all hires or transfers for the City from January, 2001 to the present is unduly burdensome and overbroad.
Whether to enter a protective order is within the sound discretion of the court. Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995). Fed.R.Civ.P. 26(c) provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." To establish good cause, that party must submit "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
Courts have granted protective orders for high-level executives where a party seeking to take a deposition had not yet attempted to obtain information from lower level executives, where the high-level executive plainly had no knowledge of the facts, or where the deposition was solely sought to harass the executive.General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80, 82-83 (S.D.N.Y. 2002) (internal citations omitted). In determining whether to issue a protective order, the Court should consider whether the high level executive has unique personal knowledge about the controversy, the potential for harassment, the potential disruption of business to the company and whether other lower-level witnesses may have access to the same information. Id.; Folwell v. Hernandez, 210 F.R.D. 169, 173 (M.D.N.C. 2002); Baine v. General Motors Corp., 141 F.R.D. 332, 334 (M.D. Ala. 1991). In this instance, Defendant submitted an affidavit from Mr. Lewis in support of the motion and stating that he lacked relevant knowledge of the case. See General Star Indem., 210 F.R.D. at 83 (party moving for protective order typically provides an affidavit from the person seeking to avoid being deposed). In addition, Defendant submitted affidavits by Clarence Lithgow, Director of the City's Waste Management Department, where Plaintiff worked, and Patricia Miller, Director of Human Resources for the City, which support Lewis' affidavit.
In his response to the motion, Plaintiff requests that the Court treat his notice of deposition as one having been directed to a governmental agency pursuant to Fed.R.Civ.P. 30(b)(6) and direct Defendant to designate a person to testify on its behalf concerning the matters identifies. The Court declines that invitation, as modification or amendment of the discovery request is a matter which counsel should have addressed prior to the filing of the motion or, at the least, prior to the filing of Plaintiff's response. Further, the Court finds that Defendant has met its burden with regard to a protective order for James Lewis and that its motion should be granted.
In addition, Defendant has shown good cause for a protective order regarding Plaintiff's discovery requests seeking all transfers and hiring by the city from January 27, 2001 to the present. Defendant has demonstrated that complying with the request is unduly burdensome. Defendant asserts that from 2002 through the date of its motion for protective order, it filled over 1,200 job positions. That process generated over 200,000 documents. In addition, Defendant states that hiring decisions made prior to the year 2002 will require a hand search of documents. many of which contain irrelevant and confidential information. Further, Defendant has shown that the requests are overbroad, in that many of the positions for which Plaintiff seeks information are those for which he is not qualified, such as accountants, lawyers, or managers. In his response to the motion, Plaintiff requests that in the alternative to denying Defendant's motions, the Court order production of information which the Court determines may be admissible or likely to lead to the discovery of admissible evidence. Once again, the Court declines Plaintiff's invitation.
IT IS THEREFORE ORDERED that Defendant's Motion to Quash Subpoena Duces Tecum and for Protective Order and Defendant's Motion for Protective Order Prohibiting Disclosure of Hiring Records are granted. The subpoena duces tecum for James Lewis is hereby quashed and Plaintiff shall not depose that individual. Further, Defendant is relieved from the obligation of responding to Plaintiff's discovery requests seeking information regarding all transfers or hires of employees by the City of Albuquerque from January 27, 2001 to the present, as those requests are unduly broad and overly burdensome.