Opinion
CIVIL ACTION No: 00-2285-JAR
March 7, 2002
MEMORANDUM AND ORDER
A telephone hearing was held on January 31, 2002 regarding the Motion for Protective Order Quashing Deposition Notice of Larry Mercer (doc. 173) filed by Defendant Home Depot, Inc., d/b/a/ Home Depot ("Home Depot"). Plaintiff appeared through counsel Daniel J. Cohen. Defendants Home Depot and Home Depot U.S.A., Inc., appeared through counsel Daniel O. Herrington. The Court deferred ruling on the motion at the hearing in order to provide Home Depot the opportunity to file a reply brief. The Court has reviewed the reply brief, and is now prepared to rule.
I. Background Information
This is a personal injury case in which Plaintiff alleges he was struck by falling merchandise while shopping at a Home Depot Store. Home Depot seeks a protective order preventing Plaintiff from deposing Larry Mercer, who is Home Depot's Vice — President of Operations. Plaintiff seeks to depose Mr. Mercer regarding Home Depot's nationwide operations and whether there is an inherent risk to employees and customers stemming from Home Depot's warehouse — style operations.
I. Standard for Ruling on a Motion for Protective Order
Federal Rule of Civil Procedure 26(c) provides that a 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." The party seeking a protective order has the burden to show good cause for it. Reed v. Bennett, 193 F.R.D. 689, 691 (D. Kan. 2000). To establish good cause, that party must make "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). The decision to enter a protective order is within the court's discretion. Thomas v. Int'l Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995).
II. ANALYSIS
A. Is Home Depot Entitled to a Protective Order Based on Mr. Mercer's High — Level Position and Lack of Knowledge About Plaintiffs Accident?
Home Depot contends it is entitled to a protective order because Mr. Mercer is a high — level executive who has no knowledge specifically related to Plaintiff's accident. Home Depot argues that Plaintiff has no need to depose Mr. Mercer regarding any risk to employees and customers stemming from Home Depot's warehouse — style operations given that Plaintiff has already noticed the deposition of a lower — level corporate representative regarding this very same topic. According to Home Depot, Plaintiff must show that he cannot obtain the information he desires through less intrusive means than deposing a corporate vice — president.
Plaintiff argues that he is entitled to take Mr. Mercer's deposition because he is in charge of nationwide operations and Plaintiff has the right to depose individuals whose decision — making responsibility extends that far. Plaintiff also claims that he has been trying for to months to obtain the depositions of Home Depot's lower — level managers, and that he did not notice Mr. Mercer's deposition until Home Depot unexpectedly canceled their depositions.
The Court holds that Plaintiff is entitled to depose Mr. Mercer. Plaintiff does not have the burden to justify his decision to depose Mr. Mercer. Rather, Home Depot has the burden to show that good cause exists to prevent the deposition from going forward in order to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). The Court does not find that Home Depot has met this burden. Home Depot simply has not demonstrated how either it or Mr. Mercer will be annoyed, embarrassed, oppressed, or subjected to undue burden or expense if Plaintiff is allowed to depose Mr. Mercer.
In addition, the Court finds this case distinguishable from Thomas v. Int'l Bus. Mach., 48 F.3d 478 (10th Cir. 1995) and Gazaway v. Makita USA, Inc., No. 97-2287-JWL, 1998 WL 219771 (D. Kan. April 16, 1998), upon which Home Depot relies. In Thomas, an employment discrimination case, the Tenth Circuit held that the district court did not abuse its discretion in granting a protective order to prevent the deposition of a the corporate defendant's chairman. 48 F.3d at 483-84. In so ruling, the Tenth Circuit relied upon, inter alia, the chairman's lack of knowledge about the plaintiff and her work performance. Id. at 483. In addition, the defendant demonstrated that the deposition would impose "severe hardship" on the chairman. Id.
Similarly, in Gazaway, another employment discrimination case, Magistrate Judge Rushfelt concluded that the defendant was entitled to a protective order to prevent the deposition of its former president. There, the defendant demonstrated that it would be "unduly burdensome and expensive" to produce the witness for his deposition in Kansas City, rather than Japan, where he resided. Gazaway, 1998 WL 219771, at *3. The defendant also established that the witness had no personal knowledge as to the plaintiff or the criteria used to implement the reduction in force at issue. Id. In addition, Judge Rushfelt held that Plaintiff's deposition notice violated the rule that the deposition of a corporate defendant or its officers should take place at its principal place of business. Significantly, Judge Rushfelt ruled that in the event the deponent were to return to the United States, where the deposition would not be burdensome, Plaintiff could depose him. Id.
In contrast, in this case, Defendant has made no showing of "severe hardship" or "undue burden." Moreover, there is no assertion that Mr. Mercer lacks knowledge of the topic about which Plaintiff seeks to depose him. While Mr. Mercer may lack knowledge of Plaintiff's injuries and his accident, Home Depot does not claim that he also lacks knowledge about any risk to employees and customers stemming from Home Depot's warehouse — style operations. Rather, Home Depot merely asserts that other, lower — level employees also possess this information. Finally, there is no issue in this case about the deposition being taken in an improper or burdensome location. Mr. Mercer's deposition was noticed to take place at Home Depot's principal place of business where Mr. Mercer works.
In sum, the Court does not find that Home Depot is entitled to a protective order on the basis that Mr. Mercer is a high — level executive who lacks knowledge of Plaintiff's accident.
B. Is Home Depot Entitled to a Protective Order Based on Insufficient Notice?
Home Depot also contends that it is entitled to a protective order because Plaintiff did not provide at least five days notice of the deposition as required by D. Kan. 30.1. Plaintiff concedes that he did not provide Home Depot with the required five days notice. He contends, however, that the short notice was necessitated by Home Dept's unexpected, last — minute refusal to comply with its prior agreement to produce certain corporate managers for their depositions.
The Court finds that this issue is now moot inasmuch as the noticed deposition date has passed. The Court will, however, require Plaintiff's counsel to comply with the notice provision of D. Kan. Rule 30.1 when he re — notices Mr. Mercer's deposition.
IT IS THEREFORE ORDERED that the Motion for Protective Order Quashing Deposition Notice of Larry Mercer (doc. 173) filed by Defendant Home Depot, Inc., d/b/a/ Home Depot, is denied.
IT IS SO ORDERED.