United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING DEFENDANTS' MOTION
FOR PROTECTIVE ORDER TO TERMINATE THE DEPOSITION OF ROBERT
BRUCE MCKAY AND (2) DENYING DEFENDANTS' MOTION FOR
SANCTIONS [ECF. NO. 22]
V. PARKER U.S. DISTRICT JUDGE
lawsuit stems from a tractor-trailer/motorcycle accident that
occurred in Ann Arbor on July 5, 2013. The accident occurred
between Plaintiff Shelly Elizabeth Purdy
(“Plaintiff”) and Defendant Gurwinder Singh Bains
(“Defendant Bains”) who drove a truck as an
employee of Defendant Topac Express (collectively
“Defendants”). Presently before the Court are
Defendants' motion for protective order to terminate the
deposition of Robert Bruce McKay and Defendants' motion
for sanctions. (ECF No. 22.) Finding the facts and legal
arguments sufficiently presented in the parties' briefs,
the Court dispensed with oral argument pursuant to Eastern
District of Michigan Local Rule 7.1(f) on June 21, 2016. (ECF
No. 26.) For the reasons that follow, the court is denying
Defendants' motion for protective order to terminate the
deposition of Robert Bruce McKay and denying Defendants'
motion for sanctions.
March 31, 2016, this Court issued a scheduling order that
provided a discovery deadline of October 14, 2016. (ECF No.
12.) During the course of discovery, the parties agreed that
the depositions of Defendant Gurwinder Singh Bains
(“Defendant Bains”) and Robert Bruce McKay,
Safety Director of Defendant Topac Express, would take place
on May 26, 2016 in Toronto, Canada. (ECF No. 15-5 at Pg ID
140.) Pursuant to the parties Rule 26(f) conference, it was
determined the maximum length of depositions would be 5
hours. (ECF No. 27 at Pg ID 465.) Plaintiff's counsel
served notice for the depositions of Defendant Bains and Mr.
McKay on April 12, 2016. (ECF No. 15-2 at Pg ID 130-32.)
anticipation of the deposition, Defendants served their
responses to interrogatories on May 20, 2016. (ECF Nos. 15-7,
15-8.) A discovery dispute arose on May 23, 2016, when
counsel for the Plaintiff's wanted to postpone the May 26
depositions because counsel found the responses incomplete.
(ECF No. 15-3 at Pg ID 135.) This resulted in Defendants
filing a motion for an emergency protective order with
Magistrate Judge Majzoub. (ECF No. 15.) The parties
participated in a telephone conference with Magistrate Judge
Majzoub, where she ordered that Defendants' Emergency
Motion for Protective Order was denied; the depositions of
Defendant Bains and McKay would be rescheduled for another
date; and Plaintiff would be responsible for reasonable
expenses and attorney's fees incurred by Defendants due
to the adjournment of the two depositions. (ECF No. 19 at Pg
the telephone conference, there was a discussion of defense
counsel's travel plans scheduled for the evening of May
26, 2016. (ECF No. 22-5.) Kevin Mulvaney, counsel for
Defendants, had a flight scheduled for the evening of May
26th from Toronto for personal reasons. (ECF No. 22-7 at Pg
ID 314.) He had purchased a ticket for the flight after
counsel for both parties agreed on the deposition date.
(Id.) As of the telephone conference,
Plaintiff's counsel Jinan Hamood was aware that Mr.
Mulvaney would have to leave the deposition on May 26 at 5:00
PM. No objections were made. (ECF No. 22-5.)
next day, Mr. Mulvaney spoke with co-counsel for the
Plaintiff, Oscar Rodriguez, about the upcoming depositions.
(ECF No. 22, ¶ 17.) During this conversation, Mr.
Mulvaney shared that the depositions would need to end by
5:00 PM on May 26th due to his travel itinerary.
(Id.) Mr. Mulvaney offered to start the deposition
an hour earlier than scheduled to help accommodate Ms. Hamood
and Mr. Rodriguez. (Id.) Mr. Rodriguez declined,
keeping the first deposition scheduled for 9:00 AM.
26, 2016, the depositions began as planned at 9:00 AM,
starting with Defendant Bains. (Id., ¶ 18.) His
deposition ended at approximately 3:00 PM. (Id.,
¶ 19.) After a lunch break, the deposition of Mr. McKay
began at 3:46 PM. (Id., ¶¶ 21, 22.)
Throughout the day, Mr. Mulvaney reminded opposing counsel
that the depositions would need to conclude at 5:00 PM.
(Id., ¶¶ 18, 23.) No objections were made.
(Id.) After 5:00 PM, Mr. Mulvaney reminded opposing
counsel that he had to leave. (Id., ¶¶ 24,
25.) The deposition ended at 5:08 PM. (Id., ¶
25.) Mr. Mulvaney counsel alleges that Plaintiff's
counsel used aggressive language against him both during and
after the deposition. (Id., ¶ 26.) Counsel for
the Plaintiff does not dispute that the statements were made.
(ECF No. 27, ¶ 22.)
deposition of Mr. McKay lasted 83 minutes. (ECF No. 27 at Pg
ID 423-24.) After the deposition, Ms. Hamood made repeated
requests to Mr. Mulvaney to provide dates to continue Mr.
McKay's deposition. (ECF No. 22-14 at Pg ID 399-401.) On
June 16, 2016, Mr. Mulvaney sent Ms. Hamood a letter stating
that he would not produce Mr. McKay for another deposition.
(ECF No. 22-13 at Pg ID 396-97.)
counsel filed the instant motion on June 17, 2016, requesting
that this Court (1) issue a protective order terminating the
deposition of Mr. McKay; (2) issue sanctions against
Plaintiff and Plaintiff's counsel for alleged discovery
abuse; and (3) award Defendants reasonable attorney fees and
costs due to the actions of both Plaintiff and
Plaintiff's counsel. (ECF No. 22 at Pg ID 220.)
Plaintiff's response requests that the Court (1) deny
Defendants' motion; (2) order Defendants to produce Mr.
McKay for a continued deposition; and (3) sanction
Defendants' for causing Plaintiff's counsel to spend
15 hours responding to their motion. (ECF No. 27 at Pg ID
Rule of Procedure 26(c) allows the court to issue protective
orders for good cause shown to “protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense, including that the disclosure or discovery
not be had or that the disclosure or discovery be limited to
certain matters.” Fed.R.Civ.P. 26(c)(1). The party
seeking a protective order has the burden of showing that
good cause exists for the order. Nix v. Sword, 11
Fed.Appx. 498, 500 (6th Cir. 2001). To show good cause, the
movant must articulate specific facts showing “clearly
defined and serious injury resulting from the discovery
sought and cannot rely on mere conclusory statements.”
Id. (citations and internal quotation marks
Federal Rule of Civil Procedure 30(d)(2), a court “may
impose an appropriate sanction…on a person who
impedes, delays, or frustrates the fair examination of the
deponent.” Fed.R.Civ.P. 30(d)(2). Parties may file a
motion to terminate or limit a deposition if “it is
being conducted in bad faith or in a manner that ...