United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' (1) MOTION TO COMPEL DEPOSITION TESTIMONY OF
VINCENT PARZIALE AND (2) MOTION TO COMPEL DEPOSITION
TESTIMONY OF GREGG JENKINSON AND CRAIG LEBEL
S.C. CHANG UNITED STATES MAGISTRATE JUDGE.
the Court are Defendants' 1) Motion to Compel Deposition
Testimony of Vincent Parziale, filed October 11, 2017, and 2)
Motion to Compel Deposition Testimony of Gregg Jenkinson and
Craig Lebel, filed October 16, 2017. After careful
consideration of the parties' submissions, counsel's
arguments, and the applicable law, the Court HEREBY GRANTS IN
PART AND DENIES IN PART the Motions for the reasons
Court and the parties are well acquainted with the factual
history of this case, the Court includes only those facts
relevant to the disposition of the subject Motions.
February 19, 2016, prior to the commencement of this action,
Plaintiff proposed an Amendment to Subcontract and General
Release (“Proposed Amendment”) to Defendant D.A.
Builders. In support of Plaintiff's pending motions for
summary judgment (“MSJs”), Vincent Parziale,
Plaintiff's President/CEO, has submitted multiple
declarations that include attestations about the Proposed
Amendment. Parziale described the Proposed Amendment,
prepared by counsel Marie Ann Hoenings, as a good faith
attempt to resolve an escalating legal dispute. He also made
a number of representations concerning the terms of the
deposed Parziale, Gregg Jenkinson, and Craig Lebel on October
5, October 11, and October 12, 2017, respectively. During
each deposition, Plaintiff's counsel invoked Federal Rule
of Evidence (“FRE”) 408 and/or attorney-client
privilege and instructed the deponents not to respond to
questions concerning the Proposed Amendment or about funds
transferred between Plaintiff and general contractor dck/FWF.
elected to adjourn the depositions early given the
parties' dispute about defense counsel's line of
present Motions followed.
Rule of Civil Procedure (“FRCP”) 26 provides:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Relevance “has been construed
broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). At the
same time, it has its “ultimate and necessary
boundaries.” Id. “District courts have
broad discretion in determining relevancy for discovery
purposes.” Surfvivor Media, Inc. v. Survivor
Prods., 406 F.3d 625, 635 (9th Cir. 2005) (citing
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
2015 amendment to FRCP 26 added proportionality as a
requirement for obtaining discovery. Thus, “relevancy
alone is no longer sufficient to obtain discovery, the
discovery requested must also be proportional to the needs of
the case.” Centeno v. City of Fresno, Case No.
1:16-cv-00653-DAD-SAB, 2016 WL 7491634, at *4 (E.D. Cal. Dec.
29, 2016) (citing In re Bard IVC Filters Prod. Liab.
Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). Addressing
all proportionality considerations does not rest solely with
the party seeking discovery. Fed.R.Civ.P. 26(b)(1) advisory
committee's note to 2015 amendment. Instead, “[t]he
parties and the court have a collective responsibility to
consider the proportionality of all discovery and consider it
in resolving discovery disputes.” Id.
courts have broad discretion to limit discovery where the
discovery sought is “unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C). Limits also
should be imposed where the requesting party has had ample
opportunity to obtain the information through ...