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Gramercy Group, Inc. v. D.A. Builders, LLC

United States District Court, D. Hawaii

November 8, 2017

GRAMERCY GROUP, INC., Plaintiff,
v.
D.A. BUILDERS, LLC aka D.A. BUILDERS; DAVID A. ALCOS III; JOHN DOES 1-20; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; OTHER ENTITIES 1-10, Defendants.

          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

          KEVIN S.C. CHANG UNITED STATES MAGISTRATE JUDGE.

         Before 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 articulated below.

         BACKGROUND

         As the 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.

         On 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 Proposed Amendment.

         Defendants 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.

         Defendants elected to adjourn the depositions early given the parties' dispute about defense counsel's line of questioning.

         The present Motions followed.

         LEGAL STANDARD

         Federal 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. 2002)).

         The 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.

         District 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 ...


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