United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF'S MOTION FOR PROTECTIVE
S.C. Chang United States Magistrate Judge
the Court is Plaintiff's Motion for Protective Order,
filed September 28, 2017, which seeks to preclude the
deposition of its counsel Marie Ann Hoenings. After careful
consideration of the parties' submissions, counsel's
arguments, and the applicable law, the Court HEREBY DENIES
the Motion for the reasons set forth below.
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 instant Motion.
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”), both Vincent Parziale,
Plaintiff's President/CEO, and Hoenings submitted
multiple declarations that include representations about the
September 8, 2017, defense counsel informed Plaintiff's
counsel that they intended to notice Hoenings'
deposition. Plaintiff responded that it would not produce her
for a deposition. Defendants noticed Hoenings'
deposition, but following the conferral process, they
continued the deposition date pending the adjudication of
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.
may terminate or limit the manner and scope of a deposition,
for good cause, “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). If the Court denies
the motion for protective order in whole or in part,
“the court may, on just terms, order that any party or
person provide or permit discovery.” Fed.R.Civ.P.
the party seeking the protective order has the heavy burden
of demonstrating that “good cause” exists for the
protection of the materials. Rivera v. NIBCO, Inc.,
384 F.3d 822, 827 (9th Cir. 2004) (citation omitted).
“‘Good cause' is established where it is
specifically demonstrated that disclosure will cause a
‘specific prejudice or harm.'” Id.
(quoting Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1211-12 (9th Cir. 2002)). This
standard is not satisfied by “[b]road allegations of
harm, unsubstantiated by specific examples or articulated
reasoning.” Id. (citing Phillips, 307
F.3d at 1211-12). Rather, a party seeking to obtain a
protective order must make a ...