Case 1:09-cv-10392-RMB-KNF Document 33 Filed 12/08/10 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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JULIE KAMPS, :

Plaintiff, :
MEMORANDUM AND ORDER
-against- :
09 Civ. 10392 (RMB)(KNF)
FRIED, FRANK, HARRIS, SHRIVER :
& JACOBSON L.L.P., VALERIE FORD JACOB,
JUSTIN SPENDLOVE, WILLIAM MCGUINESS, :
JANICE MACAVOY, DAVID HENNES, and
DOES 1-100, :

Defendants. :
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KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE

This is an employment discrimination action against the law firm Fried, Frank, Harris,

Shriver & Jacobson L.L.P., and some of its partners. Before the Court is the defendants’ motion

for a protective order, pursuant to Fed. R. Civ. P. 26(c), to prohibit the depositions of defendants

Valerie Jacob (“Jacob”) and Justin Spendlove” (“Spendlove”), members of the partnership.

On July 21, 2010, the plaintiff served a notice of deposition on Jacob, for oral questioning

on August 6, 2010, and Spendlove, for oral questioning on July 30, 2010, pursuant to Fed. R. Civ.

P. 30. On July 23, 2010, the defendants informed the plaintiff that: (a) Jacob and Spendlove will

not be produced for depositions “because they have no knowledge regarding any material facts in

this matter;” and (b) the plaintiff, at her own deposition, “could not identify anything specific that

either Mr. Spendlove or Ms. Jacob did that give rise to any of her claims.” On August 1, 2010, the

plaintiff informed the defendants that, “in light of [the defendants’] objections to the depositions,”

she “will withdraw the notices to [Jacob and Spendlove] if [the defendants] will present a Fed. R.

Civ. P. 30(b)(6) witness or witnesses for the following policies, practices, procedures, guidelines,

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or instructions in effect during PLAINTIFF’s employment at Fried Frank:

A. Antidiscrimination, including sexual harassment, gender discrimination, sexual

orientation discrimination, and retaliation;
B. Performance evaluation of associates and counsel;
C. Promotion to Fried Frank partnership or a counsel position;
D. Employee discipline, including progressive discipline;
E. Partner discipline, including progressive discipline;
F. Disability;
G. Vacation and sick leave;
H. Compensation, including all fringe benefits;
I. Termination of employment;
J. Document retention;
K. Document retention CONCERNING a litigation hold or spoliation directive; and
L. Electronic data storage, maintenance, and access.”

On August 2, 2010, the defendants informed the plaintiff that they believed her request for a Fed.

R. Civ. P. 30(b)(6) witness was untimely, because it did “not provide reasonable notice under Rule

30,” and “some of the proposed topics for such a witness are overbroad and irrelevant.” The

defendants also noted that “4 or 5 partners of Fried Frank,” whom the plaintiff was scheduled to

depose that week, “have knowledge concerning many of your proposed topics and you can

certainly ask them about those issues.”

By a letter, dated August 6, 2010, the plaintiff sought to: (1) compel the depositions of

Jacob and Spendlove, because each failed to appear for a noticed deposition, or to compel the

defendants to designate other witnesses with knowledge of the law firm’s policies; (2) re-depose

Janice MacAvoy, William McGuiness, David Hennes, David Morris and Doug Flaum, because

they refused to answer questions during their depositions; and (3) impose sanctions on the

defendants by requiring them to pay the plaintiff’s attorney’s fees and costs in connection with (i)

depositions of witnesses who failed to appear, (ii) re-depositions, and (iii) “the preparation of this

letter motion.” On August 13, 2010, pursuant to Local Civil Rule 37.2 of this court, an informal

conference was held to address the outstanding discovery issues. At that conference, the Court

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noted that the Federal Rules of Civil Procedure require individually named defendants to attend

their own depositions and invited the parties to make whatever motions they deemed necessary, in

connection with the unresolved discovery issues. The plaintiff did not make a formal motion to

compel discovery and for sanctions.

The defendants seek a protective order to prevent the depositions of Jacob and Spendlove,

because they have no “knowledge relevant to the claims or issues in this case.” The defendants

contend that “neither Jacob nor Spendlove has any unique knowledge of [the law firm’s] policies,

many of which are published in the Firm’s intranet, and practices which are known by partners as

evidenced by the testimony given by partners. Plaintiff had ample opportunity to depose five Fried

Frank partners regarding all of the Firm’s policies and practices.” Moreover, according to the

defendants, the partners who were deposed “answered all of the questions about the following

‘policies and practices’: (i) attorney discipline, (ii) anti-discrimination; (iii) associate evaluations;

(iv) attorney promotions; (v) the Firm’s so-called ‘up and out policy’; (vi) the Firm’s Diversity

Committee; (vii) the partnership agreement; (viii) and document preservation.” The defendants

contend, since the plaintiff “failed to make inquiry of any of the five witnesses concerning other

Firm practices that Plaintiff identified in her 30(b)(6) notice . . . she should not be permitted to

depose Spendlove and Jacob about policies when the other deponents could have provided

information had they been asked.”

The plaintiff opposed the defendants’ motion for a protective order, contending it is

untimely because it was made “two months after discovery closed.” The plaintiff contends she is

entitled to depose Jacob and Spendlove because they “are named defendants with personal

knowledge of discoverable facts,” and, “Fried Frank partners, had direct involvement in Plaintiff’s

victimization” since “they set, implemented, and enforced employment policies that gave rise to

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Plaintiff’s allegations.” Moreover, “because [Jacob] is Fried Frank’s chair and Spendlove is its

managing partner, they have unique knowledge and special insight about the policies,

management, and economic performance of the firm.” According to the plaintiff, “both Jacob and

Spendlove voted on promotion of associates to partner in the years Plaintiff was passed over,” and

“[t]he antidiscirmination policy under which Defendants inconsistently testified about their

reporting and corrective responsibilities applied to [Jacob] and Spendlove;” yet, “they did nothing

in response to Plaintiff’s complaints of discrimination.” Additionally, the plaintiff “complained to

both [Jacob] and Spendlove about the unusual manner in which she learned she had not been

promoted to partner,” which also entitles her “to depose them about these complaints and Jacob’s

and Spendlove’s response to them.”

Legal Standard

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense–including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. . . . Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery under Fed. R. Civ. P. 26(b) is very broad,

‘encompass[ing] 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.’” Maresco v. Evans Chemetics, Div. of W.R.

Grace & Co., 964 F.2d 106, 114 (2d Cir. 1992) (quoting Oppenheimer Fund, Inc. v. Sanders,

437 U.S. 340, 351, 98 S. Ct. 2380, 2389 (1978)). Rule 30 of the Federal Rules of Civil Procedure

provides: “A party may, by oral questions, depose any person, including a party, without leave of

court except as provided in Rule 30(a)(2).” Fed. R. Civ. P. 30(a)(1). “[T]he party seeking

discovery is not required to establish that the person whose deposition it seeks has information

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about which he or she could testify at the trial.” 8A C HARLES A LAN W RIGHT, A RTHUR R. M ILLER

& R ICHARD L. M ARCUS, F EDERAL P RACTICE AND P ROCEDURE § 2102 (3d ed. 2010).

“A party or any person from whom discovery is sought may move for a protective order”

and “[t]he motion must include a certification that the movant has in good faith conferred or

attempted to confer with other affected parties in an effort to resolve the dispute without court

action. The court may, for good cause, issue an order to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense, including . . . (A) forbidding the

disclosure or discovery.” Fed. R. Civ. P. 26(c)(1). Given the broad scope of discovery in federal

civil litigation, “it is exceedingly difficult to demonstrate an appropriate basis for an order barring

the taking of a deposition.” Naftchi v. N.Y. Univ. Med. Ctr., 172 F.R.D. 130, 132 (S.D.N.Y.

1997). “A witness ordinarily cannot escape examination by denying knowledge of any relevant

facts, since the party seeking to take the deposition is entitled to test the witness’s lack of

knowledge.” 8A C HARLES A LAN W RIGHT, A RTHUR R. M ILLER & R ICHARD L. M ARCUS, supra §

2037. A party moving for a protective order bears the burden of demonstrating good cause

warranting protection. See Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992). “A

professed lack of knowledge typically does not constitute good cause and is insufficient to warrant

[issuing a protective order for] a deposition.” Alexander v. F.B.I., 186 F.R.D. 60, 64 (D.D.C.

1998); see Naftchi, 172 F.R.D. at 132 (“[I]n ordinary circumstances, [it] does [not] matter that the

proposed witness is a busy person or professes lack of knowledge of the matters at issue, as the

party seeking the discovery is entitled to test the asserted lack of knowledge.”).

“If a motion for a protective order is wholly or partly denied, the court may, on just terms,

order that any party or person provide or permit discovery.” Fed. R. Civ. P. 26(c)(2). “Rule

37(a)(5) applies to the award of expenses,” in connection with an application for a protective order.

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Fed. R. Civ. P. 26(c)(3). “[T]he court has discretion under Rules 26 (c) and 37(a)(5) to require the

losing party on a motion for a protective order to pay the expenses incurred in relation to the

motion.” 8B C HARLES A LAN W RIGHT, A RTHUR R. M ILLER & R ICHARD L. M ARCUS, supra § 2035.

Fed. R. Civ. P. 37(a)(5) provides, in pertinent parts, that “ the court must, after giving an

opportunity to be heard, require the party or deponent whose conduct necessitated [the order

compelling discovery], the party or attorney advising that conduct, or both to pay . . . reasonable

expenses incurred in opposing the motion, including attorney’s fees.”

Application of Legal Standard

The defendants failed to certify, as required by Fed. R. Civ. P. 26(c)(1), that they have in

good faith conferred or attempted to confer with other affected parties in an effort to resolve the

dispute without court action. “At its discretion the court may waive strict compliance with the

conference requirements” and consider the motion on the merits, where failure to do so “may

unduly prejudice the movant.” Pulsecard, Inc. v. Discover Card Servs., 168 F.R.D. 295, 302 (D.

Kan. 1996). Despite the defendants’ failure to certify, and to avoid any undue prejudice, the Court

considers the merits of their motion.

The plaintiff’s deposition notices to defendants Jacob and Spendlove were timely and,

absent a motion for an order quashing the deposition notices or for a protective order, Jacob and

Spendlove were obligated, under the Federal Rules of Civil Procedure, to attend their respective

depositions. The statement: “We will not agree to produce Mr. Spendlove or Ms. Jacob for

deposition because they have no knowledge regarding any material facts in this matter,” in a

communication addressed to the party who noticed the Jacob and Spendlove depositions, is

insufficient, as a matter of law, to avoid the deposition of a party to the action. The defendants’

motion for a protective order was not made until September 15, 2010, after: (a) the dates of both

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depositions, July 30 and August 6, 2010, had expired; and (b) the discovery deadline, August 26,

2010, had passed. Therefore, the defendants' motion is not timely.

The defendants' citation to Deluca v. Bank of Tokyo-Mitsubishi UFJ, No. 05 Civ. 639,

2007 WL 2589534 (S.D.N.Y. Aug. 30,2007), Bums v. Bank of America, 03 Civ. 1685,2007 WL

1589437 (S.D.N.Y. June 4, 2007), and In re Ski Train Fire of November 11, 2000 Kaprun Austria,

No. MDL 1428,2006 WL 1328259 (S.D.N.Y. May 16,2006), is misplaced. These cases are

inapposite, as they involve depositions of corporate executives who, unlike Jacob and Spendlove,

were not individually named parties.

For the foregoing reasons, the defendants' motion for a protective order, Docket Entry No.

22, is denied. Furthermore, IT IS ORDERED that:

1. on or before December 20, 2010, Jacob and Spendlove shall appear for their

depositions;

2. on or before January 3, 2011, the plaintiff shall serve and file her motion for

reasonable expenses, including attorney's fees, pursuant to Fed. R. Civ. P.

37(a)(5);

3. on or before January 10, 2011, the defendants shall serve and file any opposition to

the motion; and

4. on or before January 12,2011, the plaintiffshal1 serve and file any reply.

Dated: New York, New York SO ORDERED:

December 8,2010

KEVIN NATHANIEL FOX

UNITED STATES MAGISTRATE JUDGE