Tarver v. King

1 The Honorable Barbara J. Rothstein — 2 — — 3 — — 4 — 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 NO. 22-cv-736 NIKITA TARVER, 8 ORDER GRANTING DEFENDANT’S Plaintiff, REQUEST FOR PROTECTIVE 9 ORDER v. — 10 — CITY OF SEATTLE, — 11 — Defendant. — 12 — 13 Nikita Tarver sued the City of Seattle following her injury during a Black Lives Matter rally 14 in Seattle on May 30, 2020. Compl., ECF No. 1. The parties have proceeded with discovery and 15 at this time are seeking resolution of a dispute related to the upcoming deposition of the City’s Rule 16 30(b)(6) witness. The Court held a hearing on the record to resolve the discovery dispute and 17 granted the City’s request for a protective order related to two topics that Plaintiff raised in her Rule 18 30(b)(6) notice. The Court’s reasoning follows. 19 There are nine topics in Plaintiff’s 30(b)(6) notice. The parties reached agreement as to the 20 issues in topics 1-7 but could not resolve their dispute on topics 8 and 9. Topic 8 relates to the 21 preservation of records related to the incident, including questions regarding what evidence the 22 witness has reviewed and opinions on the evidence. Plaintiff may certainly ask the witness about 23 the evidence the witness reviewed (although counsel for the City has indicated that this witness has 24 ORDER GRANTING DEFENDANT’S REQUEST FOR PROTECTIVE ORDER 1 reviewed little, if any, evidence) but may not elicit opinions on the reasonability of any actions 2 taken, which are more appropriately addressed to an expert witness. See Dagdagan v. City of 3 Vallejo, 263 F.R.D. 632, 635 (E.D. Cal. 2009), on reconsideration, (Jan. 29, 2010). Plaintiff also 4 may not elicit opinions that reflect on legal theories or counsel’s work product but must limit 5 questioning to factual “information known or reasonably available” to the City. Fed. R. Civ. P. 6 30(b)(6). The Court notes that the City has proffered an alternate witness to answer questions 7 related to the City’s policies and procedures around the preservation of records. 8 Topic 9 addressed the Defendant’s affirmative defenses. As discussed, some of the defenses 9 are based on information particularly obtainable from the Plaintiff or third parties, such as 10 mitigation of damages, pre-existing conditions, assumption of risk, contributory fault or fault of 11 third parties. As such, the City’s 30(b)(6) witness is an unlikely source of information responsive 12 to these defenses, and they are not appropriate subjects for questioning. Other defenses are purely 13 legal arguments, which are more appropriately addressed through motions practice. The parties are 14 encouraged to confer and narrow the affirmative defenses to those that remain viable. 15 For the foregoing reasons, the Defendant’s request for protective order on topics 8 and 9 is 16 GRANTED. 17 DATED this 27th day of November 2023. — 18 — A — 19 — — 20 — B arbara Jacobs Rothstein U.S. District Court Judge — 21 — — 22 — — 23 — 24 ORDER GRANTING DEFENDANT’S REQUEST FOR PROTECTIVE ORDER