Spurbeck v. Wyndham Worldwide

[4] UNITED STATES DISTRICT COURT [5] DISTRICT OF NEVADA [6] 7 TANYA SPURBECK, Case No. 2:20-cv-00346-RFB-NJK 8 Plaintiff(s), Order 9 v. [Docket Nos. 71, 72, 78] 10 WYNDHAM DESTINATIONS, INC., et al., 11 Defendant(s). 12 Pending before the Court is Plaintiff’s motion for protective order. Docket No. 71.1 13 Defendants filed a response in opposition. Docket No. 75. Also pending before the Court is 14 Defendants’ motion to compel. Docket No. 72. Plaintiff filed a response in opposition. Docket 15 No. 77.2 Plaintiff also filed a motion to strike the motion to compel. Docket No. 78. The motions 16 are properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, 17 Plaintiff’s motion for protective order is DENIED, Defendants’ motion to compel is GRANTED, 18 and Plaintiff’s motion to strike is DENIED. 19 I. BACKGROUND 20 Plaintiff brings this case for claims arising out of her employment with Defendants. See 21 Docket No. 43. Upon denying Defendants’ motion to dismiss, United States District Judge 22 Richard F. Boulware, II ordered the parties to proceed into discovery and set a discovery cutoff of 23 April 8, 2021. Docket No. 38. The parties are currently before the Court regarding Plaintiff’s 24 contention that her deposition should not proceed on March 29, 2021. [25] 26 1 As Plaintiff is proceeding without an attorney, the Court construes her filings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). [27] 2 Both parties requested emergency treatment of their discovery motions, so the Court 28 shortened briefing deadlines and did not allow replies. Docket No. 74. 1 II. STANDARDS 2 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. 3 Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574 , 598 4 (1998). Discovery is limited to any nonprivileged matter that is relevant to any party’s claim or 5 defense and is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). 6 “The discovery process in theory should be cooperative and largely unsupervised by the 7 district court.” Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). When an 8 amicable resolution to a discovery dispute cannot be attained, however, a party seeking discovery 9 may move the Court to issue an order compelling that discovery and a party seeking to avoid 10 discovery may move the Court to issue a protective order. Fed. R. Civ. P. 26(c), 37(a). The party 11 seeking to avoid discovery bears the burden of showing why that discovery should not be 12 permitted. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306 , 309 (D. Nev. 2019). A party seeking to 13 avoid her deposition bears a “heavy burden” of making a “strong showing” that the deposition 14 should not be permitted. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). 15 III. ANALYSIS 16 The primary issue presented in these competing motions is relatively straightforward. 17 Plaintiff alleges that Defendants have not complied with their discovery obligations in responding 18 to her discovery requests and, consequently, that Plaintiff should not be required to appear for her 19 deposition. Plaintiff seeks such relief as a means “to punish the Defendant and the Defendant’s 20 counsel.” Docket No. 71 at 6-7.3 Defendants counter that such an argument fails because parties 21 are required to fulfill their own discovery obligations regardless of arguments of an opponent’s 22 shortcomings. Docket No. 72 at 3-4. Defendants have the better argument. 23 Discovery is not designed to be a “tit-for-tat” system. Nat’l Acad. of Recording Arts & 24 Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 680-81 (C.D. Cal. 2009). Each party has [25] 3 Such theme is repeated in Plaintiff’s subsequent motion to strike Defendants’ motion to 26 compel. See Docket No. 78 at 2-3. Plaintiff is essentially asking the Court to strike Defendants’ motion to compel as a sanction for alleged bad faith conduct in discovery. See id. at 3-4. As 27 discussed herein, the Court finds Defendants’ motion to compel to be meritorious and, further, the Court disagrees with Plaintiff’s premise that she should be permitted to forego her own discovery 28 obligations based on her accusations of discovery violations by Defendants. 1 an independent responsibility to the Court and to the opposing party to provide discovery in 2 compliance with the governing rules. Cf. Fed. R. Civ. P. 1. “A party may not excuse its failure to 3 comply with discovery obligations by claiming that its opposing party is similarly delinquent. Nor 4 may a party condition its compliance with its discovery obligations on receiving discovery from 5 its opponent.” Fresenius Med. Care Holding Inc. v. Baxter Int’l, Inc., 224 F.R.D. 644, 653 (N.D. 6 Cal. 2004 ); see also Infanzon v. Allstate Ins. Co., 335 F.R.D. 305 , 312 (C.D. Cal. 2020) (collecting 7 cases); Lopez v. Don Herring Ltd., 327 F.R.D. 567 , 581 (N.D. Tex. 2018) (collecting cases). 8 Hence, what is effectively an “unclean hands” objection is simply not cognizable under the 9 governing rules as an appropriate basis on which to avoid discovery. Rood v. Liberty Ins. 10 Underwriters, Inc., 2018 U.S. Dist. Lexis 110332, at *3 (D. Nev. July 2, 2018) (quoting Public 11 Health Equip. & Supply Co. v. Clarke Mosquito Control Prods., Inc., 2011 WL 2470059 , at *2 12 (W.D. Tex. June 16, 2011)); see also Alutiiq Int’l Sols., LLC v. OIC Marianas Ins. Corp., 305 13 F.R.D. 618 , 625-26 (D. Nev. 2015). 14 In this case, Plaintiff seeks to avoid her deposition by asserting that Defendants’ discovery 15 efforts have not been sufficient to date. Such an argument does not provide a basis for Plaintiff to 16 avoid her own deposition.4 [17] 4 The other arguments raised by Plaintiff are also unpersuasive. For example, Plaintiff 18 argues without citation to legal authority that she need not attend her deposition because a proper Rule 26(f) conference was not held prior to entry of a scheduling order. Docket No. 77 at 8. The 19 Court has entered a scheduling order governing discovery, Docket No. 40, and the taking of a plaintiff’s deposition is a basic form of discovery that is permitted under the applicable rules. As 20 another example, Plaintiff argues that Defendants do not need her deposition because their alleged bad faith conduct should lead to case-dispositive sanctions. Docket No. 77 at 3-4. Plaintiff has 21 not actually filed a motion for such sanctions, however, and the Court has not made any findings that such sanctions might be appropriate in this case. Instead, the discovery dispute before the 22 Court is that Plaintiff is seeking to avoid her deposition based on her accusations of discovery violations, which is an argument that fails as a matter of law for the reasons discussed above. In 23 addition, Plaintiff makes vague reference to the deposition being potentially detrimental to her health, which the Court assumes relates to medical risks associated with the current pandemic. See 24 Docket No. 77 at 2, 3. Such assertion is not persuasive given that Defendants have agreed that Plaintiff’s deposition may take place remotely if that is her preference. See Docket No. 72 at 5; 25 see also Swenson v. GEICO Cas. Co., 336 F.R.D. 206 , 210, 211-12 (D. Nev. 2020) (“courts within the Ninth Circuit routinely highlight remote depositions as an effective and appropriate means to 26 keep cases moving forward notwithstanding pandemic-related restrictions” because, inter alia, holding depositions remotely eliminates the accompanying safety concerns). The Court will not 27 catalogue all other arguments to which Plaintiff alludes, often without citation to legal authority or meaningful development. Such arguments are rejected to the extent they are inconsistent with 28 the outcome of this order. V5 Technologies, 334 F.R.D. at 314 n.12. CONCLUSION 2 For the reasons discussed above, Plaintiff's motion for protective order is DENIED, Defendants’ motion to compel is GRANTED, and Plaintiffs motion to strike is DENIED. 4} Plaintiff is ORDERED to appear for her deposition at 9:00 a.m. on March 29, 2021. The deposition will proceed either by remote means or in person at the offices of Envision, located at 1050 Indigo Drive, Suite 140, Las Vegas, NV 89145. No later than March 22, 2021, Plaintiff must 7|| communicate in writing to defense counsel whether she prefers her deposition to take place 8|| remotely or in-person. Failure to comply with this order may result in the imposition of 9] sanctions, up to and including dismissal. 10 IT IS SO ORDERED. 11 Dated: March 18, 2021 12 a — a Nancy J. Koppes \ 13 United States Magistrate Judge