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Lovato v. Wal-Mart Stores, Inc.

United States District Court, N.D. Indiana, Hammond Division

May 25, 2017




         This matter is before the Court on a Defendant's Motion for Protective Order Regarding Plaintiff's Rule 30(B)(6) Deposition Notice [DE 21], filed on May 5, 2017, by Defendant Wal-Mart Stores, Inc. (“Walmart”). Plaintiff Christella Lovato filed a response on May 9, 2017. Walmart filed a reply on May 17, 2017, the day after the deadline to do so expired.

         As an initial matter, the Court notes that Lovato's response purports to also bring a motion for sanctions. Northern District of Indiana Local Rule 7-1(a) requires motions to be filed separately. Accordingly, the motion for sanctions is not properly before the Court, and the Court does not consider it.

         In the Motion for Protective Order, Walmart asks the Court to issue a protective order that (1) stays the deposition of its Rule 30(b)(6) witnesses until a date mutually agreeable to the parties, (2) requires all such depositions to take place in Bentonville, Arkansas, and (3) limits the scope of the topics identified for the deposition. Lovato objects to Walmart's request.


         A. Local Rule 37-1

         Local Rule 37-1 requires a party filing any discovery motion to file a separate certification that the party has conferred in good faith or attempted to confer with the other affected parties in an effort to resolve the matter raised in the motion without the Court's involvement. N.D. Ind. L.R. 37-1(a).

         Walmart's certification satisfies the requirement as to the date of the deposition. As to the location and topics of the deposition, however the certification and the evidence to which it cites are insufficient. The email correspondence between the parties does not reveal satisfactory conferral regarding the location of the deposition or objections to the topics identified in the Amended Notice of Deposition. Further, Walmart's certification indicates that Walmart sent its objections to the Amended Notice of Deposition to Lovato on May 2, 2017. In sending those objections, Walmart asked Lovato to let Walmart know when Lovato would be available to discuss the objections. Walmart did not specify by what time and date Walmart wanted to hear from Lovato. Walmart's certification states that Plaintiff's counsel had not responded to Walmart's objections before the filing of the Motion for Protective Order on May 5, 2017. Nothing before the Court suggests that Walmart followed up with Lovato to see if she intended to participate in discussion of the issues.

         Given that the email correspondence only discussed the date of the deposition and that Walmart waited only three days before filing the Motion for Protective Order, the Court finds that Walmart has neither conferred in good faith nor sufficiently attempted to confer with Lovato regarding the location and topics of the deposition.

         The objections to the topics of the deposition appear to be matters that would benefit from the required conferral. Pursuant to Local Rule 37-1(b), the Court denies the Motion for Protective Order as to the topics of the deposition.

         As to the location of the deposition, however, it appears from the briefing of the instant motion that the parties are at an impasse that will not be resolved through additional discussion. Further, resolution of this narrow issue will aid the parties in selecting a new deposition date, as it will inform the parties and witnesses as to where they will need to be on the deposition date. The local rule does not mandate denial of every motion that fails to make the required certification. See N.D. Ind. L.R. 37-1(b) (“The court may deny any motion . . . if the required certification is not filed.” (emphasis added)). Therefore, the Court exercises its discretion to rule on the motion as to the deposition's location on the merits.

         B. Date and Location of Deposition

         Walmart first asks that the deposition be stayed until a date mutually agreeable to the parties. Walmart argues that Lovato unilaterally set the deposition date. Lovato, in her response, indicates that she had made four attempts over nearly two months to obtain deposition dates from Walmart (albeit for the depositions of witnesses Westenfeld, Preston, and Jenkins) and that Walmart had provided no such dates. Further, Lovato states that when she noticed Walmart for the deposition she asked Walmart to notify her within 14 days if the date selected was acceptable. Walmart did not object to the chosen date until 16 days later.

         Northern District of Indiana Local Rule 30-1 requires attorneys to “try in good faith to schedule depositions to avoid calendar conflicts.” N.D. Ind. L.R. 30-1(a). Both parties could have been more accommodating in scheduling this deposition. Lovato could have been willing to reschedule the deposition when Walmart's objection to the selected date was two days late (but still 11 days before the scheduled deposition) or could have sent an email specifically asking for deposition dates for the Rule 30(b)(6) witnesses before issuing a notice of deposition. Walmart could have proposed deposition dates when asked to do so and could have indicated that Lovato's selected date was unacceptable within the ...

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