United States District Court, N.D. Indiana, Fort Wayne Division
RANDELL J. FRAZIER, Plaintiff,
UNITED STATES OF AMERICA, Department of Veterans Affairs, Defendant.
OPINION AND ORDER
COLLINS UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion for a Protective Order
(ECF 16) and an accompanying memorandum in support thereof
(ECF 17) filed on August 15, 2019. Specifically, Defendant
seeks an order from this Court precluding Plaintiff from
taking a proposed deposition pursuant to Federal Rule of
Civil Procedure 30(b)(6) on the grounds that the deposition
would (1) exceed the limitations to discovery agreed to by
the parties, and (2) would be excessively burdensome and
irrelevant. (ECF 17). Plaintiff filed a response contending
that the requested deposition is within the agreed bounds of
discovery, would be relevant to resolving anticipated
dispositive motions, and, in any event, is not unduly
burdensome. (ECF 19). On September 3, 2019, Defendant filed
its reply. (ECF 20). As such, the issue is fully briefed, and
ripe for a ruling.
following reasons, the Court agrees with Plaintiff that the
proposed 30(b)(6) deposition is within the scope of
discovery, relevant, and not unduly burdensome. Accordingly,
Defendant's motion for a protective order (ECF 16) is
January 17, 2019, Plaintiff filed the present case against
the United States, alleging that Dr. Bradley R. Hammersley, a
podiatrist formerly employed by the Veterans Administration
Northern Indiana Health Care System, committed medical
malpractice against him. Because the Veterans Administration
of Northern Indiana Healthcare System is a part of the
Department of Veterans Affairs (VA), Plaintiff is seeking to
hold Defendant vicariously liable for Dr. Hammersley's
alleged medical malpractice under the Federal Torts Claims
Act (FTCA). (ECF 1). Plaintiff's suit is one of many
similar actions alleging medical malpractice by Dr.
Hammersley currently pending before the Court.
parties met pursuant to Federal Rule of Civil Procedure
26(f), and filed a Report of Parties Planning Meeting, which
included a proposed discovery plan. (ECF 10). Because the
issue of when Plaintiff's malpractice claim accrued may
preclude recovery due to the FTCA's two-year statute of
limitations, the parties agreed to limit discovery to the
“statute of limitations issue first.”
(ECF 10 at 3) (emphasis in original). The plan also notes,
though, that Plaintiff sought to at some point conduct
discovery as to whether Defendant engaged in
“fraudulent concealment, ” which could trigger
equitable tolling of the statute of limitations. (ECF 10 at
3-4). The Court subsequently adopted the discovery schedule
set out under the plan during the parties' Rule 16
preliminary pretrial conference. (ECF 15). According to the
parties' discovery plan, they anticipate filing
dispositive motions on the statute of limitations issue once
the depositions of Plaintiff and Dr. Hammersley regarding the
statute of limitations issue has been completed. (ECF 10 at
4). All other discovery on the merits of Plaintiff's
claim is postponed until after the discovery on the statute
of limitations issue is complete. (Id.).
12, 2019, Plaintiff forwarded a proposed Rule 30(b)(6) Notice
of Deposition for the United States Department of Veteran
Affairs requesting Defendant appoint a representative to be
prepared to testify about and produce documents regarding
thirty-nine topics concerning Dr. Hammersley's employment
with and termination from the VA. Broadly, Plaintiff is
seeking through the deposition: (1) Dr. Hammersley's VA
employment history; (2) the identity of individuals involved
in Dr. Hammersley's management, supervision, employment,
and termination; (3) the identity of individuals who may have
reviewed or raised concerns regarding Dr. Hammersley's
work as a podiatrist; (4) the dates that such concerns or
suspicions were brought to Dr. Holly Becker and the dates
that Dr. Becker was assigned to, and actually began to,
review the care provided by Dr. Hammersley; (5) the dates
regarding any review of Dr. Hammersley's work and the
identity of any person who performed such review; (6) the
date of Dr. Hammersley's termination; (7) the identity of
any individual who was interviewed or who sent or received
documents concerning Dr. Hammersley as part of an internal or
external investigation; (8) any hierarchical or disciplinary
information concerning the hospitals where Dr. Hammersley
worked; and (9) any and all documentation or communication
concerning the same. (ECF 17-1).
argues, in part, that these topics are not relevant to the
issue of when Plaintiff's injury accrued for the purposes
of the statute of limitations, and therefore should not be
subject to discovery. (ECF 17 at 2). Specifically, Defendant
argues that the agreement to limit the discovery to the
statute of limitations was meant to limit discovery first to
the accrual date of Plaintiff's claim and only
subsequently to issues relating to equitable tolling. (ECF
17). Therefore, any discovery as to equitable tolling of the
statute of limitations should not be addressed until
discovery regarding the accrual date is complete. (ECF 17 at
2). Plaintiff in turn argues that the “statute of
limitations” issue necessarily includes the equitable
tolling issue, and that precluding discovery on the equitable
tolling issue would only delay the case and the filing of any
dispositive motions. (ECF 19 at 4).
also argues, in the alternative, that even if the topics
identified in the proposed notice are within the agreed scope
of discovery, the request is overly burdensome. In support of
its position, Defendant notes that it has begun compiling
emails and documents and has found over 4.4 million
responsive documents to Plaintiff's
request. (ECF 17 at 8-9). At the very least,
Defendant suggests that the same information can be gained
through less labor-intensive forms of discovery, such as
requests for production or interrogatories. (ECF 17 at 7-8).
Plaintiff in response notes that Defendant has not
specifically stated what would be burdensome about producing
the material it has already begun to compile, and that any
other type of discovery would necessarily require Defendants
to compile and review the same material. (ECF 19 at 10).
Defendant also argues that the information sought by
Plaintiff is disproportionate to his needs and is not even
relevant to the equitable tolling issue. (ECF 20 at 4-5).
Regarding the relevancy of the requested material to the
fraudulent concealment argument, Defendant contends that only
information regarding “affirmative efforts by the VA
directed toward plaintiff which might have persuaded
plaintiff not to timely pursue an ‘accrued
claim'” would be relevant. (Id. at 5).
general, “magistrate and district courts enjoy
extremely broad discretion in controlling discovery.”
Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th
Cir. 2013). Similarly, “Rule 26(c) confers broad
discretion on the trial court to decide when a protective
order is appropriate and what degree of protection is
required.” Ball Corp. v. Air Tech of Michigan,
Inc., 329 F.R.D.
(quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36 (1984)). Pursuant to Federal Rule of Civil Procedure
26(c)(1), “[t]he court may, for good cause issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . .
.” This includes limiting the method and manner in
which discovery is to be sought. See Olivieri v.
Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997) (finding
that a district judge ordering a party to first use
interrogatories before deposing the Chicago Public Schools
superintendent was not an abuse of discretion). The party
seeking the protective order bears the burden of showing good
cause exists for the order. Johnson v. Jung, 242
F.R.D. 481, 483 (N.D. Ill. May 10, 2007). “Conclusory
statements of hardship are not sufficient to carry this
burden.” Id. (citations omitted). “To
establish good cause under Rule 26(c), the courts have
generally required specific examples of articulated
reasoning, as opposed to stereotyped and conclusory
statements.” Andrew Corp. v. Rossi, 180 F.R.D.
338, 341 (N.D. Ill. 1998) (internal citations and quotation
while a pretrial scheduling order under Federal Rule of Civil
Procedure Rule 16 “should not be changed lightly[, ] .
. . total inflexibility is undesirable. Fed.R.Civ.P. 16(e)
advisory committee's note to 1983 amendment (citation
omitted). “By not imposing any limitation on the
ability to modify a pretrial order, the rule reflects the
reality that in any ...