Use of Protective Order in Litigation to Prevent Fishing Expedition

When a plaintiff or plaintiffs file a civil lawsuit against a company or companies which it claims bears liability for some damages incurred by the plaintiff(s), after the initial filings of the Complaint by the plaintiff(s) and an Answer by the defendant(s), the parties commence a period (generally but not exclusively six months in duration) of what is known as “discovery”. The discovery process basically affords all litigants the opportunity to submit questions (or interrogatories) to other parties and possible witnesses, request pertinent documents related to the matter from other parties and witnesses and conduct oral depositions in which attorneys for one side can ask other parties and witnesses questions which will be transcribed by a certified court reporter for eventual production in the form of a transcript. The “discovery” process is just what it sounds like: a chance for all parties in a civil case to get the relevant information it needs to prove or challenge a case.

When a litigant is merely an individual person, his or her legal adversary can merely submit notice of its intent to conduct a deposition in order to get that individual’s answers to questions on the record. But when one of the parties is a corporation, if its legal adversary does not specify particular individuals which work or did work for that corporation to appear at a deposition in a case, it can conduct what is known as a Rule 30(b)(6) deposition.  When a legal adversary submits notice for such a deposition to a corporate litigant then the corporation must send any of its officers or employees who may have relevant information to appear at the deposition to answer questions that relate to the inquiry.

The recent case of Peshlakai v. Ruiz, No. CIV 13-0752 JB/ACT. (Dist. Court, D. New Mexico 2014) though, demonstrates how parties cannot just make broad demands for information and then ask that all people involved with a corporate litigant appear to address all such topics. In Peshlakai, a wrongful death action against a company that operates an Applebee’s Neighborhood Grill and Bar in Santa Fe, as well as other defendants, the attorneys wanted to take Rule 30(b)(6) depositions of corporate officers. An attorney for one of the plaintiffs submitted a list of 27 topics which he sought to discuss. The company responded by seeking a Motion for Protective Order on the grounds that the requests were too broad. Even after the parties sought to reach an accommodation on the matter by submitting narrower requests, the District Court still found that the scope of the amended requests of the plaintiff’s attorney was too broad. In effect, they amounted to a fishing expedition.

Accordingly, the United States District Court proceeded to partially grant the motion for protective order. It found the Plaintiff’s second notice of Rule 30(b)(6) deposition submitted after the Plaintiff was instructed by the Court was almost as broad as the first notice which the Court had deemed overly expansive. It also denied a motion by the Plaintiffs for sanctions against Applebee’s. The Plaintiffs felt the attorneys for Applebee’s had improperly advised witnesses it produced at the deposition to refuse to answer certain questions. The District Court believed the plaintiff’s counsel had gone beyond the scope of discovery rules in asking some of its question.

Many parties believe that filing a lawsuit against a corporation can enable it to proceed in an unfettered fashion in seeking information from such a party but a Motion for Protective Order gives any party, corporate or otherwise, the chance to streamline the lines of inquiry to those subjects which are reasonably calculated to lead to the discovery of relevant evidence.

The attorneys at Giddens & Gatton Law, PC represent individuals in personal injury suits, business litigation and in cases of elderly and health care law in New Mexico. The firm represents businesses and individuals in post-judgment collection matters.  Giddens & Gatton Law, PC is located at 10400 Academy Road N.E., Suite 350 in Albuquerque, New Mexico. Call the office at (505) 633-6298 to set up an appointment or visit the firm’s website at giddenslaw.com.