United States District Court, D. Nebraska
AGRI STRAGETIES, INC., a Nebraska Corporation, Third-Party Plaintiff,
NGP, LLC, an Iowa limited liability company, and HOBERMAN FARMS, LLC, an Iowa limited liability company, Third-Party Defendants.
MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion for Protective Order
and Request for Expedited Relief (Filing No. 85)
filed by Third Party Plaintiff, Agri Strategies, Inc.
(“Agri Strategies”). Agri Strategies requests a
protective order continuing the deposition of its former
employee and third party, Scott Vandenberg, noticed for
tomorrow, September 22, 2017. The Court will grant the
August 24, 2017, counsel for Agri Strategies contacted
counsel for Hoberman Farms to schedule a deposition of John
Hoberman. (Filing No. 86 at p. 13). Counsel were
eventually able to agree on September 21, 2017, as the date
for Mr. Hoberman to be deposed, and on August 30, 2017, Agri
Strategies filed an Amended Notice of Deposition setting Mr.
Hoberman's deposition for September 21, 2017. (Filing
September 7, 2017, Agri Strategies issued a document subpoena
to Mr. Vandenberg's employer, Premier Pork Marketing,
requesting documents to be produced on September 25, 2017.
(Filing No. 86 at p. 24). Agri Strategies represents
to the Court that these documents are necessary to be fully
prepared for Mr. Vandenberg's deposition.
September 11, 2017, counsel for Hoberman Farms advised
counsel for Agri Strategies by telephone that Mr. Hoberman
was now unavailable for his deposition on September 21, 2017,
and asked to reschedule. (Filing No. 86 at p. 11).
Agri Strategies proposed September 19, 20, or 22, 2017, as
new dates. Counsel for Hoberman Farms stated none of those
dates worked, and the parties were able to agree on September
25, 2017, as the new date for Mr. Hoberman's deposition.
(Filing No. 86 at p. 11). Apparently, the subject of
Mr. Vandenberg's deposition was discussed during the
telephone conversation. (Filing No. 86 at p. 17).
September 12, 2017, counsel for Hoberman Farms advised Agri
Strategies by email that Hoberman Farms would be deposing Mr.
Vandenberg on September 22, 2017, and Mr. Hoberman would be
in attendance. (Filing No. 86 at pp. 15-17). Counsel
for Hoberman Farms advised Agri Strategies that he
“want[s] to take [Vandenberg's deposition] before
you depose my client [Mr. Hoberman].” (Filing No.
86 at p. 16). Hoberman Farms then noticed Mr.
Vandenberg's deposition for September 22, 2017, without
counsel's agreement. The email notice of deposition was
sent to Agri Strategies on September 14, 2017. (Filing
Strategies has moved for a protective order pursuant to
Fed.R.Civ.P. 26(c)(1)(B), on the grounds that Mr.
Vandenberg's deposition was not reasonably noticed and
because Hoberman Farms' counsel is engaging in improper
tactics. “A party who wants to depose a person by oral
questions must give reasonable written notice to every other
party.” Fed.R.Civ.P. 30(b)(1). Under the circumstances,
the Court finds Hoberman Farms' notice was not
reasonable. Hoberman Farms provided Agri Strategies with only
eight days' written notice of Mr. Vandenberg's
deposition. Hoberman Farms emailed notice to Agri Strategies
on September 14, 2017, for a deposition scheduled for
September 22, 2017 (a date that Hoberman Farms represented
the day before was unavailable for Mr. Hoberman to be
deposed, although Mr. Hoberman could be in attendance at Mr.
Vandenberg's deposition). The only reason cited by
Hoberman Farms for setting Mr. Vandenberg's deposition
for September 22 is its desire to have Mr. Vandenberg's
deposition proceed before Mr. Hoberman's.
true that Rule 26(d) eliminates any fixed priority in the
sequence of discovery, including the rule developed by courts
conferring priority on the party to first serve notice of
taking depositions. See Fed.R.Civ.P. 26(d); Committee Note to
1970 amendment of Rule 26(d), 48 F.R.D. 487, 507 (1969);
The Former Priority Rule, 8A Fed. Prac. & Proc.
Civ. § 2045 (3d ed.). However, the Court may order
discovery to occur in a particular sequence “in the
interests of justice.” Fed.R.Civ.P. 26(d). District
courts have broad discretion to limit discovery and decide
discovery motions. Pavlik v. Cargill, Inc., 9 F.3d
710, 714 (8th Cir. 1993).
interest of justice, and for good cause shown by Agri
Strategies, the Court finds that Mr. Vandenberg's
deposition set for September 22, 2017, should be canceled.
Agri Strategies has demonstrated a reasonable basis to take
Mr. Vandenberg's deposition after it receives the
documents responsive to the document subpoena. This will
obviate Agri Strategies' concern that it may need to
depose Mr. Vandenberg twice. Hoberman Farms has not
demonstrated a reasonable basis to delay Mr. Hoberman's
deposition. Agri Strategies should be permitted to depose Mr.
Hoberman on the parties' agreed upon date of September
25, 2017. Mr. Vandenberg's deposition shall be
rescheduled on a date after Mr. Hoberman's deposition and
after Agri Strategies has received responses to its document
subpoena. Accordingly, IT IS ORDERED: The
Motion for Protective Order and Request for Expedited Relief
(Filing No. 85) is granted. Mr. Vandenberg's
deposition set for September 22, 2017, ...