United States District Court, D. Nebraska
TROY M. HURD, Plaintiff,
THE CITY OF LINCOLN, a political subdivision; TOM CASADY, in their individual and official capacities; JOHN HUFF, in their individual and official capacities; PAT BORER, in their individual and official capacities; ROGER BONIN, in their individual and official capacities; JEANNE PASHALEK, in their individual and official capacities; and LEO BENES, in their individual and official capacities; Defendants.
MEMORANDUM AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendant City of Lincoln and
Mayor Chris Beutler's Motion to Quash and/or Motion for
Protective Order. (Filing No. 85). For the following
reasons, the Motion to Quash motion will be granted.
Troy M. Hurd filed this employment action against the City of
Lincoln and six named defendants in their individual and
official capacities alleging the City took adverse action
against him in retaliation for filing complaints of
discrimination and retaliation. (Filing No. 1).
Plaintiff alleges claims arising under 42 U.S.C. § 1983,
Title VII of the Civil Rights Act, and the Nebraska Fair
Employment Practice Act. (Filing No. 18).
Final Progression Order was entered in June of 2016,
(Filing No. 13), and discovery has been extensive:
Plaintiff has deposed all but one named Defendant as well as
several other witnesses, and Defendants have produced over 6,
500 emails and attachments and over 49, 000 pages of
documents. Plaintiff now seeks to depose City of Lincoln
Mayor Chris Beutler, arguing Mayor Beutler has personal
knowledge of the investigation into Plaintiff's EEO
complaint and he supervised Kimberly Taylor-Riley, who
completed the investigation of Plaintiff's internal EEO
complaint. Plaintiff also seeks information from Mayor
Beutler regarding the City's “motivations”
concerning the outcome of Hurd's complaints with the
City of Lincoln and Mayor Beutler seek to quash
Plaintiff's Notice of Deposition of the Mayor,
(Filing No. 74), or in the alternative, they request
a protective order regarding the potential testimony by Mayor
Beutler. (Filing No. 85).
26(b)(1) of the Federal Rules of Civil Procedure was amended
on December 1, 2015. Rule 26 governs discovery and limits the
scope of discovery to
any nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). Courts should examine each case
individually to determine the weight and importance of the
burden of demonstrating the proportionality of the requested
information is a collective responsibility between the
parties and the court. Elizabeth D. Laporte &
Jonathan M. Redgrave, A Practical Guide to Achieving
Proportionality Under New Federal Rule of Civil Procedure 26,
9 Fed. Ct. Rev. 20, 40 (2015). A party requesting discovery
must show how the requested information is important to the
issues and resolution of the case. The responding parting
must show the expense and burden of responding. Id.
The court can then balance the parties' interests and
order discovery consistent with the proportionality mandated
under the federal rules.
In re United States (Holder), 197 F.3d 310, 313-14
(8th Cir. 1999), the movants argue that the deposition of
Mayor Beutler, a high ranking City official, should not be
allowed absent extraordinary circumstances. In re Holder
stated that ““[i]f other persons can provide the
information sought, discovery will not be permitted against
such an official.” Id. at 314. This is because
"high ranking government officials have greater duties
and time constraints than other witnesses [and] they should
not, absent extraordinary circumstances, be called to testify
regarding their reasons for taking official actions."
Id. at 313 (citations omitted).
does not dispute that Mayor Beutler is a high ranking
official, but instead argues that Mayor Beutler's
testimony is relevant, essential, unique, and cannot be
obtained from any alternative source. Specifically, Plaintiff
argues Mayor Beulter is a crucial witness who “most
likely played a part in some of the most critical decisions
made during and after the Hurd investigation[.]”
(Filing No. 90 at CM/ECF p. 12). Plaintiff cites several
examples of decisions the Mayor “may have” made.
But Plaintiff fails to provide more than mere conjecture and
conclusory statements regarding the potential testimony of
Mayor Beutler and that he is the sole source of that
information. Plaintiff has failed to show that any
information the Mayor has cannot be obtained from his
subordinates and/or other defendants or witnesses in this
date, Plaintiff has spent nearly 40 hours deposing defendants
and witnesses. Of the depositions conducted, each deposed
defendant has answered questions regarding his or her
knowledge of meetings with the Mayor and/or discussed the
Mayor's role in the investigation of Plaintiff's