Hurd v. City of Lincoln, No. 4:16-CV-3029, 2017 U.S. Dist. LEXIS 210104 (D. Neb. Dec. 21, 2017).

In this employment discrimination and retaliation case, the plaintiff sought to depose the defendant City’s mayor. The court granted the City’s motion to quash that request, finding that the mayor’s deposition was not proportional to the needs of the case.

The plaintiff, Troy Hurd, filed this employment case alleging that the City of Lincoln and six named defendants (collectively referred to as “the City”) retaliated against him for complaining about discrimination. In the course of “extensive” discovery, Hurd deposed five named defendants in addition to other witnesses. The City also produced over 6,500 emails and another 49,000 pages of discoverable documents.

Hurd then noticed a deposition of the City’s mayor. Hurd argued that the mayor had “personal knowledge of the investigation” and of the City’s “motivations” regarding his complaints. The City moved to quash that deposition or, in the alternative, to obtain a protective order for the mayor’s testimony.

The court began its analysis by noting that under Rule 26(b)(1), discovery is limited to nonprivileged matters that are relevant and proportional to the needs of the case. Further, the burden to “show how the requested information is important” is on the party requesting discovery.

Citing In re United States (Holder), the City argued that the mayor is a “high-ranking government official” with “greater duties and time constraints” than other witnesses. The court agreed with the City’s assertion that except in “extraordinary circumstances,” the mayor should not be deposed.

Hurd conceded that the mayor is a high-ranking official but nonetheless argued that his testimony would be “essential [and] unique” such that no “alternative source” could replace it. But Hurd offered no evidence to support those assertions. Instead, he relied on “mere conjecture and conclusory statements” about what the mayor might testify to.

The court noted that in the “nearly 40 hours” of depositions that had already occurred, each deponent had answered questions about the mayor’s involvement in Hurd’s EEO complaints. Additionally, none of the 6,500 emails produced in discovery was to or from the mayor.

Therefore, the court held that Hurd failed to establish that the mayor’s deposition would be either necessary or proportional to the needs of the case. The court granted the City’s motion to quash.

Takeaways on making your case

Don’t make the plaintiff’s mistake here of relying on “mere conjecture and conclusory statements.” Point the court directly to whatever evidence you have that a witness has relevant and proportional information. Here, the court noted that none of the produced emails involved the mayor. If the plaintiff thought the city withheld emails involving the mayor, he should have moved to compel their production.

Questions about proportional discovery?

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