Order Granting Motions for Protective Order

[ECF Nos. 128, 129, 136]

JILL L. BURKHARDT, District Judge.

The Court hereby GRANTS Defendants' motions (ECF Nos. 128, 129) seeking a protective order from Plaintiffs' amended Fed. R. Civ. P. 30(b)(6) deposition notice to Defendant City of San Diego ("City") dated March 23, 2015 (ECF No. 129-4).

A Case Management Conference Order was issued in this case setting March 1, 2015 as the deadline for completion of fact discovery. As set forth in the Case Management Conference Order:

(ECF No. 32, ¶5 (emphasis in original).)

On November 3, 2014, Plaintiffs served an unquestionably timely deposition notice on the City pursuant to Federal Rule of Civil Procedure 30(b)(6). (ECF No. 129-3.) The City filed a motion for protective order, which was granted in part and denied in part. (ECF Nos. 36, 42.) Plaintiffs filed a motion for reconsideration, and then filed objections with the District Court. (ECF Nos. 46, 66.)1 The objections were overruled on March 16, 2015. (ECF No. 102.) The result of the several orders was that Plaintiffs could take a Fed. R. Civ. P. 30(b)(6) deposition of the City as to 20 of the 21 written topics contained in Plaintiffs' November 3, 2014 deposition notice (see ECF No. 36-3), as narrowed by the Court. (ECF Nos. 42, 59, 102.)

On March 20, 2015, the Parties filed a joint motion to continue the deadline for the depositions of three witnesses, including the City's 30(b)(6) witness(es). (ECF No. 103.) The joint motion stated, "Plaintiffs intend to depose the City's Persons Most Knowledgeable ("PMKs") regarding 20 topics." (Id.) This was consistent with the Court's orders on the permissible scope of the upcoming Fed. R. Civ. P. 30(b)(6) deposition. (ECF Nos. 42, 59.) On March 23, 2015, while the joint motion was pending and without notifying the Court, Plaintiffs served an amended notice of deposition of the City's 30(b)(6) witness(es) on 23 topics, including topics which had been precluded by the Court's prior orders. (ECF No. 129-4.) Unaware of the issuance of the amended notice, which was inconsistent with the representation of the pending joint motion, the Court granted the joint motion and extended the deadline for conducting the 30(b)(6) deposition to April 30, 2015. (ECF No. 107.)

The City and Defendant Robert Filner filed motions for protective order to preclude Plaintiffs from proceeding on the amended notice of deposition.2 Defendants' motions for a protective order are GRANTED for the following reasons:

First, the amended deposition notice is untimely. Thus, while the parties received extensions of time to complete the Fed. R. Civ. P. 30(b)(6) deposition, discovery did not reopen to allow for Plaintiff's March 23, 2015 amended deposition notice. Therefore, the Court grants Defendants a protective order as the March 23, 2015 deposition notice is untimely. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (a scheduling order is "not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.").

Second, a protective order also is warranted because the amended deposition notice failed to give Defendants reasonable notice. Fed. R. Civ. P. 30(b)(1) ("A party who wants to depose a person by oral questions must give reasonable written notice to every other party."). At the time the March 23, 2015 amended deposition notice issued, the court-ordered deadline to complete the Fed. R. Civ. P. 30(b)(6) deposition of the City was March 31, 2015. The March 23 amended notice set March 30 as the date for the deposition and made significant, substantive changes to the deposition topics. Seven days is insufficient notice for the City to be able to adequately prepare for its Fed. R. Civ. P. 30(b)(6) deposition, especially given the substantive changes to the notice.

Third, even if the Court were to rule on the merits of Plaintiffs' amendments to the deposition notice, Defendants' motions requesting a protective order would be granted. With respect to the April 16, 2015 notice, a protective order is appropriate concerning Topics 7, 8, 9, 10, and 11. As redrafted, Topics 7, 8, 10 and 11 add the language "conduct that did violate or may have violated employee behavior provisions in the City of San Diego Employee Handbook in effect at the time" in place of the previously rejected language: "abusive conduct." It would appear that Plaintiffs are disguising behind different language the same requests for discovery that the Court has already deemed unavailable to Plaintiffs in this litigation. Allowing this redraft would require this Court to revisit its prior rulings on Topics 1-18 (relating to any written, verbal or physical conduct of a sexual nature concerning claims of sexual harassment and sexual discrimination by Defendant Filner, and originally including "abusive conduct" language). Yet, there is nothing compelling before the Court to persuade it to do so. Thus, the law of the case doctrine also should apply to bar Plaintiffs' redraft of Topics 7, 8, 10 and 11. City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) (the law of the case "doctrine was designed to further the principle that in order to maintain consistency during the course of a single lawsuit, reconsideration of legal questions previously decided should be avoided.") (citation and quotation omitted)).

Next, as to Topic 9 (Defendant Filner's personnel file), any documents produced by the City in response to the Order Granting Plaintiffs' Motion to Compel (ECF No. 139) will be available to Plaintiffs for use in asking questions on the November, 2014 notice of deposition topics.3 Questions on the relevant substance of those documents are covered by the November, 2014 deposition topics (see ECF No. 36-3), as narrowed by the Court (ECF Nos. 42, 59, 102).4

IT IS SO ORDERED.