United States District Court, W.D. Kentucky, Paducah Division
JEFFREY J. MAURER PLAINTIFF
SARAH JONES DEFENDANT
OPINION AND ORDER
King, Magistrate Judge
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny King for ruling on all discovery motions. (Docket
# 11). At Defendant's request, the Court held a
telephonic discovery conference on March 26, 2018. Counsel
for both parties attended.
filed a Motion for Protective Order on March 26, 2018,
without obtaining leave of Court in violation of the
Scheduling Order. (Docket # 13). Plaintiff filed its Response
after the discovery conference. (Docket # 14).
to Federal Rules of Civil Procedure 26(c)(1)(E) and Federal
Rules of Evidence 615, Defendant seeks to exclude Mr. John
Daniel from attending Defendant's deposition.
leave to file the Motion for Protective Order (Docket # 13)
is GRANTED. No Reply Brief will be allowed.
Court having considered the statements in the Motion for
Protective Order and Plaintiff's Response, as well as
oral arguments made during the discovery conference, the
Motion for Protective Order is DENIED.
30(c) of the Federal Rules of Civil Procedure was amended in
1993 to make it clear that deposition witnesses are not
subject to sequestration as a matter of course. Rule 30(c)
now provides in relevant part that the “examination and
cross-examination of witnesses [at oral depositions] may
proceed as permitted at the trial under the provisions of the
Federal Rules of Evidence except Rules 103 and
615.” Fed.R.Civ.P. 30(c) (emphasis added). Rule
615 of the Federal Rules of Evidence provides that the Court,
upon request, will “order witnesses excluded so that
they cannot hear the testimony of other witnesses.” The
1993 Advisory Committee Notes to Fed.R.Civ.P. 30(c) emphasize
that Rule 615's exclusion from Rule 30(c) was intended to
establish a general rule that “other witnesses are not
automatically excluded from a deposition simply by the
request of a party.” See generally McKenna v.
Chesnoff, No. 2:14-cv-01773-JAD-CWH, 2017 WL 714342,
adopted by, WL 4932913 (D. Nev. Oct. 31, 2017).
Instead, exclusion of individuals from depositions requires
that the Court grant a protective order pursuant to Rule
26(c). Conrad v. Bd. of Johnson Cty. Kan.
Comm'rs, CIVIL ACTION No: 00-2277-DJW, 2001 WL
1155298, at *1 (D. Kan. Sept. 17, 2001) (citing Jones v.
Circle K Stores, Inc., 185 F.R.D. 223, 224 (M.D. N.C.
1999)); see also AG Equip. Co. v. AIG Life Ins. Co.,
07-CV-556-CVE-PJC, 2008 WL 3992789, at *1 (N.D. Okla. Aug.
Rule of Civil Procedure 26(c) provides that upon a showing of
good cause, a court “may make any order which justice
requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or
expense.” See generally In re Wilkinson, 137
F.3d 911, 918 (6th Cir. 1998); Stone v. City of Grand
Junction, Tenn., 1:10-CV-01088-JDB, 2010 WL 4569073, at
*1 (W.D. Tenn. Nov. 4, 2010). That includes an order that
excludes other witnesses and non-party witnesses.
Fed.R.Civ.P. 26(c) (5); see e.g. Galella v. Onassis,
487 F.2d 986, 997 (2d Cir. 1973) (excluding a party on the
finding there was cause to believe he would harass the
deponent and he had demonstrated a complete disregard for the
judicial process); Stone, 2010 WL 4569073, at *1
(W.D. Tenn. Nov. 4, 2010) (excluding a non-party witness upon
good cause shown due to the relationships and circumstances
of the case); Hamon Contrs., Inc. v. Dist. Court,
877 P.2d 884, 887 (Colo. 1994) (finding the exclusion of a
party from a pretrial deposition is only permitted rarely and
under extraordinary circumstances); BCI Commun. Sys.,
Inc. v. Bell Atlanticom Sys.t Inc., 112
F.R.D. 154, 157 (N.D. Ala. 1986) (finding there must be a
proper showing to exclude a party from a deposition and that
this should be a rare event).
Defendant seeks to prevent Mr. John Daniel from attending
Defendant's deposition. Defendant argues that Mr.
Daniel's "non-party attendance" should be
prohibited because Defendant does not know if Plaintiff
intends to call him as a witness. Additionally, Defendant
argues that because Mr. Daniel is not a party or currently a
witness to this case, the only other purpose for his
attendance would be to unduly harass, annoy or intimidate the
witness/party. However, such speculation does not meet
Defendant's burden of showing "good cause"
under Rule 26(c)(1)(E). A request for a protective order
"must be illustrated with 'a particular and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.'" In re Air Crash at
Lexington, No. 5:06-CV-316-KSF, 2008 U.S. Dist. LEXIS
3865, at *31 (E.D. Ky. Jan. 17, 2008) (citing Nemir v.
Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir.
2004) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89,
102 n. 16 (1981)); see also Murillo v. Dillard,
l:15-CV-00069-GNS, 2017 WL 471570, at *2, objections
overruled, 2017 WL 2417953 (W.D. Ky. June 2, 2017).
Defendant's assertions do not warrant a protective order
in this case.