Scripps Health v. Nautilus Insurance Company ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SCRIPPS HEALTH, Case No.: 21-CV-1634-AJB(WVG) 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S EX PARTE MOTION FOR 14 NAUTILUS INSURANCE COMPANY, PROTECTIVE ORDER 15 Defendant. [ECF No. 47] 16 17 18 On December 29, 2022, Plaintiff Scripps Health (“Plaintiff”) filed an Ex Parte 19 Motion for Protective Order (“Ex Parte Motion”). (ECF No. 47.) The Ex Parte Motion 20 seeks an order from the Court requiring (1) the depositions of Plaintiff’s personnel be 21 conducted remotely or, in the alternative, requiring that all attendees of any in-person 22 deposition wear protective masks; and (2) precluding Defendant Nautilus Insurance 23 Company (“Defendant”) from taking more than 15 depositions. Id. 24 Pursuant to Judge Gallo’s Civil Chamber Rule VI, Defendant had until 5:00 p.m. on 25 December 30, 2022 to file an opposition brief. Since Defendant did not file an opposition 26 brief, the Court construes Plaintiff’s Ex Parte Motion as unopposed. 27 Accordingly, Plaintiff’s Ex Parte Motion is GRANTED in part and DENIED in 28 part. 1 I. LEGAL STANDARD 2 Rule 26(c) of the Federal Rules of Civil Procedure (“Rule 26(c)”) governs when a 3 court may issue a protective order. Rule 26(c)(1) provides: “A party or any person from 4 whom discovery is sought may move for a protective order in the court where the action is 5 pending—or as an alternative on matters relating to a deposition, in the court for the district 6 where the deposition will be taken.” Fed. R. Civ. P. 26(c)(1). The party seeking issuance 7 of a protective order bears the burden of demonstrating good cause. Grano v. Sodexo 8 Management, Inc., 335 F.R.D. 411, 414 (S.D. Cal. 2020). “The [C]ourt has wide discretion 9 to determine what constitutes a showing of good cause and to fashion a protective order 10 that provides the appropriate degree of protection.” Id.; see also Seattle Times Co. v. 11 Rhinehart, 467 U.S. 20, 36 (1984) (noting “Rule 26(c) confers broad discretion on the trial 12 court to decide when a protective order is appropriate and what degree of protection is 13 required.”). 14 II. DISCUSSION 15 a. Request for Remote Depositions 16 Plaintiff’s Ex Parte Motion argues a protective order is warranted as Defendant has 17 denied Plaintiff’s requests that any depositions for Plaintiff’s personnel be conducted 18 remotely, or in the alternative, requiring all attendees to wear protective facemasks 19 throughout any in-person depositions due to COVID-19. (ECF No. 47 at 3.) Plaintiff argues 20 its personnel have a legitimate basis for this request as Plaintiff is a health care system that 21 operates five hospitals and 19 outpatient facilities, subject to regulation by the California 22 Department of Public Health, among other agencies. Id. Plaintiff argues its facilities 23 implemented a COVID-19 Prevention Program governing all of its facilities and personnel 24 to ensure compliance with heightened standards disseminated by these agencies during the 25 COVID-19 pandemic, as well as the safety of its patients and employees, and one of the 26 core protocols requires personnel to practice social distancing and wear FDA-approved 27 protective facemasks in various situations, and the COVID-19 Prevention Program 28 requires that indoor meeting participants be afforded a virtual attendance option. Id. 1 The Ex Parte Motion asserts that Defendant has stated the basis for denying 2 Plaintiff’s request has been that “there are no federal, state, or local mask mandates 3 currently in place”. (ECF No. 47 at 7.) Plaintiff also argues Defendant has not made a 4 particularized showing for why remote depositions or masks would be prejudicial to 5 Defendant. Id. Plaintiff asserts Defendant has not objected on the ground that masks hide 6 the expressions of the deponent. Id. 7 The Court finds Plaintiff’s request to conduct its personnel’s depositions remotely 8 to be appropriate. In light of the COVID-19 Pandemic, courts in the Ninth Circuit have 9 routinely authorized depositions to proceed remotely. See, e.g Grano v. Sodexo 10 Management, Inc., 335 F.R.D. 411, 415 (S.D. Cal. 2020) (“Attorneys and litigants all over 11 the country are adapting to a new way of practicing law, including conducting depositions 12 and deposition preparation remotely.”); Swenson v. GEICO Cas. Co., 336 F.R.D. 206, 210 13 (D. Nev. 2020) (observing “courts within the Ninth Circuit routinely highlight remote 14 depositions as an effective and appropriate means to keep cases moving forward 15 notwithstanding pandemic-related restrictions”). The Southern District of California to this 16 day continues to operate pursuant to the emergency declaration announced under the 17 CARES Act. Remote depositions continue to be a prudent and effective way to conduct 18 discovery. 19 Accordingly, Plaintiff’s Ex Parte Motion’s request that the depositions of Plaintiff’s 20 personnel be conducted remotely is GRANTED. 21 b. Request to Limit Depositions 22 The Ex Parte Motion represents that Defendant intends to take more than twenty fact 23 depositions total – six Rule 30(b)(6) depositions (of Plaintiff and five third parties) and 24 sixteen individual depositions. (ECF No. 47 at 3-4.) Plaintiff contends a protective order is 25 warranted as Defendant has construed the Court’s language in an order issued on December 26 21, 2022 (ECF No. 45) to an illogical extreme which would allow Defendant to conduct an 27 unlimited number of depositions. (ECF 47.) According to Plaintiff, Defendant contends the 28 Court already ruled that the parties agreed to more than ten depositions per side, allowing 1 each side to take as many depositions as it wants. Id. Plaintiff disagrees with Defendant’s 2 interpretation of the Court’s December 21, 2022 Order – arguing the nature of this 3 insurance coverage dispute does not warrant “anywhere near 20 depositions by a single 4 party” (ECF No. 47 at 9:1-8) and the Court’s Order did not afford Defendant carte blanche 5 to take an unlimited number of depositions. (ECF No. 47-2 at 2-3.) 6 Plaintiff represents it has repeatedly offered to stipulate to more than the ten 7 depositions presumptively allowed by Rule 30, but Defendant’s counsel is unwilling to 8 limit itself to any number of depositions. Plaintiff’s Ex Parte Motion contends Defendant 9 failed to seek leave of the court, as required by Rule 30(a)(2) and has already noticed, or 10 stated an intent to notice, twenty-two depositions. (ECF No. 47 at 8; Soto Declaration, ¶ 11 7.) 12 The Court agrees that its December 21, 2022 Order (ECF No. 45) clearly was not an 13 open-ended invitation commencing the start of a free-for-all regarding depositions. By no 14 means was the Court’s December 21, 2022 Order issued to allow an unlimited number of 15 depositions to either party. This is clearly not aligned with the Federal Rules of Civil 16 Procedure. 17 However, the Court disagrees with Plaintiff’s contention that the Parties’ prior 18 contemplations for twenty or twenty-five depositions imposes upon Defendant the need to 19 seek leave of court to conduct more than the presumptive ten depositions allowed by Rule 20 30. As the Court’s December 21, 2022 Order states “the Parties long ago contemplated and 21 agreed numerous depositions, beyond ten, would occur in this case.” (ECF #45 at 5:13– 22 14.) Although Rule 30(a)(2) states parties must obtain leave of court when the parties have 23 not stipulated to depositions that may exceed ten depositions, the Court does not find leave 24 of court required in this instance because Plaintiff and Defendant made an implicit 25 agreement that at least twenty depositions would be required in this case. 26 The Court also finds Plaintiff’s representations that it has never stipulated to 27 allowing Defendant more than ten depositions to be disingenuous. On more than one 28 occasion, in filings jointly submitted to the Court, the Parties made representations that the 1 combined total number of depositions would surpass the ten presumptive depositions 2 allowed by Rule 30. Specifically, on February 16, 2022 in Joint Motion Requesting 3 Continuance of Fact Discovery Cut-Off Date, counsel wrote “Based on the Parties’ Rule 4 26 Disclosures of witnesses with discoverable information to support the Parties’ claims 5 and defenses, approximately 25 depositions will need to be taken in this case.” (ECF No. 6 13, 3 at ¶8, 10.) Then on April 22, 2022 in a Joint Discovery Plan signed and submitted by 7 Plaintiff’s current counsel, a second representation was made: “The Parties anticipate 8 needing an additional 90 to 120 days to notice and complete depositions after written 9 discovery is completed as this case will potentially require approximately 20 depositions.” 10 (ECF No. 24, 4 at ¶5.) 11 In both instances, counsel for both Parties jointly signed and submitted these filings 12 but did not delineate the number of depositions apportioned to each side. In the Ex Parte 13 Motion, Plaintiff represents it intends to take four depositions, which have been noticed. 14 (ECF No. 47 at 8). Although the joint filings did not specify the number of depositions 15 allowed by each side, at the time Plaintiff’s counsel met and conferred with Defendant’s 16 counsel and then drafted the document, Plaintiff’s counsel presumably knew of the number 17 of depositions she anticipated to take (four) and that the combined total of twenty 18 depositions necessarily would entail Defendant exceeding the ten deposition limit. While 19 Plaintiff’s current counsel may not have entered into an explicit agreement to allow 20 Defendant more than ten depositions, through the submission of the Joint Discovery Plans 21 and failure to apportion the number of depositions per party, Plaintiff acquiesced to a tacit 22 understanding and agreement that Defendant would be allowed to conduct more than ten 23 depositions. The Court finds an implicit agreement and stipulation existed between the 24 Parties as early as February 2022 and was later confirmed in the Joint Discovery Plan filed 25 on April 22, 2022. 26 Plaintiff’s Ex Parte Motion’s request to limit the number of depositions Defendant 27 may conduct is DENIED in part and GRANTED in part. Since the Parties implicitly 28 agreed to and made representations to the Court that twenty depositions would be required 1 || for this case, and Plaintiff has noticed four of its own depositions, the Court ORDERS the 2 || following: Defendant is limited to a total of sixteen allowed depositions. All depositions 3 ||remaining in this case shall be noticed, conducted, and completed by the January 18, 2023 4 || fact discovery deadline. 5 I. CONCLUSION 6 Plaintiff's Ex Parte Motion’s request that the depositions of Plaintiffs personnel be 7 ||conducted remotely is GRANTED. Plaintiff's Ex Parte Motion’s request to limit the 8 ||number of depositions Defendant may conduct is GRANTED in part and DENIED in 9 ||part. The Court ORDERS that Defendant shall conduct no more than a total of sixteen 10 || depositions by the fact discovery deadline of January 18, 2023. 11 IT IS SO ORDERED. 12 ||} DATED: December 31, 2022 13 | Ss 14 Hon. William V. Gallo United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28