ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER [DOCKET 90]
INTRODUCTION
This matter is before the court pursuant to defendant’s motion for a protective order and for an order quashing plaintiffs amended notice of a Rule 30(b)(6) deposition. [Docket 90]. Defendant has represented to the court that it has made a good-faith effort to resolve this dispute without the court’s intervention. See Docket 91. Defendant’s motion was referred to this magistrate judge for resolution pursuant to Chief Judge Karen E. Schreier’s order dated November 3, 2008. [Docket 94].
FACTS AND PROCEDURAL HISTORY
The court incorporates by reference the facts and procedural history set forth in the court’s previous orders in this case, see Dockets 132 & 137, and, thus, will limit its recitation to those facts pertinent to the instant motion.
On September 12, 2008, Mr. Murphy served Kmart Corporation (hereinafter “Kmart”) with notice of his intent to depose Jerry Rudrude pursuant to Federal Rule of Civil Procedure 30(b)(6), also listing the categories of information or “subjects of examination” that would be covered at the deposition. See Docket 92, Exh. 1. In response, Kmart contacted Mr. Murphy’s counsel to state its objections to the designation of Jerry Rudrude as a Rule 30(b)(6) witness and to
On September 23, 2008, Mr. Murphy filed a Rule 30(b)(6) deposition notice that did not designate any specific individual as the apprоpriate deponent. See Docket 47. In this filed notice, Mr. Murphy included additional subjects of examination and left the previously-listed categories unaltered. Id. Kmart again objected, on the same grounds cited above, to each subject of examination. See Docket 92, Exh. 2.
After several communications between the parties, Mr. Murphy’s counsel agreed to consider Kmart’s objections and to file an amended notice. See Docket 92, Affidavit of Fiske. On October 15, 2008, Mr. Murphy filed an amended notice of Rule 30(b)(6) deposition, modifying many subjects of examination primarily by limiting the time period and/or geographic area that would be covered. See Docket 66. Kmart contacted Mr. Murphy’s counsel to discuss Kmart’s continuing objections to the amended notice, but did not resolve the issue to its satisfaction. See Docket 92, Affidavit of Fiske; see also Docket 117, Affidavit of Lee. Kmart also declined to identify the corporate designee(s) that would serve as the Rule 30(b)(6) deponent(s). See Docket 117, Affidavit of Lee.
On October 31, 2008, Kmart filed a motion for a protective order prohibiting Mr. Murphy from deposing Kmart’s corporate desig-nee^) regarding the subjects of examination listed in the amended notice. See Dockets 90 & 91. Kmart moves the court to quash the amended notice in its entirety. Id. Kmart also moves the court to award its reasonable attorney’s fees and costs incurred in filing the instant motion. Id. In general, Kmart argues that the subjects of examination are too vague to properly prepare the deponent and that the subjects cover information that exceeds the scope of allowable discovery— information that is irrelevant to Mr. Murphy’s claims, unduly burdensome, and dupli-cative of materials already disclosed. Kmart’s arguments in support of its motion are set out in greater detail below as are Mr. Murphy’s arguments in opposition to the motion.
DISCUSSION
A. Scope of Discovery Under Rule 26
Federal Rule of Civil Procedure 26(b)(1) sets forth the standard governing the scope of discovery in civil cases:
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
See Fed.R.Civ.P. 26(b)(1).
The advisory committee’s note to the 2000 amendments to Rule 26(b)(1) provide guidance on how courts should define the scope of discovery in a particular case:
Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties’ claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the*501 action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, or involving the same product, could be properly discoverable under the revised standard---- In each case, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action. The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings---When judicial intervention is invoked, the actual scope of discovery should be determined according tо the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.
See Fed.R.Civ.P. 26(b)(1) advisory committee’s note.
The same advisory committee’s note further clarifies that information is discoverable only if it is relevant to the claims or defenses of the case or, upon a showing of good cause, to the subject matter of the case. Id.; see also Prokosch v. Catalina Lighting, Inc.,
While the standаrd of relevance in the context of discovery is broader than in the context of admissibility (Rule 26(b) clearly states that inadmissibility is no grounds for objection to discovery), this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.
Hofer,
Discoverable information itself need not be admissible at trial; rather, “discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence.” See Fed.R.Civ.P. 26(b)(1) advisory committee’s note. Additionally, Rule 26(b)(2) requires the court to limit discovery if it determines, for example, that the discovery sought is unreasonably cumulative or duplicative or that “the burden or expense of the proposed discovery outweighs its likely benefit ...” See Fed.R.Civ.P. 26(b)(2)(C); see also Roberts v. Shawnee Mission Ford, Inc.,
B. Standard Governing Requests for Protective Orders
Federal Rule of Civil Procedure 26(c) governs the granting of a protective order by the court, as follows:
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
See Fed R. Civ. P. 26(c).
The trial court has significant discretion in either granting or denying a protective order, and “only an abuse of that discretion would be cause for reversal.” General Dynamics Corp. v. Selb Mfg. Co.,
In Pansy, The Third Circuit set forth a thoughtful analysis of the good-cause standard that this court finds instructive. Although Pansy dealt specifically with the issue of whether the trial court abused its discretion in first granting and then subsequently refusing to modify a confidentiality order over a settlement agreement, confidentiality orders over matters concerning stages of litigation and protective orders over discovery are “functionally similar, and require similar balancing between public and private concerns.” Pansy,
In considering whether good cause exists for a protective order, the federal courts have generally adopted a balancing process ____[T]he court ... must balance the requesting party’s need for information against the injury that might result if uncontrolled disclosure is compelled. When the risk of harm to the owner of [a] trade secret or confidential information outweighs the need for discovery, disclosure [through discovery] cannot be compelled, but this is an infrequent result.
Once the court determines that the discovery policies require that the materials be disclosed, the issue becomes whether they should “be disclosed only in a designated way,” as authorized by the last clause of Rule 26(c)(7)____Whether this disclosure will be limited depends on a judicial balancing of the harm to the party seeking protection (or third persons) and the importance of disclosure to the public. Courts also have a great deal of flexibility in crafting the contents of protective orders to minimize the negative consequences of disclosure and serve the public interest simultaneously.
Id. at 787 (additional citations omitted).
The balancing test requires courts to consider a variety of factors to determine if a protective order is appropriate. Id. at 789. These factors, discussed below, “are unavoidably vague and are of course not exhaustive” so as to provide courts with “the flexibility needed to justly and properly” resolve discovery disputes. Id.
One interest which should be recognized in the balancing process is an interest in privacy. It is appropriate for courts to order confidentiality to prevent the infliction of unnecessary or serious pain on parties who the court reasonably finds are entitled to such protection. In this vein, a factor to consider is whether the information is being sought for a legitimate purpose or for an improper purpose. However, privacy interests are diminished when the party seeking protection is a public person subject to legitimate public scrutiny.
While preventing embarrassment may be a factor satisfying the “good cause” standard, an applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious. As embarrassment is usually thought of as a non-monetizablе harm to individuals, it may be especially difficult for a business enterprise, whose primary measure of well-being is presumably monetizable, to argue for a protective order on this ground. Circumstances weighing against confidentiality exist when confidentiality is being sought over information important to public health and safety and when the sharing of information among litigants would promote fairness and efficiency.
A factor which a court should consider in conducting the good cause balancing test is whether a party benefitting from the order of confidentiality is a public entity or official. Similarly, the district court should consider whether the case involves issues important to the public____ [I]f a case involves private litigants, and concerns matters of little legitimate public interest, that should be a factor weighing in favor of granting or maintaining an order of confidentiality.
Id. at 787-88 (internal quotation marks, footnotes, and citations omitted).
When dealing with sensitive or proprietary information, courts routinely grant protective orders that limit who may access
C. Federal Rule of Civil Procedure 30(b)(6)
Federal Rule of Civil Procedure 30(b)(6) governs depositions of organizational entities and provides as follows:
(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
See Fed.R.Civ.P. 30(b)(6).
In 1970, Congress substantively amended Rule 30(b)(6) to place the burden on the organizational entity to designate the appropriate representative(s) to testify on its behalf. See Fed.R.Civ.P. 30(b)(6) advisory committee’s note. This amendment serves three useful purposes. See id. First, it reduces the difficulties experienced by the party requesting the deposition in determining whether a particular organizational employee was a “managing agent.” Id. Second, it curbs the “bandying” by which various organizational officers or agents, while being deposed, disclaim knowledge of facts clearly known by some other officer or agent of the organization. Id.; see also Prokosch,
“[T]he effectiveness of the Rule bears heavily upon the parties’ reciprocal obligations.” Prokosch,
D. Mr. Murphy’s Amended Notice of Rule 30(b)(6) Deposition
1. First Subject of Examination
The first subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[t]he corporate history of Kmart Corporation, Kmart Holding Corporation, Sears Corporation, and Sears Holdings Corporation for the last ten (10) years, i.e., relationship of Kmart Corporation, Kmart Holding Corporation, Sears Corporation, and Sears Holdings Corporation and the bankruptcy in 2001.” [Doсket 66]. Kmart objects to this line of inquiry on a variety of grounds. See Docket 91.
First, Kmart objects to any inquiry into the corporate history of any entity other than Kmart Corporation, the named defendant. Id. Kmart also argues that, even if the inquiry is limited to Kmart Corporation, it is “overbroad and burdensome in that it seeks tremendous amounts of corporate information wholly unrelated to any aspect of plaintiffs claims in this case, and which is not reasonably contemplated to lead to the discovery of relevant evidence.” Id. Kmart also argues that the information sought by Mr. Murphy is available through less burdensome means, i.e., company internet sites. Id. Finally, Kmart argues that Mr. Murphy failed to describe this inquiry with “painstaking specificity” so as to allow Kmart to properly designate and prepare a corporate witness. Id.
Mr. Murphy maintains that he is entitled to information from corporate entities other than Kmart and that such information is relevant “to know the past history of these various entities, that apparently merged to form a single relationship, and Kmart’s relationship and role in this corporate hierarchy.” See Docket 116. Mr. Murphy maintains that the request is not burdensome as a corporate designee should have a “working understanding” of this subject. Id. He argues that Kmart is required to provide a corporate designee despite the fact that the information may be available through other means. Id. Mr. Murphy also argues that he described this line of inquiry with “reasonable particularity” in accordance with Rulе 30(b)(6) and is not required to meet the heightened standard of “painstaking particularity” demanded by Kmart. Id. Rather, Kmart should interpret Mr. Murphy’s subject of examination in light of and consistent with the underlying claims of this lawsuit. Id.
The court agrees with Mr. Murphy that he should not be held to a more rigorous standard than that contemplated by Rule 30(b)(6). The plain language of the Rule clearly states that the party requesting the deposition must describe with “reasonable specificity” the topics to be discussed. See Rule 30(b)(6). In support of its position on this issue, Kmart cites to Union Pacific R.R. Co. v. Mike’s Train House, Inc., 2006 U.S. Dist. Lexis 56349 at *18 (D.Neb. Aug. 10, 2006),
That being said, the court does not believe that Mr. Murphy has satisfied the “reasonable specificity” standard of Rule 30(b)(6). Mr. Murphy seeks information regarding (1) the corporate history of four corporate entities, (2) the corporate relationship between these entities, and (3) the bankruptcy of 2001. The court agrees with Kmart that this request covers a tremendous amount of information that may be completely irrelevant to Mr. Murphy’s claims. Mr. Murphy argues that Kmart should interpret this request in accordance and consistent with his underlying claims. However, the burden is on Mr. Murphy, as the party requesting the deposition, to satisfy the “reasonable particularity” standard of Rule 30(b)(6). See Rule 30(b)(6). Without further clarification, Kmart could not reasonably designate and properly prepare a corporate representative to testify on its behalf with respect to this broad line of inquiry. Considering that Kmart could face sanctions for failing to adequately produce and prepare its deponents, it hardly seems fair to expect Kmart to “interpret” this line of inquiry to the extent that Mr. Murphy demands. See Fed.R.Civ.P. 37 (authorizing the use of sanctions for a party’s failure to make disclosures or cooperate in discovery). Further, sufficient discovery has been produced in this case to allow Mr. Murphy to narrow the focus of this inquiry to relevant subjects. Thus, the court will require Mr. Murphy to file a second amended Rule 30(b)(6) notice that reasonably narrows or clarifies this line of inquiry.
The court disagrees with Kmart’s assertion that this line of inquiry is unduly burdensome because the information is available elsewhere. A Rule 30(b)(6) deposition serves a unique function — it is the “sworn corporate admission that is binding on the corporation.” See In re Vitamins Antitrust Litigation,
Discovery by means of a Rule 30(b)(6) deposition differs from discovery obtained through other means, e.g. interrogatories and requests for production. See id. at 174 (noting the differences between discovery obtained by document submissions and discovery obtained by a Rule 30(b)(6) deposition). A Rule 30(b)(6) deposition allows the requesting party to obtain “‘more complete information and is, therefore favored.’ ” Great American Ins. Co. of New York v. Vegas Const. Co., Inc.,
Kmart has objected to almost every subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) notice on the ground that such information is duplicative and unduly burdensome as it has already been produced in other forms or is available elsewhere. If the court were to adopt Kmart’s position, then few Rule 30(b)(6) depositions would ever take place. The court recognizes that the burden on Kmart to prepare a knowledgeable Rule 30(b)(6) deponent “may be onerous,” but the court “is not aware of any less onerous means of assuring that the position of a corporation ... can be fully and fairly explored.” See Prokosch,
Kmart’s argument that Mr. Murphy is not entitled to information from any other corporate entity is a more difficult issue to address as there is little case law on this subject. The Illinois court in S.C. Johnson & Son, Inc. v. Dial Corp.,
The S.C. Johnson & Son, Inc. court stated that it had identified only two cases that dealt with this issue. The first, Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc.,
In light of this split of authority, the court turned for guidance to the 1970 advisory committee notes for Rule 30(b)(6). S.C. Johnson & Son, Inc.,
The court also noted that Sara Lee need not designate one of its own employees to provide testimony regarding its subsidiary, but rather could designate any person or persons most familiar with the designated topics. Id. Thus, Sara Lee would not be forced to acquire all of the knowledge of its subsidiaries. Id. Further, because the Rule 30(b)(6) subpoena focused on one specific patent for Dial’s air-freshening product and the negotiations and contracts related to that product, Sara Lee only had to provide witnesses with knowledge of a limited number of subsidiaries. Id. Accordingly, the court denied Sara Lee’s motion to quash the Rule 30(b)(6) subpoena. Id.
This case is different from S.C. Johnson & Son, Inc., Twentieth Century Fox, and In re Ski Train Fire in that Mr. Murphy’s amended Rule 30(b)(6) notice places the burden on Kmart to designate witnesses to speak about its parent corporation, Sears Holdings Corporation, and sister corporation, Sears, Roebuck and Company, both non-parties to this suit.
In Hunter Douglas, Inc. v. Comfortex Corp.,
Kmart argues that Mr. Murphy is not entitled to inquire into these other entities because they are not parties to the suit. However, the issue is whether Kmart has sufficient control over or access to Sears, Roebuck and Company and Sears Holdings Corporation to be charged with the knowledge of these entities. Kmart has provided no information to assist the court in resolving this issue. Given the court’s independent research, the court suspects that Kmart does have the requisite access. Kmart purchased Sears, Roebuck and Company in 2004. See note 3, supra. This merger created Sears Holdings Corporation, that is, Sears Holdings Corporation did not exist prior to this merger. Id. Sears Holdings Corporation owns and operates only those two entities. Id. Sears Holdings Corporation markets products under brands held by both companies. See http://www.searsholdings.com/ indez.htm. Further, the board of directors for Sears Holdings Corporation is the same as that for Kmart and Sears, Roebuck and Company. Id. Finally, Kmart need not designate one of its own employees tо provide testimony regarding these other entities, but rather could designate any person or persons most familiar with the designated topics. Thus, the court will allow Mr. Murphy to inquire into the relevant history of the four corporate entities identified in this subject of examination, as more narrowly tailored by the amended request the court has directed Mr. Murphy to serve.
2. Second Subject of Examination
The second subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[bjusiness plans that Defendant (all corporations listed in 1., above), developed from 2001 to 2005, regarding retention or termination of salaried employees.” [Docket 66], Kmart objects to this line of inquiry on several grounds. See Docket 91. Kmart argues that “no entity other than Kmart Corporation, which is the sole defendant in this matter, is properly subject to discovery in this case.” Id. Kmart also argues that this inquiry is “temporally, substantively and geographically overbroad.” Id. Kmart maintains that discovery should be limited to retention or termination plans established for District 917
In support of this line of inquiry, Mr. Murphy makes the same arguments that he did in support of his first subject of examination with the addition of the following arguments. See Docket 116. Mr. Murphy argues that he is entitled to discovery covering a reasonable time period before and after the tenure of his employment with Kmart and to discovery for all of Kmart’s districts, particularly the districts comprising the Western Region. Id.
The court does not find that the inquiry is temporally overbroad. Mr. Murphy is entitled to discovery for a reasonable period of time before and after Kmart’s alleged discriminatory conduct. See Sallis v. University of Minn.,
The court agrees with Kmart that Mr. Murphy is not entitled to nationwide discovery as explained in greater detail in the court’s previous order. See Docket 132. Mr.
For the same reasons set forth previоusly in this opinion, the court rejects Kmart’s argument that this line of inquiry should be quashed because it is unreasonably duplica-tive.
The court agrees with Kmart that this inquiry should be limited to the position of Kmart store managers. “It is well established that only similarly situated employees are relevant to a claim of disparate treatment.” See Franklin v. Living Centers-East, Inc.,
Finally, the court will allow Mr. Murphy to seek information from the four corporate entities identified in this inquiry with the following caveat. Kmart was Mr. Murphy’s employer. He is entitled to know how other similarly-situated Kmart store managers were treated. It appears irrelevant to the court how managers of Sears stores may have been treated. However, because of the corporate relationships discussed at footnote 4, supra, corporate entities other than Kmart may have promulgated corporate policies as to performance expectations for Kmart store managers. To that extent, inquiry about corporate entities other than Kmart may be relevant, but the inquiry is limited to corporate policies concerning Kmart store managers.
3. Third Subject of Examination
The third subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[Corporate policies or philosophies of all corporations listed in 1., above, regarding retention or termination of salaried employees who are 40 years of age or older or had been employed by these entities fifteen (15) or more years.” [Docket 66]. Kmart objects to this line of inquiry on many of the same grounds listed above. First, Kmart argues that it has already produced all information relevant to this subject through less burdensome means, namely answering Mr. Murphy’s previous discovery requests. See Docket 91. Kmart also alleges that it has already informed Mr. Murphy that it does not maintain specific policies regarding retention of store managers and, thus, should not have to prepare a witness to testify to matters that do not exist in the form requested. Id. Kmart argues that Mr. Murphy is not entitled to seek information regarding any entity other than Kmart. Id. Finally, Kmart argues that this line of inquiry is imprоper because it seeks irrelevant information — it is unlimited in time and geographic scope and its reference to length of service is “not a proxy for age discrimination.” Id.
In support of this line of inquiry, Mr. Murphy renews his arguments made in support of the other subjects of examination with the following addition. See Docket 116. Mr. Murphy argues that the information learned in response to this line of inquiry could further his claim that Kmart had a plan to eliminate older store managers. Id.
The court also finds that this line of inquiry is not unduly burdensome even if the information has been produced through other means. Further, with respect to Kmart’s contention that the information does not exist in the requested form, Mr. Murphy has the right to explore this issue at the deposition. However, the court does agree that this line of inquiry is impermissibly broad. Accordingly, the сourt orders Mr. Murphy to amend this subject of examination by limiting it: (l)to the Western Region of the United States, (2) to an appropriate time period, and (3) to employees who have been or are employed as store managers.
4. Fourth Subject of Examination
The fourth subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[cjorporate policies or philosophies of all corporations listed in 1., above, regarding retention or termination of salaried employees who were stationed in one position for five (5) years or longer with the Defendant.” [Docket 66]. Kmart raises the same objections to this line of inquiry as it did to the third subject of examination above. See Docket 91.
In support of this line of inquiry, Mr. Murphy makes the same arguments that he did with respect to the third subject of examination. See Docket 116.
Accordingly, for the reasons set forth previously in this opinion, the court orders Mr. Murphy to amend this subject of examination in the same manner as the third subject of examination.
5. Fifth Subject of Examination
The fifth subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[corporate policies or philosophies of all corporations listed in 1., above, regarding termination or resignation of store managers for Western Region/Western District/Western United States from 2003 to the present.” [Docket 66]. Kmart’s objections to this line of inquiry are as follows: (1) it is geographically overbroad in that it should be limited to Kmart’s District 917; (2) it improperly seeks information from parties other than Kmart; and (3) it is cumulative and unduly burdensome as it seeks information previously produced by Kmart. See Docket 91.
In addition to the arguments already stated, Mr. Murphy maintains that this line of inquiry is relevant because of the following: (1) the information learned may support his claim that Kmart had a plan to eliminate older store managers; (2) there is evidence that Kmart “would try to get rid of managers who had been in the same store for a long time”; and (3) there is evidence that Kmart used its “developmental plan of action ... to try to force people out.” See Docket 116.
For the same reasons set forth previously in this opinion, the court will allow Mr. Murphy to seek information from the four corporate entities identified in this inquiry, to the extent they have information about Kmart store managers. For the reasons set forth previously in this opinion, the court rejects Kmart’s remaining objections. Mr. Murphy shall modify this subject area of his deposition notice to limit the area of inquiry to Kmart store managers.
6. Sixth Subject of Examination
The sixth subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[a]ny and all cost containing measures proposed pertaining to employees of the store manager-level or higher from 2001 to 2006.” [Docket 66] (emphasis added). Kmart raises the following objections: (1) the language “cost containing
The court notes that the phrase “cost containing measures,” without further clarification, would cover an extremely broad amount of information which may or may not be relevant to Mr. Murphy’s claims. Mr. Murphy states that he is inquiring into cost containing measures pertaining to employees. The court interprets this request to refer to measures designed to streamline labor costs, thereby distinguishable from, for example, measures designed to streamline merchandising costs or advertising costs. However, this is simply the court’s interpretation. Ultimately, Mr. Murphy bears the burden of describing this line of inquiry with “reasonable specificity,” and the court finds that he has not met his burden here. Thus, the court orders Mr. Murphy to clarify what he means by “cost containing measures pertaining to employees” and to clarify which categories of “cost containing measures” are relevant to his claims. Mr. Murphy shall amend this subject of examination accordingly. Mr. Murphy shall also narrow this subject of examination to the Western Region of the United States and to the Kmart store manager position as consistent with the other subjects of examination. For the same reasons set forth previously in this opinion, the court rejects Kmart’s argument that this line of inquiry is temporally overbroad.
7. Seventh Subject of Examination
The seventh subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[a]ny and all cost containing measure implemented pertaining to employees of the store manager-level and above from 2001 to 2006.” [Docket 66] (emphasis added). Kmart objects on the same grounds listed with respect to subject of examination number seven. See Docket 91. In response, Mr. Murphy raises the same arguments made with respect to the other lines of inquiry. See Docket 116. Accordingly, the court orders Mr. Murphy to amend this subject of examination in the same manner as the sixth subject of examination.
8. Eighth Subject of Examination
The eighth subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[defendant's policies and standards issued or promulgated by corporate (all corporations listed in 1., above), expected by store managers from 2001 to the present.” [Docket 66]. Kmart objects to this line of inquiry on several grounds. See Docket 91. First, Kmart argues that this inquiry is overbroad as it seeks irrelevant information from corporate entities other than Kmart. Id. Kmart also argues that this inquiry is not defined with “reasonable particularity” with respect to which policies and standards Mr. Murphy is referring to. Id. Kmart maintains that the majority of Kmart’s corporate policies bear no relation to Mr. Murphy’s claims. Id. Kmart also argues that this inquiry is temporally overbroad and should be limited to January 1, 2003, to the present. Id. Finally, Kmart argues that this inquiry is cumulative and unduly burdensome because Kmart has already produced those policies applicable to the store manager position and because Mr. Murphy has already deposed Jerry Rudrude. Id.
In response, Mr. Murphy raises the same arguments made with respect to other lines of inquiry. See Docket 116. Additionally, Mr. Murphy argues that “he should be allowed to discover from Kmart’s designee what was expected from Kmаrt’s store managers” in order to determine “whether it was warranted to place [Mr. Murphy] on a development plan of action, which eventually led to his constructive discharge.” Id.
For the reasons set forth previously in this opinion, the court rejects Kmart’s argument that this line of inquiry is temporally over-broad and unduly burdensome or cumulative.
The court also rejects Kmart’s argument that this fine of inquiry should be limited to just Kmart, because corporate entities other than Kmart may have promulgated corporate
However, the court does agree with Kmart that Mr. Murphy’s eighth subject of examination is not defined with reasonable particularity. Mr. Murphy seeks all policies and standards expected for Kmart store managers from four corporate entities. This inquiry is extremely vague and covers information not relevant to Mr. Murphy’s claims, such as corporate policies on a Kmart store manager’s discretion to hire and fire subordinates or to enter into contracts with third parties for the maintenance of parking lots, both issues that do not appear relevant to the claims and defenses in this lawsuit. Thus, the court orders Mr. Murphy to amend this subject of examination by specifying which categories or types of corporate policy beаring on Kmart store managers that he wishes to inquire into.
9. Ninth Subject of Examination
The ninth subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[established goals for individual store’s gross or net profits from 2000 to present. This includes goals established for individual District Managers and individual store managers.” [Docket 66]. Kmart objections to this line of inquiry are as follows: (1) it is geographically overbroad and should be limited to Kmart’s District 917; (2) it is temporally overbroad and should be limited to January 1, 2003, to the present; (3) it is overbroad in that it seeks information about job positions never held by Mr. Murphy; and (4) it is cumulative as Kmart has already produced net profit reports for stores in District 917 from 2003-2005. See Docket 91.
In response, Mr. Murphy raises the same arguments made with respect to other lines of inquiry. See Docket 116. Additionally, Mr. Murphy argues that this line of inquiry is relevant to show that Kmart may have “set[ ] him up to fail” by holding him to more rigorous profit goals than those expected from other stores. Id. Mr. Murphy maintains that this information also may be used to rate Mr. Murphy’s performance as a store manager by comparing the success of Mr. Murphy’s store with other stores. Id.
The court finds that this line of inquiry should be restricted (1) to Kmart’s Western Region and (2) to goals established for individual Kmart store managers (as opposed to Sears store managers) as consistent with the other subjects of examination. Mr. Murphy shall amend this subject accordingly. The court does not find that this request is temporally overbroad. Although many of the other subjects of examination are limited to a more narrow time frame, the court does not find a nine-year time period (2000 to the present) to be unreasonable or unduly burdensome. For the same reasons set forth previously in this opinion, the court also rejects Kmart’s argument that this request is unduly burdensome because much of the information has already been produced.
10. Tenth Subject of Examination
The tenth subject of examination identified in Mr. Murphy’s amended Rule 30(b)(6) deposition notice is “[p]rofit and loss statements for Kmart Corporation, Kmart Holding Corporation, Sears Corporation, and Sears Holding Corporation from 2001 to the present.” [Docket 66]. Kmart objects to this line of inquiry, arguing that (1) Mr. Murphy is not entitled to the corporate information of any entity other than Kmart; (2) a significant amount of financial information regarding Kmart is available to Mr. Murphy through less burdensome means, namely through various internet sites; and (3) profit information is irrelevant to the issue of damages because the Age Discrimination in Employment Act does not award punitive damages, but rather permits liquidated damages based solely on Mr. Murphy’s back pay. See Docket 91.
In response, Mr. Murphy raises the same arguments made with respect to other lines of inquiry. See Docket 116. Additionally, Mr. Murphy claims that this information is necessary to support his punitive damages claims. Id.
Under South Dakota law, punitive damages are prohibited unless expressly authorized by statute. See SDCL § 21-1-4. Punitive damages in tort actions are authorized by South Dakota law. See SDCL § 21-3-2. A necessary element which the plaintiff must prove in order to submit á request for punitive damages to the jury is that the defendant acted with malice, either actual or presumed. See Holmes v. Wegman Oil Co.,
Actual malice is denied as “a positive state of mind, evidenced by the positive desire and intention to injure another, actuated by hatred or ill-will towards that person.” Harter v. Plains Ins. Co.,
South Dakota law also provides that before any discovery related to punitive damages may be had by the plaintiff, the court must hold an evidentiary hearing and may allow such discovery only after concluding that the plaintiff showed by clear and convincing evidence that there is a reasonable basis to believe that there has been willful, wanton, or malicious conduct by the defendant. See SDCL § 21-1-4.1. Therefore, if § 21-1-4.1 applies to Mr. Murphy’s punitive damages claim, he is not entitled to information about Kmart’s profit margins unless Mr. Murphy first proves by clear and convincing evidence that there is a reasonable basis to believe that Kmart acted maliciously.
Substantive questions of law as to Mr. Murphy’s state common law claim of intentional infliction of emotional distress are governed by South Dakota law. See Erie R.R. v. Tompkins,
In one of the first cases to interpret § 21-1-4.1, the South Dakota Supreme Court was presented with the question of whether that statute could be applied retroactively. Dahl,
Relying on Dahl, some district courts have taken the position that because § 21-1 — 1.1 is procedural for purposes of analyzing retroactivity, it is also procedural under Erie v. Tompkins and, thus, the statute has no application in federal court where state law supplies the rule of decision. See, e.g. Ammann v. Massey-Ferguson, Ltd.,
The Eighth Circuit addressed the standard for granting punitive damages under South Dakota law in Diesel Machinery, Inc. v. B.R. Lee Industries, Inc.,
Decisions of the Eighth Circuit represent binding precedent on this court. It is unclear whether Diesel Machinery, Inc. requires application of § 21-1 — 4.1 in this discovery dispute. On the one hand, there is a distinction between a party’s right to discovery — which is the issue here-and the issue of when punitive damages may be submitted to a jury — which was the issue in Diesel Machinery, Inc. Also, the Restatement (Second) Conflicts of Laws provides that, consistent with Tomkins, rules concerning whether a party has a right to a jury trial or a court trial, whether the judge has the power to comment on the evidence, and other rules as to how a trial is conducted are generally considered procedural. See Restatement (2d) Conflicts of Laws § 122 (2008). Thus, under Tomkins as well as Dahl, the rule in § 21-1 — 4.1 which concerns the manner in which discovery is conducted should be considered “procedural” and thus have no application in federal court.
Still, the language used by the Eighth Circuit in Diesel Machinery, Inc. is unavoidable: it comes directly from the statute. If the Eighth Circuit intended that the statute have no application whatsoever in federal court, why recite the standard set forth in the statute?
One thing courts can agree upon, whether they conclude that § 21-1 — 4.1 is applicable in federal court or not, the enactment of § 21-1 — 4.1 by the South Dakota legislature certainly represents a legislative policy of pro
In this case, Mr. Murphy'seeks discovery of Kmart’s gross and net profits on the basis that such discovery is relevant to punitive damages. Although there are actions where this type of discovery was allowed without additional showing, those cases tend to be those where the parties have finished discovery and have briefed the court on summary judgment motions. See e.g. O’Daniel v. Na, Civ. 05-5089, Docket No. 173 (D.S.D. Jan. 9, 2009). In O’Daniel, the court granted a motion for discovery of financial information relevant to punitive damages under circumstances where the case had been pending for three and one-half years, trial was less than three months away, the discovery deadline had passed, and summary judgment motions had been fully briefed and decided. In cases like O’Daniel, the parties and the court were fully aware of the evidence in the case before discovery on punitive damages was embarked upon and the court had the bеnefit of not only the complaint and answer, but also various affidavits, exhibits, and deposition testimony in determining whether punitive damages discovery was warranted.
By contrast, this case has been pending for only slightly more than a year. In addition, although numerous discovery motions have been filed, these do not depend upon the presentation of evidence for their determination. Rather, arguments of a legal nature were asserted. The facts adduced by the parties in the discovery motions do not enlighten the court as to the specific facts asserted in support of Mr. Murphy’s state law claim. In addition, the court notes that the discovery deadline has not yet passed and no trial date has been set. This case is not procedurally in the mature state that the court found the O’Daniel case when it allowed discovery of financial information for purposes of punitive damages.
In addition, Mr. Murphy will have to prove the following elements in order to prevail on his claim of intentional infliction of emotional distress:
1. Kmart engaged in extreme and outrageous conduct;
2. Kmart intended to or recklessly caused Mr. Murphy severe emotional distress;
3. Kmart’s conduct did in fact cause the plaintiff severe emotional distress; and
4. Mr. Murphy suffered an extreme disabling emotional response to Kmart’s conduct.
See Anderson v. First Century Fed. Credit Union,
The South Dakota Supreme Court has cited the Restatement (2d) Torts, § 46 cmt. h (1965), approvingly for the proposition that, “[i]t is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery ...” Richardson,
The Eighth Circuit certainly seems to suggest in Diesel Machinery, Inc. that SDCL § 21-1-4.1 has some application in federal court actions in which South Dakota law supplies the rule of decision. If so, this court presumes that the prima facie showing of malice could be done through a hearing, through pleadings, or through the liability evidence presented at trial. Thus, a separate “mini-trial” on punitive damages would not be necessary in every case. However, even if this сourt’s reading of Diesel Machinery, Inc. is not correct and § 21-1-4.1 has no application in a federal diversity action, the court finds that discovery of punitive damages information at this juncture of this case is premature. The court has authority to limit discovery on its own motion. See Fed. R.Civ.P. 26(b)(2)(C). This court will exercise this authority at the present time and grant Kmart’s motion for protection from this discovery at the present juncture. When this case is “fully flowered” as the ODaniel case was, and the parties and the court are more informed as to the facts in support of Mr. Murphy’s intentional infliction of emotional distress claim, the parties are free to revisit this issue and present arguments anew as to discovery of punitive damages information.
As to any future discovery motions along these lines, the court notes that one of the purposes of punitive damages is to deter the wrong-doer from committing similar misdeeds in the future. Grynberg,
E. Kmart’s Request for Sanctions
If the court grants a motion for a protective order, the court must “require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to рay the movant’s reasonable expenses incurred in making the motion, including the attorney’s fees.” See Fed.R.Civ.P. 37(a)(5)(A). However, the court must not make such an award if the “opposing party’s nondisclosure, response, or objection was substantially justified.” See Fed.R.Civ.P. 37(a)(5)(A)(ii). The court finds that many of Mr. Murphy’s objections Kmart’s motion for a protective order were substantially justified, as reflected in the court’s opinion. Accordingly, the court declines to award Kmart with its reasonable attorney’s fees and costs incurred in filing the instant motion.
CONCLUSION
Based on the foregoing, the court hereby
ORDERS that Kmart’s motion to for a protective order and motion to quash [Docket 90] is granted in part and denied in part in accordance with the above opinion. The Amended Rule 30(b)(6) Notice of Deposition dated October 15, 2008, is quashed. Plaintiff may serve Kmart with another notice of deposition pursuant to Fed.R.Civ.P. 30(b)(6) modified in accordance with this opinion and Kmart shall respond to that notice accordingly.
NOTICE TO PARTIES
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration of this order before the district court upon a showing that the order is clearly erroneous or contrary to law. The parties have ten (10) days after service of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. See Fed.R.Civ.P. 72(a). Failure to file timely objections will result in the waiver of the right to appeal matters not raised in the objections. Id. Objections must be timely and specific in order to require review by the district court.
Notes
. This case is not available in the Westlaw research database.
. In Twentieth Century Fox, plaintiff was the licensee of copyrighted characters, known as "X-MEN," created by defendant Marvel Enterprises, Inc. See Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc.,
Plaintiff then served a Rule 30(b)(6) deposition notice on Tribune Broadcasting. Id. During the deposition, the deponent denied knowledge of the document. Id. Plaintiff served a Rule 30(b)(6) subpoena on WGN-TV, and the deponent produced on behalf of WGN-TV also denied knowledge of the document. Id. at *l-*2. Plaintiff sought to depose WGN Superstation, but could not do so without further order from the court as plaintiff had reached its limit for depositions. Id. at t2. Thus, the court faced the issue of whether "an entity receiving a notice of deposition pursuant to Rule 30(b)(6) is obligated to produce a witness prepared with the knowledge of both the entity that received the subpoena and its subsidiaries or affiliates.” Id.
The court determined that "the scope оf the entity's obligation in responding to a 30(b)(6) notice is identical to its scope in responding to interrogatories served pursuant to Rule 33 or a document request served pursuant to Rule 34, namely, it must produce a witness prepared to testify with the knowledge of the subsidiaries and*508 affiliates if the subsidiaries and affiliates are within its control." Id. The court concluded that, because Tribune Broadcasting owned and operated WGN Superstation, it had sufficient control to be charged with WGN Superstation’s knowledge for purposes of discovery. Id. at *5.
. The court in In re Ski Train Fire declined to follow the holding in Twentieth Century Fox because of distinguishable facts. See In re Ski Train Fire of November 11, 2000, Kaprun, Austria,
. Neither Kmart nor Mr. Murphy clearly defines the relationship between Kmart Corporation, Kmart Holdings Corporation, Sears Corporation, and Sears Holdings Corporation. The court’s independent research reveals that on January 22, 2002, Kmart Corporation filed for Chapter 11 bankruptcy, officially emerging from bankruptcy as Kmart Holdings Corporation and, on June 10, 2003, started to trade on the NASDAQ National Marks as "KMRT.” See http://en.wikipedia.org/ wiki/Kmart. On November 17, 2004, Kmart announced its intention to purchase Sears, Roebuck and Company, and, as part of the merger, Kmart Holdings Corporation changed its name to Sears Holdings Corporation. Id. “The merger of Kmart and Sears as Sears Holdings Corporation closed on March 24, 2005, following affirmative shareholder votes of both companies.” See http://www.searsholdings.eom/about/.Sears Holdings Corporation is the publicly-traded parent of Kmart and Sears, Roebuck and Company. Id. In essence, the merger of Kmart and Sears,
. Kmart actually referenced District 914. There is some confusion about whether Mr. Murphy worked within Kmart’s District 917 or District 914. Mr. Murphy refers to District 917 in other pleadings, see e.g., Docket 59, but refers to District 914 in his response to Kmart’s motion for a