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Nichols v. American Cyanamid Co.

January 12, 2006

RON NICHOLS, ET AL. PLAINTIFFS
v.
AMERICAN CYANAMID COMPANY, ET AL. DEFENDANTS



ORDER

Plaintiffs have brought this action alleging that their cotton crops were damaged after they applied Prowl(r) 3.3 EC herbicide ("Prowl"), an herbicide manufactured by defendants, to their cotton fields. Pending before the Court are a number of motions pertaining to discovery.

Motion to Quash Plaintiffs' Subpoenas to Kim Mayberry and Union Planters Bank and Defendants' Motion for Protective Order Mayberry is a sales representative for defendants. Plaintiffs have subpoenaed Mayberry to appear for a deposition on January 13, 2006, and to produce her bank statements and records for the period March 1, 2000 to August 30, 2000.

Plaintiffs already deposed Mayberry on September 7 and 8, 2004. Federal Rule of Civil Procedure 30(a)(2), requires that plaintiffs obtain leave of Court to depose Mayberry a second time. Plaintiffs have filed a motion for leave to take supplemental depositions (see discussion infra ).

Mayberry asserts that the subpoena is an invasion of her privacy and that compliance would violate her right to privacy with regard to her personal financial information. She further asserts that the subpoena seeks irrelevant information. Mayberry contends that there is no evidence that plaintiff ever purchased Prowl from Mayberry.

Mayberry also challenges the subpoena issued to Union Planters Bank seeking Mayberry's bank account records from March 1, 2000 to August 30, 2000, for the reasons stated above as well as that compliance with the subpoena could violate the Gramm Leach Bliley Act. See 15 U.S.C. § 6801(a)

Defendants' request a protective order prohibiting plaintiffs from seeking to discover Mayberry's private financial information.

As stated above, plaintiffs have filed a motion for leave to take supplemental depositions. As discussed infra , the Court is persuaded that plaintiffs have established good cause for the Court to grant them leave to take supplemental depositions of Aycock and Mayberry. The Court further finds that Mayberry's motion to quash and defendants' motion for protective order should be denied. Plaintiffs have demonstrated what they contend is inconsistent testimony, and have established a basis to further investigate the source of the Prowl that was supplied Nichols. There is no question that the information sought is relevant. The Court is not persuaded that Mayberry would be unduly burdened by compliance with the subpoena to appear for a deposition. The Court, however, is concerned with the privacy rights of Mayberry in her personal financial records, particularly as Mayberry is not a party to this action. Therefore, any confidential information, such as account and social security numbers, should be redacted from the documents.

Thus, the motion to quash and motion for protective order are denied.

Defendants' Motion for Sanctions:

Defendants state that Plaintiffs have failed to provide complete responses to defendants' discovery requests despite two Court orders and numerous letters from defendants' counsel to Plaintiffs' counsel. In particular, defendants state that plaintiff Freeda Parrent has not produced any income tax records and that plaintiff Ron Nichols has not produced income tax records for the years 2000 and 2001. Additionally, defendants state that plaintiffs' counsel has refused to schedule depositions for plaintiffs Cletis Nichols, Rosemary Nichols, Vance Lee, Freeda Parrent and a representative for Circle N Farms as well as depositions of key witnesses identified by plaintiffs.

Defendants request the imposition of sanctions, including the awarding of fees, costs and expenses associated with their discovery motions and the extension of certain deadlines for defendants only.

Plaintiffs respond that the failure to produce the tax returns is the result of oversight on the part of Plaintiffs' counsel. Plaintiffs refute defendants' assertions that they provided Nichols a written authorization for the release of his 2000 and 2001 tax returns and that Plaintiffs' counsel have not cooperated in scheduling depositions.

It appears that action has now been taken to provide the requested tax returns. The Court cannot find that defendants are unduly prejudiced by the delay in so producing the information, as defendants were already in possession of numerous financial records regarding Nichols. Additionally, the Court cannot find that plaintiffs refused to schedule depositions or stymied the discovery process.

Plaintiffs' behavior has not been so egregious as to warrant the imposition of sanctions. Thus, the ...


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