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Bennett v. Nucor Corp.

June 27, 2006

CORNELIUS BENNETT, ET AL. PLAINTIFFS
v.
NUCOR CORPORATION, ET AL. DEFENDANTS



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

Six plaintiffs bring this employment discrimination case, a putative class action, against Nucor Corporation, Nucor-Yamato Steel Company, and Nucor Steel-Arkansas ("Nucor"). Plaintiffs are current and former employees of Nucor's Blytheville, Arkansas plant who claim that Nucor discriminated against them because they are black. Specifically, Plaintiffs claim that Nucor prevented them from competing for promotions by way of discriminatory selection, training, and discipline practices and subjected them to a racially hostile work environment.

Several pending motions concerning discovery are ready for decision. Before the Court are (1) Nucor's motion for a protective order (docket entry #95), Plaintiffs' response (docket entry #106), and Nucor's reply (docket entry #111); (2) Plaintiffs' motion to compel (docket entry #104) and Nucor's response (docket entry #112); (3) a motion to quash filed by non-party Dawson Employment Service, Inc., ("Dawson") (docket entry #101), Plaintiff's response (docket entry #109), and Dawson's reply (docket entry #116); and (4) a motion to quash filed by non-party Lexicon, Inc. ("Lexicon") (docket entry #102), Plaintiffs' response (docket entry #110), Lexicon's reply (docket entry #115), and Plaintiff's response (docket entry #118). After careful consideration, and for the reasons that follow, Nucor's motion for a protective order and Plaintiffs' motion to compel will be granted in part and denied in part and the motions to quash by Dawson and Lexicon will be granted.

I.

In support of its motion for a protective order, Nucor states that three weeks before the expiration of the May 19, 2006 discovery cut-off date in this case, Plaintiffs served a "barrage of discovery requests calculated to harass and delay this case further." Docket entry #96, at 1. The discovery requests at issue include deposition notices for 56 Nucor employees; a request for personnel records for the period from 1988 through 1999; and a request to inspect and photograph Nucor's Batesville facilities.

Depositions

Supervisors and Employees Correspondence between the parties' attorneys shows that on April 20, 2006, Plaintiffs informed Nucor, by email, that they planned to depose eight Blytheville plant supervisors the week of May 2, 2006, in Blytheville. See docket entry #95, Ex. 6. In response, Nucor informed Plaintiffs that three of the eight supervisors were available for depositions the week of May 2, and Nucor reminded Plaintiffs that time was limited as the parties had already scheduled four depositions for the week of May 2. See docket entry #95, Ex. 7. Additionally, Nucor informed Plaintiffs that two of the proposed deponents no longer worked for Nucor. See id. Despite Nucor's concern about time limitations, Plaintiffs replied that they wanted to schedule the remaining three depositions for May 4 through 5. See id., Ex. 8.

Nucor responded that depositions were scheduled for each day of the week of May 2 and that conflicting schedules and pre-planned events made it impossible to schedule additional depositions for that week. Nucor suggested that one of the three unscheduled supervisor depositions take place after May 5, and that Plaintiffs conduct the two remaining depositions upon written questions. See id., Ex. 9.

On April 26, 2006, Plaintiffs sent Nucor deposition notices for 50 witnesses, and on May 1, 2006, Nucor received notices for six additional depositions. See id., Exs. 3, 14, 15. According to the notices, Plaintiffs intended to conduct 56 depositions back-to-back during the period from May 2, 2006 through May 16, 2006.

Nucor asserts that Plaintiffs failed to give reasonable notice of their desire to take 56 depositions during the final 3 weeks of discovery in this case. "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party in the action." Fed. R. Civ. P. 30(b)(emphasis added). Plaintiffs gave Nucor's attorneys 6 days to clear their schedules for a two-week period and prepare for 56 unexpected depositions. The Court agrees that Plaintiffs failed to give Nucor reasonable notice as required under Rule 30(b) with respect to a portion of the proposed depositions. The Court finds that Plaintiffs gave Nucor reasonable notice, in writing, of its desire to depose eight supervisors listed in Plaintiffs' April 20 email communication. However, Plaintiffs' April 26 surprise notices failed to give Nucor reasonable notice of depositions for additional Nucor employees. Nucor's motion for a protective order will be granted with respect to these notices.

CEO, Dan DiMicco

On April 21, 2006, Plaintiffs served Nucor with a notice for the deposition of Dan DiMicco, Nucor's CEO, to take place on May 11, 2006 in Charlotte, North Carolina. See id., Ex. 3. Nucor asserts that Plaintiffs' notice is deficient because it came 30 days before the discovery deadline. The Court disagrees and finds that Plaintiffs' notice was timely.

Nucor also asserts that Plaintiffs seek to depose DiMicco purely for the purpose of harassment and that he has no unique or superior knowledge of the claims and issues relevant to this lawsuit. Plaintiffs state that DiMicco served as the plant manager of the Blytheville plant, he was directly involved in events at issue in this lawsuit, and he has personal knowledge of matters that are relevant to the claims and defenses in this case.

Plaintiffs' notice of deposition states that it is in accordance with Federal Rules of Civil Procedure 30(b)(5) and 30(b)(6). Rule 30(b)(6) provides that a party seeking to take the deposition of a corporation may name the corporation as a deponent in a notice of deposition and provide a description of the matters on which an examination is requested. When the deposition of a corporation is noticed in this manner, the corporation has the obligation to select an officer, director, or managing agent to testify on behalf of the corporation. To the extent that Plaintiffs noticed DiMicco for deposition as a corporate representative, they lack the ability to select the deponent who will speak for the Nucor.

However, to the extent that Plaintiffs noticed DiMicco's deposition under Rule 30(b)(1), which allows the deposition of "any person" with information relevant to a claim or defense, Nucor must produce DiMicco for deposition. DiMicco's position as CEO does not exempt him from testifying as to his personal knowledge regarding facts relevant to Plaintiffs' claims.

Request for Production of Documents

On April 14, 2006, 35 days before expiration of the discovery deadline, Plaintiffs served Nucor a third set of interrogatories and requests for ...


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