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Townsend v. Autozone Stores, LLC

United States District Court, W.D. Arkansas, Texarkana Division

June 27, 2017



          Susan O. Hickey United States District Judge

         Before the Court is a Motion for Protective Order filed by Defendant AutoZone Stores, LLC (“AutoZone Stores”). ECF No. 53. Plaintiff Joseph Townsend (“Townsend”) has filed a response in opposition to the motion. ECF No. 57. In addition, Townsend has filed a Verified Motion to Stay, to Compel Deposition and for Sanctions. ECF No. 55. AutoZone Stores has filed a reply. ECF No. 60. The Court finds this matter ripe for its consideration.

         I. BACKGROUND

         This is an action involving alleged violations of the Arkansas Civil Rights Act, 42 U.S.C. § 1981, and the Arkansas Minimum Wage Act. For the purpose of this Order, the Court will only provide the facts and procedural background relevant to the instant motion.

         On May 8, 2017, Townsend served AutoZone Stores with a Notice of Deposition pursuant to Federal Rule of Civil Procedure 30(b)(6). Def.'s Ex. 1. The notice requests that AutoZone Stores[1] designate a representative to provide testimony regarding twenty-nine issues contained within the notice. In addition, the notice requests that AutoZone Stores produce any documents it used to prepare the witness for the deposition. Most of the topics noticed for deposition relate to Townsend's employment and include the following subjects: Townsend's complaints of racial discrimination and retaliation; the decision to terminate his employment; AutoZone Stores' anti-discrimination and retaliation policies and investigations; the results of any investigations of Townsend during his employment; and the persons who participated in the decision to hire Townsend's replacement. Def.'s Ex. 1.

         The notice further indicates that the deposition would take place on May 18, 2017. In the email that accompanied the notice, Townsend's counsel provided, in relevant part, as follows: “If the date, time or location, is inconvenient let me know, but I would like to get the notice before the Court ASAP.” Def.'s Ex. 2. AutoZone Stores contacted Townsend's counsel on the same date and informed him that they were unavailable on May 18.

         On May 9, 2017, AutoZone Stores contacted Townsend's counsel via email to state its objections to the deposition notice. Def.'s Ex. 2. In the email, AutoZone Stores contended that it lacked information that was responsive to the Rule 30(b)(6) notice on the basis that it was not Townsend's employer. In support of this contention, AutoZone Stores noted that the Notice of Deposition was directed to AutoZone Stores, Inc., the predecessor of AutoZone Stores, LLC. In addition, AutoZone Stores argued that the noticed topics concerned Townsend's employment and termination, and that it “does not have any employees, has never had any employees, and has never employed . . . Townsend or the regional managers involved in the recommendation and decision to terminate his employment.” AutoZone Stores specifically contended that AutoZoners, LLC (“AutoZoners”) is its sister company, and that AutoZoners employs retail store employees for AutoZone stores in Arkansas. AutoZone Stores further asserted that it maintained no control over AutoZoners. At the conclusion of the email, AutoZone Stores asked whether Townsend's counsel would consider withdrawing the 30(b)(6) notice and, if not, whether the deposition could be rescheduled or postponed until the Court issued a ruling on a motion for a protective order.

         In response, Townsend's counsel asked whether AutoZone Stores was stating that the information sought to be covered in the deposition was not under AutoZone Stores' control. AutoZone Stores replied that Townsend's counsel misconstrued the standard under Rule 30. During the exchange, AutoZone Stores maintained that it would be unable to produce a deponent to testify on its behalf because the information was not known or reasonably available to AutoZone Stores. Townsend's counsel then sought clarity as to whether AutoZone Stores had “administrative control” over any of the documents responsive to his request. The parties then exchanged several more emails. At the conclusion of the exchange, Townsend's counsel requested AutoZone Stores' “formal objections” to the notice and stated that he would accommodate AutoZone Stores' request on another date for the deposition. AutoZone Stores responded by stating that it would file a motion for protective order the following week.

         On May 16, 2017, AutoZone Stores filed the instant motion with respect to the Rule 30(b)(6) deposition, as well as a Motion for Partial Summary Judgment. ECF No. 50. In his response to the motion for a protective order, Townsend stated that he noticed a deposition on May 18, 2017, and AutoZone Stores failed to appear. Townsend further asserts that, despite filing a motion for a protective order, AutoZone Stores' failure to appear was unexcused and a “record of non-appearance” was made as a result. Included in Townsend's response is a motion to stay the time to respond to AutoZone Stores' Motion for Partial Summary Judgment. In the alternative, Townsend requests that the Court extend the deadline to file a response to AutoZone Stores' summary judgment motion by 30 days. Townsend further moves the Court to extend the discovery deadline or stay the Court's scheduling order; compel AutoZone Stores to appear at a deposition; and impose sanctions for failure to appear at the prior deposition pursuant to Rule 37. The Court will consider each of the parties' motions in turn.


         A. AutoZone Stores' Motion for Protective Order

         The Court will first address AutoZone Stores' motion for a protective order to prohibit Townsend from deposing a witness about any of the twenty-nine topics set forth in the Rule 30(b)(6) Notice of Deposition.[2] Rule 26(c) of the Federal Rules of Civil Procedure governs the issuance of protective orders. Rule 26 provides, in relevant part, as follows:

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.

Fed. R. Civ. P. 26(c)(1). The party seeking a protective order “bears the burden of making the ‘good cause' showing that the information being sought falls within the scope of Rule 26(c), and that he will be harmed by its disclosure.” Reese v. Reyes, No. CIV.A. 07-5227, 2008 WL 2186330, at *1 (W.D. Ark. May 23, 2008) (citing Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 954 n. 5 (8th Cir. 1979)). Upon a showing of good cause, the Court may protect the moving party from annoyance, embarrassment, oppression, or undue burden or expense by issuing ...

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