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Innes v. The Board of Regents of The University System of Maryland

United States District Court, D. Maryland

May 29, 2014

JOSEPH INNES, et al.,
v.
THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF MARYLAND, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this disability discrimination case is a motion for a protective order filed by Defendant Wallace D. Loh. (ECF No. 45). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for a protective order filed by Defendant Wallace D. Loh will be granted.

A. Background

Plaintiffs Dr. Joseph Innes ("Dr. Innes"), Daniel Rinas ("Mr. Rinas") and Sean Markel ("Mr. Markel"), who are deaf, sued the University of Maryland, the Board of Regents, and Wallace D. Loh ("President Loh"), in his official capacity as the President of the University of Maryland, for alleged violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, and the Rehabilitation Act, 29 U.S.C. § 504. (ECF No. 33, at 8-10). Plaintiffs regularly attend sporting events at the Comcast Center and Byrd Stadium, located on the University of Maryland's main campus in College Park, and attempt to watch videos on the University's athletic website. Plaintiffs allege that Defendants failed to provide effective communication for deaf fans both at the games at Byrd Stadium and the Comcast Center and on the University's athletic website.

On April 28, 2014, President Loh filed a motion for a protective order under Fed.R.Civ.P. 26(c), seeking to bar the taking of his deposition. (ECF No. 45). President Loh was scheduled to be deposed on May 7, 2014. ( See ECF No. 45-1). The parties jointly moved to stay President Loh's deposition pending the resolution of the instant motion, which the undersigned granted. (ECF Nos. 47 & 48). Plaintiffs opposed President Loh's motion on May 7, 2014 (ECF No. 53), and Defendant replied on May 19, 2014 (ECF No. 55).

II. Analysis

Although he may be dismissed as a party to this lawsuit, Plaintiffs indicate in their opposition to the motion that "[President] Loh is an appropriate witness for deposition, whether or not he remains as a party defendant." (ECF No. 53, at 4).

On January 29, 2014, Plaintiffs noted three depositions: (1) the Fed.R.Civ.P. 30(b)(6) deposition of the University of Maryland; (2) the Fed.R.Civ.P. 30(b)(6) deposition of the Maryland Stadium Authority, which oversaw the construction of the Comcast Center and the renovation of Byrd Stadium; and (3) the deposition of President Loh. (ECF No. 45-3, at 2). The University of Maryland produced three different witnesses for deposition: Kevin Anderson, the University Athletic Director; Gabriel Unterman, the University Director of Multimedia Production; and Joshua Kaplan, the University Assistant Athletic Director of Facilities and Events. President Loh argues that requiring his deposition would be fruitless because, unlike the University of Maryland's three 30(b)(6) deponents, he has no knowledge of the subjects related to Plaintiffs' second amended complaint and even if he did, his testimony would be duplicative of information that the other deponents have already provided.

Fed.R.Civ.P. 26(c) states, in pertinent part, that the court "may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" The general standard for discovery under Fed.R.Civ.P. 26 is relatively broad:

Rule 26 governs discovery entitlement and provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any part...." Fed.R.Civ.P. 26(b)(1). While the Federal Rules of Civil Procedure do not define relevance, the Federal Rules of Evidence do, as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Or, as rephrased in the commentary, "[d]oes the item of evidence tend to prove the matter sought to be proved?"

United Oil Co., Inc. v. Parts Assoc., Inc., 227 F.R.D. 404, 409 (D.Md. 2005) (footnote omitted). The Fourth Circuit has explained that discovery requests may be limited in appropriate cases:

On its own initiative or in response to a motion for protective order under Rule 26(c), a district court may limit "the frequency or extent of use of the discovery methods otherwise permitted" under the Federal Rules of Civil Procedure if it concludes that "(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2). Further, upon motion of a party and "for good cause shown, " the court in the district in which a deposition is to be taken may "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, " including an order that the discovery not be had. Fed.R.Civ.P. 26(c).

Nicholas v. Wyndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 2004). "District courts have broad discretion in [their] resolution of discovery problems." Mylan Labs, Inc. v. Akzo, N.V., 2 F.3d 56, 62 (4th Cir. 1993).

Plaintiffs argue that deposing President Loh would yield relevant information related to this action. First, Plaintiffs believe that President Loh has personal knowledge of matters relevant to this case. They point to excerpts from Gabriel Unterman's deposition, in which he testified that the Office of the President - Defendant Loh's office - established a committee to deal with making all of the University of Maryland's websites accessible to individuals with disabilities, including the Athletic Department website. (ECF No. 53-1, at 4, dep. of Gabriel Unterman ("I'm a part of an IT accessibility committee, which is a committee that was formed by the president's office to tackle the issue of... website accessibility universitywide."). Mr. Unterman stated that the charge "from the president's office [was] to look and assess our websites university-wide and see what we need to do to get them accessible, ADA compliant." ( Id. at 5). Plaintiffs aver that President Loh "could have important information about why this Committee was formed, who made the decision to form it, and more details about its goals and outcomes." (ECF No. 53, at 3). But as Defendant points out, the Office of the President "houses multiple executives who each have broad discretionary power and authority to act on a day-to-day basis independent of President Loh" and the fact that President Loh's office created this committee does not mean President Loh is knowledgeable about this committee. (ECF No. 55, at 7-8). Plaintiffs have deposed Kevin Anderson, the Director of Athletics at the University of Maryland, who, according to Plaintiffs, testified that he was aware of the accessibility committee, and had conversations with Dr. Loh about accessibility and the Athletic Department. (ECF No. 53, at 3). Mr. Anderson's deposition contradicts this point. Specifically, during the deposition, Mr. Anderson was asked whether he discussed the committee on ...


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