United States District Court, D. Maryland
Jos. A. Bank Clothiers, Inc.
J.A.B.-Columbia, Inc. et al .;
Sincerely, Stephanie A. Gallagher United States Magistrate
October 9, 2015, Plaintiff Jos. A. Bank Clothiers, Inc.
(“Jos. A. Bank”) filed a complaint against three
of its South Carolina franchisees: Defendants
J.A.B.-Columbia, Inc., J.A.B.-Harbison, Inc., and
J.A.B.-Forest Drive, Inc. (“Franchisees”). [ECF
No. 1]. Plaintiff seeks a declaratory judgment regarding a
dispute with Defendants over the right, if any, to renew the
franchise stores under the parties' franchise agreements.
Id. Defendants filed counterclaims for declaratory
judgment, breach of contract, and intentional and/or reckless
misrepresentation. [ECF No. 10]. The case was referred to me
for discovery, specifically Plaintiff's Motion for
Protective Order. [ECF No. 42]. Presently pending is
Plaintiff's Motion for Protective Order and the
opposition and reply thereto. [ECF Nos. 41, 43, 45]. No
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons set forth herein, Plaintiff's
Motion for Protective Order, [ECF No. 41], is GRANTED IN PART
and DENIED IN PART.
December 16, 2015, Judge Hollander submitted a draft
scheduling order providing a discovery deadline of May 20,
2016. [ECF No. 12]. On January 20, 2016, Judge Hollander held
a telephone conference to discuss the discovery schedule.
That day, the parties submitted a joint status report stating
that they would participate in private mediation. [ECF No.
17]. Accordingly, Judge Hollander entered a scheduling order
providing a revised discovery deadline of September 20, 2016.
[ECF No. 18]. On August 1, 2016, Judge Hollander, at the
parties' request, extended the discovery deadline to
November 21, 2016. [ECF No. 31].
October 21, 2016, Defendants served Plaintiff a Rule 30(b)(6)
deposition notice seeking witness testimony on several
topics. [ECF No. 39]. Defendants supplemented their notice on
October 28, 2016. Id. On November 10, 2016, the
parties met and conferred by telephone to discuss
Plaintiff's objections to Defendants' deposition
notice, but were unable to resolve their disputes.
Id. On November 7, 2016, Defendants sought a further
extension of the discovery deadline to February 20, 2017.
[ECF No. 32]. On November 17, 2016, Judge Hollander granted
Defendants' request in part, and modified the discovery
deadline to January 25, 2017. [ECF No. 38]. In her order,
Judge Hollander noted that both parties “[bore] some
responsibility for the fact that discovery is not yet
complete, ” and that “the parties have [not]
genuinely satisfied their affirmative duty to cooperate
regarding discovery.” Id. On November 21,
2016, Plaintiff filed the instant Motion for Protective Order
to strike or limit several 30(b)(6) deposition topics as
“demonstrably irrelevant, ” “oppressive,
” and “not reasonably calculated to lead to the
discovery of admissible evidence.” [ECF No.
41]. Defendants contend that the deposition topics
are relevant and discoverable. [ECF No. 43].
may obtain discovery “regarding any non-privileged
matter that is relevant to any party's claim or
defense.” Fed.R.Civ.P. 26(b)(1). Under Federal Rule of
Civil Procedure 26(b), relevance, rather than admissibility,
governs whether information is discoverable. See
Fed. R. Civ. P. 26(b)(1); Herchenroeder v. Johns Hopkins
Univ. Applied Physics Lab, 171 F.R.D. 179, 181 (D. Md.
1997). Information sought need only “appear [to be]
reasonably calculated to lead to the discovery of admissible
evidence” to pass muster. See Innovative Therapies,
Inc. v. Meents, 302 F.R.D. 364, 377 (D. Md. 2014).
However, even in the case of relevant information, “the
simple fact that requested information is discoverable under
Rule 26(a) does not mean that discovery must be had.”
Nicholas v. Wyndham Int'l, Inc., 373
F.3d 537, 543 (4th Cir. 2004). Instead, Rule 26(b) inserts a
proportionality requirement into the amount and content of
the discovery sought, and requires courts to consider the
“the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access
to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).
Significantly, Rule 26(c)(1) permits courts to, “for
good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1).
protective order is sought, the moving party bears the burden
of establishing good cause. Webb v. Green Tree Servicing,
LLC, 283 F.R.D. 276, 278 (D. Md. 2012). To determine
whether the movant has met his burden, the court must balance
the “interest of a party in obtaining the information
versus the interest of his opponent in keeping the
information confidential or in not requiring its
production.” UAI Tech., Inc. v. Valutech,
Inc., 122 F.R.D. 188, 191 (M.D. N.C. 1988). In other
words, “the Court must weigh the need for the
information versus the harm in producing it.” A
Helping Hand, LLC v. Baltimore Cnty., Md., 295 F.Supp.2d
585, 592 (D. Md. 2003) (internal quotation marks omitted).
Despite the broad discretion conferred on trial courts to
“decide when a protective order is appropriate and what
degree of protection is required, ” see Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), the
standard for issuance of a protective order is high.
Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118,
125 (D. Md. 2009).
seeks to: (1) strike eight deposition topics regarding
Plaintiff's course of dealing and employment of two
former managers, Mr. Bell and Mr. Finley; and (2) limit the
scope of questioning regarding “the concept of
‘evergreen renewals.'” [ECF No. 41].
For the reasons discussed below, Plaintiff's Motion will
be granted in part and denied in part.
preliminary matter, the Court must decide what law to apply.
The Court has diversity jurisdiction over this case pursuant
to 28 U.S.C. § 1332(a)(1). [ECF No. 1]. Thus, the Court
must apply the substantive law of the state in which the
action arose, see Nationwide Mut. Ins. Co. v.
Welker, 792 F.Supp. 433, 437 (D. Md. 1992) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)),
and the choice of law rules of the forum. See Harvard v.
Perdue Farms, Inc., 403 F.Supp.2d 462, 466 (D. Md. 2005)
(citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941)). Under Maryland choice of law rules,
Maryland courts generally enforce choice of law provisions in
contracts. See Cunningham v. Feinberg, 441 Md. 310,
326, 107 A.3d 1194, 1204 (2015) (citing Am. Motorists
Ins. Co. v. ARTRA Grp., Inc., 338 Md. 560, 572, 659 A.2d
1295, 1301 (1995)). Thus, because the Franchise Agreements
expressly provide that they shall be governed by Maryland
law, the Court will apply Maryland law.
background, under Maryland law, the threshold question in a
contract dispute is whether the terms of the contract are
ambiguous. Point's Reach Condominium Council
of Unit Owners v. Point Homeowners Ass'n,
Inc., 213 Md.App. 222, 73 A.3d 1145, 1163 (2013)
(holding that “[w]hen a writing is ambiguous, extrinsic
evidence is admissible to determine the intentions of the
parties to the document.”). Discovery of extrinsic
evidence to aid the interpretation of contract language
“is only admissible after the court finds the contract
to be ambiguous.” Sy-Lene of Washington, Inc. v.
Starwood Urban Retail II, LLC, 376 Md. 157, 162, 829
A.2d 540, 544 (2003). Contract language is ambiguous
“if, to a reasonably prudent person, the language used
is susceptible of more than one meaning and not when one of
the parties disagrees as to the meaning of the subject
language.” Bd. of Educ. of Charles Cnty., 569
A.2d at 1296; see Sierra Club v. Dominion Cove Point LNG,
L.P., 216 Md.App. 322, 86 A.3d 82, 89 (Md. Ct. Spec.
App. 2014) (“[T]he mere fact that the parties disagree
as to the meaning does not necessarily render [a contract]
ambiguous.”). In this case, the parties dispute the
interpretation of the franchise agreements' renewal
provision. Specifically, that provision grants Defendants the
right “to buy a successor franchise for the
Store” if certain outlined terms and conditions are
satisfied. [ECF No. 1] (citing Exs. 1-3, §§ 16.01,
16.03). Plaintiff claims that this contract language is
unambiguous and forecloses Defendants' claim, because it
limits Defendants to a single franchise renewal. [ECF No.
41]. Defendants contend, however, that the contract language
grants them multiple successor franchises, or that,
alternatively, the contract language is ambiguous and
warrants the discovery of extrinsic evidence. [ECF No. 43].
however, the Court need not reach the question of the
agreements' alleged ambiguity here. As noted above,
Rule 26(b)(2) requires a court, upon receipt of a Motion for
Protective Order, to limit discovery to insure that it is
proportional to what is in dispute in the litigation.
Webb v. Green Tree Servicing LLC, No. CIV.
ELH-11-2105, 2012 WL 3139551, at *3 (D. Md. July 27, 2012);
see Fed. R. Civ. P. 26(b)(2)(C). The rule identifies
the following factors to be considered: whether the discovery
sought is unreasonably cumulative or duplicative; whether the
information sought is obtainable from some other more
convenient, less burdensome or inexpensive source; whether
the party seeking the information already has had adequate
opportunity to obtain the information; and whether the burden
or expense of the proposed discovery outweighs its likely
benefit, taking into consideration the following: the needs
of the case, the amount in controversy, the resources of the
parties, the importance of the issues at stake in the
litigation and of the discovery sought to the resolution of
the issues. Thompson v. U.S. Dep't of Hous.
& Urban Dev., 219 F.R.D. 93, 98 (D. Md. 2003);
see Fed. R. ...