Name of Assigned Judge James F. Holderman Sitting Judge if Other or Magistrate Judge than Assigned Judge Young B. Kim
This ruling resolves one of three pending motions to compel [90, 94, 96]. Plaintiff's motion to compel  is granted in part and denied in part. Plaintiff is entitled to depose Christopher Munday and a designee from Golden Gate Capital, L.P. The parties are ordered to schedule these last two fact depositions by no later than May 14, 2012, to be completed by May 31, 2012.
O[For further details see text below.] Notices mailed by Judicial staff.
In its motion to compel, Plaintiff seeks an order to clear the way for it to depose McWayne Mumford, Wayne Tomlinson, Christopher Munday and a designee from Golden Gate Capital, L.P. ("GGC"). As to Munday and the GGC designee, Plaintiff argues that it is entitled to depose them under the agreement the parties reached as to the number of third-party depositions. As to all four individuals, Plaintiff argues that it should be granted leave pursuant to Federal Rule of Civil Procedure 30(a)(2) to depose them. The court has broad discretion over discovery matters, see Spiegla v. Hull, 371 F.3d 928, 944 (7th Cir. 2004), and Federal Rule of Civil Procedure 26(b)(2) states that, "the court must limit the frequency or extent of discovery" if it concludes that the requested discovery "is unreasonably cumulative or duplicative" or can be obtained from a less burdensome source, the requesting party squandered previous opportunities to obtain the information, or the expense of the proposed discovery outweighs its likely benefits.
The court finds that Plaintiff is entitled to depose Munday andaGGC designee pursuant to the discovery plan agreed upon by the parties. On April 11, 2011, the parties filed their Rule 26(f) report which described their agreed discovery plan. The report shows that the parties agreed to exceed the number of depositions permitted under Rule 30(a) and that they stipulated to the following:
Due to the number of issues involved in the litigation, the Parties propose that each side be permitted to depose any customer whose complaint serves as a basis for an asserted claim and the sales representative(s) involved in said interaction. Each side is also permitted to take five depositions of third party witnesses. Finally, each side is permitted to take ten other depositions in its discretion. Should a party seek additional depositions, the Parties agree to confer in good faith to resolve said issue and the Parties agree that leave may be sought to conduct additional depositions.
(R. 23 at 1-2.) As such, the parties stipulated to certain number of depositions under three separate categories. The court will refer to these three categories as "unlimited," "third-party" and "discretionary" in this order.
According to Plaintiff, it is entitled to depose Munday and a GGC designee as third-party witnesses because it still has four of the five depositions allotted under the "third-party" category. (R. 90, Pl.'s Mot. at 14.) Defendants disagree and assert that Plaintiff used up all five under the "third-party" category by deposing R.T. Hwang, Jaime Cline, Mike Puglia, Adam Scrivner and B.J. Savage. (R. 103, Def.'s Resp. Br. at 4.) In defending its stance, Plaintiff arguesthat four of these five depositions should not be charged to the "third-party" category because all four deponents (Cline, Puglia, Scrivner and Savage) were Defendant Pinnacle's sales representatives and thus their depositions fall under the "unlimited" category. (R. 90, Pl.'s Mot. at 14.) Plaintiff further argues that even if Cline, Puglia, and Scrivner are charged to the "third-party" category, Plaintiff is entitled to depose at least one more third-party witness because Savage is an employee of Pinnacle and therefore not a third-party witness. (Id.)
The court finds that Plaintiff should be permitted to depose Munday and a GGC designee as its last two depositions under the "third-party" category. The court agrees with Defendants that the depositions of Cline, Puglia, Scrivner, and Savage do not fall under the "unlimited" category. As Defendants correctly argue, the "unlimited" category is reserved for deposing customers who terminated their home security contracts with Plaintiff and switched to Pinnacle and for those particular sales representatives involved in the service switch. However, the depositions of Scrivner and Savage should not be charged to the "third-party" category. Plaintiff deposed Scrivner in October 2011, but the deposition did not produce helpful information on several substantive topics because Scrivner invoked his Fifth Amendment privilege against self-incrimination. (R. 90, Pl.'s Mot., Ex. K.) Plaintiff should not be penalized for Scrivner's decision and is entitled to take another third-party deposition to fill in the gaps left open by his refusal to answer substantive questions. Also, the deposition of Savage should not be counted under the "third-party" category because Defendants admit in their response that Savage is a "regional sales manager" for Pinnacle, (R. 103, Def.'s Resp. Br. at 4), and his deposition thus falls under the "discretionary" category. Because the depositions of Scrivner and Savage will not be charged to the "third-party" category, Plaintiff is entitled to take two more third-party depositions.
As for Mumford and Tomlinson, Plaintiff is not entitled to take their deposition under the agreed-upon discovery plan. According to the information provided by the parties, Plaintiff deposed the following individuals under the "discretionary" category: (1) Defendant's corporate designee; (2) Kelly Walker; (3) Jared Campbell; (4) Steve Zolman; (5) Steve Hafen; (6) John Barlow; (7) Richard Goates; (8) William Pratt; (9) David Brotherson; and (10) Doug Robinson. The court removes David Brotherson from this category because he also invoked his Fifth Amendment privilege. But because Plaintiff has not provided any information from which this court could conclude that Danny Brotherson was deposed in connection with a specific service sales transaction-which would qualify his deposition to fall within the "unlimited" category-the court concludes that his deposition ...