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LLC v. Unite Here! Local 878

United States District Court, D. Alaska

December 18, 2019

UNITE HERE! LOCAL 878, et al., Defendants.



         Before the Court at Docket 57 is Defendant UNITE HERE! and Defendant UNITE HERE! Local 878's (“Defendants”) Motion for an Order Limiting the Scope of Pending Depositions, or in the Alternative, for a Protective Order, and for Discovery Sanctions. Plaintiff CP Anchorage Hotel 2, LLC d/b/a Anchorage Hilton (“Anchorage Hilton”) responded in opposition at Docket 64. Defendants replied at Docket 67. Oral argument was not requested and was not necessary to the Court's decision.


         In the operative complaint, Plaintiff alleges that, since 2009, Defendants have staged a years-long boycott against it in response to a labor dispute.[1]Specifically, the First Amended Complaint (“FAC”) summarizes Defendants' boycotting activities targeting the Veterinary Cancer Society's (“VCS”) annual conference and the Alaska State Council and local Anchorage Chapter of Human Resource Managers' (together, “ASHRM”) conference.[2] Plaintiff alleges that the VCS cancelled its contract to host its 2018 conference at the Anchorage Hilton as a result of a “months-long harassment campaign” by Defendants, which included unsolicited contact with members of the VCS and the keynote speaker, fraudulent representations that the program was cancelled, and a protest at a veterinary clinic.[3] Similarly, Plaintiff alleges that Defendants have “led an unlawful campaign of harassment and intimidation against the Alaska State SHRM Council . . . and the local Anchorage Chapter of Human Resource Managers” in advance of their September 2018 Alaska State HR Conference at the Anchorage Hilton.[4] Plaintiff alleges that Defendants' efforts to derail the HR Conference included email, phone, and social media campaigns as well as protests, including at the workplaces of ASHRM board members and at an ASHRM education test preparation class.[5]

         As a result of Defendants' boycotting activities aimed at VCS and ASHRM, Plaintiff alleges two causes of action: (1) violation of Section 8(b)(4) of the National Labor Relations Act (“NLRA”) and (2) defamation.[6]

         In the course of discovery, Plaintiff served deposition notices on Defendants, including a list of Rule 30(b)(6) topics, to which Defendants objected.[7] On October 25, 2019, the parties met and conferred telephonically but were unable to reach agreement on the scope of the depositions.[8] As such, the parties agreed to postpone the depositions pending resolution of their dispute by the Court.[9] On November 1, 2019, Defendants moved to limit the scope of the pending depositions (or for a protective order) and for discovery sanctions.[10] At issue are two Rule 30(b)(6) depositions, as well as eight individual depositions.[11]

         Plaintiff's Rule 30(b)(6) deposition notice identifies eighteen topics that encompass, among other things, Defendants' boycotting of Plaintiff beyond their efforts directed at the VCS and ASHRM conferences (Topic Nos. 1-17), Defendants' boycotting of entities other than Plaintiff (Topic No. 18), and the amount of time and money spent on Defendants' boycotting of Plaintiff (Topic Nos. 11-12).[12] Defendants seek an order limiting the scope of all the depositions to Defendants' boycotting activities “directed at VCS and SHRM from 2017 onward” and preventing any questioning about “boycott activities aimed at third parties” or “time and money spent by Defendants on boycott activities.”[13]


         The Court evaluates Defendants' motion under Fed.R.Civ.P. 26(b), which provides that:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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.

         The parties dispute (1) whether Defendants' boycotting activities other than those directed at the VCS and ASHRM conferences are discoverable, (2) whether the time or money Defendants spent on boycotting of Plaintiff is discoverable, and (3) whether sanctions are warranted. The Court addresses each issue in turn.

         1. Defendants' additional boycotting activities

         Defendants maintain that discovery relating to their boycotting activities beyond those directed at the VCS and ASHRM conferences is irrelevant to either of Plaintiff's causes of action and, moreover, is disproportionate to the needs of the case given the low amount in controversy.[14]

         On the question of relevance, Defendants contend that the analysis for Plaintiff's cause of action under Section 8(b)(4) of the NLRA centers on “whether the union has strayed beyond First Amendment-protected communication intended to persuade people to cease doing business with the primary employer into non-protected conduct, analogous to secondary picketing.”[15] Defendants add that Plaintiff's second cause of action, defamation, arises from allegations that Defendants “defamed [Plaintiff] to VCS and its members by falsely representing that the VCS 2018 mid-year conference was cancelled.”[16] Thus, Defendants reason that “both of [Plaintiff's] causes of actions revolve solely around the content and manner of communications that [Defendants] made to specific third party entities” as alleged in the FAC (the VCS and ASHRM), and that Defendants other activities therefore do not bear on the issues in this case.[17] Defendants reject Plaintiff's justification “that [the proposed discovery] would establish a ‘baseline' of legal conduct against which to compare [Defendants'] allegedly unlawful conduct, ” emphasizing that the law-and not Defendants' baseline of conduct-governs whether Defendants' conduct at issue here is unlawful.[18] Additionally, Defendants emphasize that “lawful boycotting activities during a labor dispute are fully protected by the First Amendment” and that a court “should not permit the discovery process to be misused to chill the exercise of such fundamental rights, ” especially where the discovery has limited relevance.[19]

         On the question of proportionality, Defendants contend that the amount in controversy is low by either party's estimate-Defendants put the amount between zero and $10, 000 and Plaintiff estimates $58, 000 in damages.[20] In contrast, Defendants contend that preparing a corporate witness on the noticed topics, including on all of Defendants' boycotting activities against Plaintiff (at any time) or against other entities (dating back to 2014) would require “countless hours.”[21]

         For its part, Plaintiff contends that Defendants' other boycotting activities are relevant because “[c]omparing such other activity will likely shed additional light on whether the Defendants' conduct was reasonable and lawful or crossed the line, ” and will “help a fact finder evaluate whether the Defendants' conduct was intentional or inadvertent.”[22] Moreover, Plaintiff emphasizes that it might “seek leave to amend its complaint” in which case “discovery into more than just the VCS and SHRM conferences will undeniably be relevant.”[23] Plaintiff reasons that the information is “within the personal knowledge” of the proposed deponents, and that there is no showing that the deposition discovery presents an undue burden.[24]Plaintiff adds that, other than the two Rule 30(b)(6) depositions, the remaining depositions are fact depositions limited to the individual's personal knowledge and will therefore require limited preparation.[25]

         The Court finds that Defendants' other boycotting activities-whether of Plaintiff or of other entities-have little, if any, relevance to the issues in dispute. Plaintiff's allegations against Defendants are intimately tied to the two conferences described in the FAC and Plaintiff has failed to articulate a reasonable basis for relevance for the proposed discovery of Defendants' other boycotting activities. Furthermore, Plaintiff has not cited any authority for its contention that Defendants' baseline of activities is relevant to Plaintiff's claims and the Court will not find relevance based on the possibility of a future amended complaint. Particularly where, as here, there are important First Amendment association interests at stake, the Court will not risk chilling those rights by allowing unlimited exploration into Defendants' unrelated boycotting activities.[26]

         Moreover, even assuming that Defendants' other boycotting activities could prove relevant, the sought-after discovery is not proportional to the needs of the case. Given the amount in controversy, which apparently falls somewhere between zero and $58, 000, and the breadth of the topics noticed by Plaintiff, the burden and expense of the proposed discovery outweighs its likely benefit.

         In light of the foregoing, the Court will grant Defendants' motion for an order limiting the scope of questioning in Plaintiff's depositions of corporate and individual witnesses to Defendants' boycotting activities of Plaintiff directed at the VCS and ASHRM conferences.

         2. Defendants' time and resources

         With respect to Plaintiff's Rule 30(b)(6) Topic Nos. 11 and 12, Defendants contend that “[n]either the Section 8(b)(4) claim nor the defamation claim require any analysis as to how a labor organization may have funded or executed allegedly unlawful secondary activity or allegedly defamatory communications.”[27]Defendants maintain that these “intrusive inquiries” tread on their ...

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