United States District Court, D. Alaska
ORDER RE MOTION FOR AN ORDER LIMITING THE SCOPE OF
PENDING DEPOSITIONS, OR IN THE ALTERNATIVE, FOR A PROTECTIVE
ORDER, AND FOR DISCOVERY SANCTIONS
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
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.
BACKGROUND
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]
DISCUSSION
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
...