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Wright v. SBA Communications Corp.

United States District Court, N.D. West Virginia

May 1, 2018

J. RON WRIGHT, in his capacity as Administrator of the Estate of TERRY LEE RICHARD, JR., Plaintiff,
v.
SBA COMMUNICATIONS CORP.; SBA TOWERS, LLC; SBA INFRASTRUCTURE, LLC; SBA NETWORK SERVICES, LLC; FDH VELOCITEL; FDH ENGINEERING, INC.; FDH INNOVATION; and FDH, INC., Defendants. and FDH, INC., now known as KCHM, INC.; and FDH ENGINEERING, INC., now known as KCHM and ASSOCIATES, INC., Third-Party Plaintiffs,
v.
S&S COMMUNICATION SPECIALISTS, INC.; THE ESTATE OF KYLE KIRKPATRICK; JERRY HILL; and RANDALL MCELHANEY, Third-Party Defendants. and VELOCITEL, INC. d/b/a FDH VELOCITEL, Third-Party Plaintiff,
v.
THE ESTATE OF KYLE KIRKPATRICK; JERRY HILL; and RANDALL McELHANEY, Third-Party Defendants.

          JUDGE KEELEY

          OPINION AND ORDER

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This case is before the undersigned pursuant to a referral order (ECF No. 246) entered by United States District Judge, Irene M. Keeley, on March 28, 2018. For the reasons discussed below, Defendant's Motion for Entry of a Protective Order is DENIED.

         I. Procedural History

         On March 27, 2018, KCHM filed a Motion for Protective Order (ECF No. 241) and Memorandum in Support[1] (ECF No. 242), which had been filed after Plaintiff filed his Fifth Amended Notice of Deposition Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure to Defendants FDH, Inc., now known as KCHM, Inc. and FDH Engineering, Inc., now known as KCHM and Associates, Inc. KCHM argued that the information that the Plaintiff sought was inappropriate “financial discovery” that would give the Plaintiff an unfair advantage in settlement negotiations and such inquiry is premature as the Plaintiff has not made a prima facie showing justifying an award for punitive damages.[2] On April 23, 2018, Plaintiff filed his Memorandum of Law in Opposition of KCHM's Motion for Entry of a Protective Order (ECF No. 261). Plaintiff argued that it is not seeking financial information, but rather the information will substantiate Plaintiff's argument that Velocitel is a successor in interest of KCHM and would also be responsible for any liability placed on KCHM, making Velocitel an appropriate party to the case.

         Then on April 26, 2018, Defendant KCHM filed its Reply in Support of KCHM, Inc. and KCHM and Associates, Inc.'s Motion for Entry of a Protective Order (ECF N. 268). The Defendant argued that the financial discovery that Plaintiff seeks is irrelevant to the claims against the Defendants and Plaintiff has not sufficiently pled a claim that would allow the Plaintiff to “pierce the corporate veil” to gain such information. On April 30, 2018, the parties came before Magistrate Judge Michael John Aloi for a hearing to determine whether or not a protective order should be granted as to the Rule 30(b)(6) Deposition Areas of Inquiry Nos. 1, 2, 4, 6, 7, 8, 9 and 11. During the hearing, Defendant KCHM argued that because Plaintiff has not adequately pled a claim against Velocitel and this request for discovery is inappropriate, absent amending the pleadings. Plaintiff contended that its Complaint does allege that Velocitel is the successor to KCHM and, more importantly, this information is required because of Defendant Velocitel's Motion for Judgment on the Pleadings (ECF No. 63), in which Velocitel moved to dismiss itself from the case claiming that it was not an appropriate party in the case.

         II. Applicable Law

         Rule 30(b)(6) of the Federal Rules of Civil Procedure provides in pertinent part:

(6) Notice of Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

         Rule 26(c) of the Federal Rules of Civil Procedure provides in pertinent part:

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending-or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
. . .
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or ...

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