Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF OREGON
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`MEDFORD DIVISION
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`Case No. 1 :21-cv-01520-CL
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`OPINION AND ORDER
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`LIESE BEHRINGER,
`
`Plaintiff,
`
`V .•
`
`CITY OF ASHLAND, et al.,
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`Defendants.
`
`CLARKE, Magistrate Judge.
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`Defendant Providence Health & Services Oregon, dba Providence Medford Medical
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`Center ("Providence") requests a protective ordeiyeither quashing or limiting the Rule 30(b)(6)
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`deposition noticed by Plaintiff. Def. 's Second Mot. Prot. Order (#108).
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`The Motion is GRANTED and DENIED in part for the reasons below.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 26 defines the scope of discovery generally as "any
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`nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs
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`of the case." Fed. R. Civ. P. 26(b)(l). Discovery that "is unreasonably cumulative or duplicative,
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`or can be obtained from some other source that is more convenient, less burd~nsome, or less
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`.
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`.
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`expensive," must be limited by the Court. Fed. R. Civ. P. 26(b)(2)(C).
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`When pursuing discovery under Federal Rule of Civil Procedure 30(b)(6), the
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`accompanying deposition notice "must describe with reasonable particularity the matters for
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`1 - Opinion and Order
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF OREGON
`
`MEDFORD DIVISION
`
`Case No. 1 :21-cv-01520-CL
`
`OPINION AND ORDER
`
`LIESE BEHRINGER,
`
`Plaintiff,
`
`V .•
`
`CITY OF ASHLAND, et al.,
`
`Defendants.
`
`CLARKE, Magistrate Judge.
`
`Defendant Providence Health & Services Oregon, dba Providence Medford Medical
`
`Center ("Providence") requests a protective ordeiyeither quashing or limiting the Rule 30(b)(6)
`
`deposition noticed by Plaintiff. Def. 's Second Mot. Prot. Order (#108).
`
`The Motion is GRANTED and DENIED in part for the reasons below.
`
`LEGAL STANDARD
`
`Federal Rule of Civil Procedure 26 defines the scope of discovery generally as "any
`
`nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs
`
`of the case." Fed. R. Civ. P. 26(b)(l). Discovery that "is unreasonably cumulative or duplicative,
`
`or can be obtained from some other source that is more convenient, less burd~nsome, or less
`
`.
`
`.
`
`expensive," must be limited by the Court. Fed. R. Civ. P. 26(b)(2)(C).
`
`When pursuing discovery under Federal Rule of Civil Procedure 30(b)(6), the
`
`accompanying deposition notice "must describe with reasonable particularity the matters for
`
`1 - Opinion and Order
`
`
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`Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 2 of 7
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`examination," and the organization's designee "must testify about information known or
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`reasonably available to the organization." Fed. R. Civ. P. 30(b)(6).
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`"[A]ny person from whom discovery is sought may move for a protective order." Fed. R.
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`Civ. P. 26(c)(l). Such a motion must include a certification of good faith conferral and be
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`supported by "good cause" to issue an order to protect. Id; see also In re Roman Cath.
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`Archbishop of Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011) ("The party opposing
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`disclosure has the burden of proving 'good cause,' which requires a showing 'that specific·
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`prejudice or harm will result' if the protective order is not granted."). In deciding "when a
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`protective order is appropriate and what degree of protection is required," the court is afforded
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`"broad discretion." Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th
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`Cir. 2002).
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`DISCUSSION
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`Here, based on the arguments raised by the parties in their briefs and at oral argument, the
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`Court grants and denies Providence's Motion as follows.
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`I.
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`The Court GRANTS the Motion as to Topics 1 and 2.
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`Providence Health & Services-Oregon's assistance
`Topic 1:
`to law enforcement with DUI investigations throughout Oregon
`between October 1, 2009 and the present.
`
`Topic 2:
`Providence Health & Services-Oregon's policies
`and procedures regarding allowing law enforcement in treatment
`areas of its emergency departments.
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`Plaintiff's notice as to Topics l and 2 fails to provide the requisite level of specificity
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`required by the Federal Rules to ensure that Providence may adequately prepare a designee to
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`testify. It is unreasonable to expect a deponent to testify competently and completely to every
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`occasion in which Providence personnel assisted an officer with a DUI investigation throughout
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`2 - Opinion and Order
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`
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`Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 3 of 7
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`Oregon since 2009. Likewise, requiring the deponent to know all policies regarding officer
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`presence in treatment areas of Providence's emergency department is u,nreasonably overbroad. It
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`is unclear whether this Topic includes officers coming for entirely unrelated or personal matters.
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`Upon hearing Providence's concerns regarding the scope and detail implicated by these Topics,
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`Plaintiff's counsel expressed a willingness to tailor the language. Plaintiff is directed to do so.
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`The Motion is granted as to Topics 1 and 2.
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`II.
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`The Court DENIES the Motion as to Topics 3, 4, 11, 12, 13, and 16.
`
`Providence Health & Services~Oregon's specific
`Topic 3:
`policies, training, and practices relating to the for~ed
`catheterization of persons in the course of a law enforcement
`investigation:
`
`Topic 4:
`Providence Health & Services-Oregon's specific.
`policies, training, and practices relating to protecting the medical
`privacy of persons in its emergency departments' care.
`
`Topic 11:
`Identification of any and all policy manuals in effect
`in October 2019 that Providence Medford Medical Center
`employees and contractors were required to follow with respect to
`protecting the privacy of persons in its care.
`
`Topic 12: .
`Identification of any and all policy manuals in effect
`in October 2019 that Rrovidence Medford Medical Center
`empfoyees and contractors were required to follow with respect to
`• ensuring consent to any and all procedures conducted on persons in
`its care.
`
`Topic 13:
`Any and all prior catheterizations of persons at the
`request of law enforcement, conducted at any and all Providence
`medical facilities in the State of Oregon, between October 1, 2009
`and the present.
`
`Topic 16:
`Any and all data collection and.maintenance
`practices regarding Providence's assistance with faw enforcement
`investigations, to include, but not be limited to, the methods of
`collection and maintenance and the location of that data.
`
`3 - Opinion and Order
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`
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`Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 4 of 7
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`Providence is a named Defendant in this action. As such, Plaintiff is entitled to depose a
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`designated representative of Providence who is prepared and able to testify to matters known or
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`reasonably available to the organization. Information regarding Providence's policies,
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`procedures, and. practices is relevant to Plaintiff's claims, and therefore discoverable. The Motion
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`is denied as to Topics 3, 4, 11, 12, 13, and 16.
`
`III.
`
`The Court GRANTS the Motion as to Topics 5 and 7.
`
`Topic 5: All facts concerning the presentation,
`catheterization, and release of Liese Behringer at the
`Providence Medford Medical Center on or about October 19,
`2019.
`
`Topic 7:
`Jeanette Grimaldi, D.O.'s employment at
`Providence Medford Medical Center
`
`In their current form, Topics 5 and 7 seek duplicative discovery. Plaintiff has already
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`deposed the following people: Jeannette Grimaldi, the attending provider for Plaintiff when she •
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`was transported to Providence; Heidi Jones, the charge nurse and individual who performed the
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`catheterization at issue in this case; Courtney McCambridge, the triage nurse in the emergency
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`department on the night of Plaintiff's arrest; and Defendant Justin McCreadie, the arresting
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`.officer whose body camera recorded nearly all events in question. Plaintiff has also submitted
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`interrogatories and document requests to Providence regarding the employment of these
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`individuals.
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`To the extent Plaintiff's counsel relies on these Topics to elicit information regarding
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`Providence's employment structure or policies, as alluded to during oral argument, Plaintiff is
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`permitted to tailor the language of the notice to focus on those matters. As stated, however, these
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`two Topics seek duplicative discovery from someone other than the individuals who witnessed
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`/
`the events in question. The Motion is granted as to Topics 5 and 7.
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`4 Opinion and Order
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`
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`Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 5 of 7
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`IV.
`
`The Court GRANTS the Motion as to Topics 6, 8, ~' and 10 ..
`
`The factual basis for each and every affirmative
`Topic 6:
`· defense asserted by Providence Health & Services-Oregon in its
`answer to the Plaintiff's Amended Complaint.
`
`Topic 8:
`. All representations made by Providence Health &
`Services-Oregon's Disclosure. Statements in this matter.
`
`Providence Health & Servic~s-Oregon's Answer to
`Topic 9:
`the Amended Complaint in this matter.
`
`Topic 10:
`Identification of any and all state/federal statutes or,
`other industry regulations that the staff of Providence Medford
`Medical Center followed in 2019 with regards to the
`catheterization of:OUI suspects presented by law enforcement for
`• catheterization.
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`Providence argues that these topics improperly implicate privileged information, attorney
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`work-product,.and contention testimony. The Court agrees.
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`Courts are split on whether contention topics are an improper topic for a Rule 30(b)(6)
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`deposition. See, e.g., Zeleny v. Newsom, No. 17-cv-07357-RS (TSH), 2020 U.S. Dist. LEXIS
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`100944, at *6-8 (N.D. Cal. June 9, 2020); see also Arctic Cat, Inc. v. Bombardier Rec. Prods.,
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`No. 12-cv-2692 (JRT/LIB), 2014 U.S. Dist. LEXIS 192860, at *18-20 (D. Minn. May 23, 2024).
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`· This Court has ruled on similar noticed topics that sought all facts and evidence supporting
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`contentions in the complaint and found them unreasonable and improper for a Rule 30(b)(6)
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`deposition. See Fed. Trade Comm'n v. Adept Mgmt. Inc., No. 1 :16-CV-00720-CL, 2018 WL
`.
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`.
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`11415859 (D. Or. Apr. 19, 2018).
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`In this dispute, the Court finds persuasive that Rule 30(b)(6) topics seeking to elicit
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`deposition testimony on all facts in support of a claim or contention, such as Topics 6, 8, 9, and
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`10, are overly broad, improper topics for a Rule 30(b)(6) deposition. A Rule 30(b)(6) deponent is
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`a lay witness. For Providence's 30(b)(6) designee to know which facts Providence will advance
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`5 Opinion and Order
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`
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`Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 6 of 7
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`as supporting its defenses, the designee would require a response fed to him or her by
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`Providence's counsel. The designee's answer would essenti~ly be a recitation of the information
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`received by Providence's counsel. Even where the designee is aware of or knows all the
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`underlying facts of the case, he or she cannot be certain of which facts Providence's counsel will
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`rely on to support Providence's defenses unless counsel prepares the designee to answer that
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`question.
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`J
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`To the extent Plaintiff seeks only to gain information regarding the underlying factual
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`events of the case, such inquiry is permissible but better suited for witnesses who were present
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`for the event. The Motion is granted as to Topics 6, 8, 9, and 10.
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`V.
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`The Court DENIES the Motion as to Topics 14 and 15.
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`The scope and findings of any investigation
`Topic 14:
`conducted into the events discussed in the Amended Complaint in
`this matter.
`
`Any corrective action related to policies,
`Topic 15:
`procedures, practices, or training resulting from or related to the
`events discussed in the Amended Complaint in this matter.
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`Providence seeks to be shielded from Topics· 14 and 15 as well, arguing that they violate
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`• work-product privileges. From the face of these two Topics, it is not clear that Plaintiff.is seeking
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`legal conclusions or otherwise privileged information. Plaintiff's counsel expressed at oral
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`argument that she seeks only to know what investigations occurred following Plaintiff's arrest,
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`not documents prepared in anticipation of litigation .. Plaintiff is entitled to ask what, if any,
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`investigations were conducted by Providence following the incident. Defendant will have the
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`opportunity to object to questions, if any, meant to elicit information protected by the work
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`product doctrine, privileged attorney-client communications, or other applicable privileges. The
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`Motion is denied as to Topics 14 and 15.
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`I
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`6 Opinion and Order
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`Case 1:21-cv-01520-CL Document 116 Filed 08/14/24 Page 7 of 7
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`CONCLUSION
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`For the reasons above, Providence's Second Motion for Protective Order (#108) is
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`GRANTED and DENIED in·part. The Motion is granted as to Topics 1, 2; 5, 6, 7, 8, 9, and 10.
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`Those Topics are to be limited, ,struck, or revised as provided above prior to the Rule 30(b)(6)
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`deposition. The Motion is DENIED at to Topics 3, 4, 11, 12, 13, 14, 15, and 16.
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`United States Magistrate Judge
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`7 Opinion and Order .
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