Camoco, LLC v. Leyva

• Decision Date: 19 November 2019
• Docket Number: EP-18-CV-00279-DCG
• Citation: Camoco, LLC v. Leyva, EP-18-CV-00279-DCG (W.D. Tex. Nov 19, 2019)
• Court: U.S. District Court — Western District of Texas
• Parties: CAMOCO, LLC, Plaintiff, v. CARLOS LEYVA a/k/a AJ&I CONSTRUCTION CLEAN UP, Defendant.

CAMOCO, LLC, Plaintiff, v. CARLOS LEYVA a/k/a AJ&I CONSTRUCTION CLEAN UP, Defendant.

EP-18-CV-00279-DCG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

November 19, 2019

MEMORANDUM OPINION AND ORDER

Presently before the Court is PlaintiffCamoco, LLC's "Emergency Motion to Extend Discovery Deadline and Compel Deposition of Non-Party Witness"("Motion")(ECF No. 79) filed on October 28, 2019.Therein, Plaintiff asks the Court to extend the discovery deadline for 30 days from the date of the Scheduling Order—November 1, 2019, see Scheduling Order (ECF No. 55) and compel the deposition of Ms. Carla Moreno("Ms. Moreno"), a represented non-party witness, during the requested extended discovery period.Mot.at 7.¹For the reasons that follow, the CourtGRANTS IN PART and DENIES IN PARTPlaintiff's Motion.

I.BACKGROUND

On July 13, 2018Plaintiff filed this action against DefendantCarlos Leyva a/k/a/ AJ&I Construction Clean Up ("Defendant") under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), Fla. Stat. § 501.204(1), alleging that Defendant breached an employment agreement with Plaintiff when he opened a side business during his employment, operated thatbusiness in competition with Plaintiff, and used Plaintiff's employees, business assets, and resources to operate that business.Mot.at 2;see alsoCompl.at 2, ECF No. 2.Plaintiff claims to have lost more than $100,000 in business revenue and customer contracts since Defendant started his side business competing with it.SeeCompl.at 2.

Plaintiff seeks to depose Ms. Moreno, who worked for Plaintiff during the same time Plaintiff employed Defendant and again after Defendant stopped working for Plaintiff.Mot.at 2.Plaintiff asserts that Ms. Moreno is a non-party witness with knowledge of relevant facts in this case because Defendant claims that Plaintiff's business losses "were caused in part by Moreno's poor work performance."Id.Moreover, Plaintiff asserts that "Defendant and Moreno are romantically involved and, [based] on information and belief, now work together in business in competition with [Plaintiff]."Id.

While Ms. Moreno is not a party to this case, Plaintiff states that she has filed a complaint against it with the Equal Employment Opportunity Commission("EEOC"), in which she is represented by attorneys Enrique Chavez and Michael Anderson.Id. at 2-3.On October 18, 2019, Plaintiff served Ms. Moreno a subpoena for her testimony at a deposition on October 25 regarding the above-captioned case.SeeNotice, ECF No. 78.On October 23, Plaintiff's attorney in the EEOC matter, Nathan Pearman, emailed Ms. Moreno's attorneys to inform them that "he would telephonically attend the deposition" of their client.Mot.at 3.But the next day, Ms. Moreno's attorneys responded to Pearman's email, stating that they would not attend the deposition and that:

Our firm does not represent Carla Moreno in the case of Camoco, LLC v. Carlos Leyva.We do not intend to make an appearance in that case.Ms. Moreno is not a party in that case.

We do not consent to any questioning of Ms. Moreno, at the deposition for the Leyva matter [sic], in any way concerning Ms. Moreno's EEOC charges or claimsat the deposition for the unrelated Leyva matter, any questions to Ms. Moreno regarding her EEOC charges are prohibited by the Rules of Professional Conduct.

Id., Ex. A at 2, ECF No. 79-1.

Before Ms. Moreno's deposition began on October 25, 2019, Plaintiff's attorney in the instant case spoke with one of Ms. Moreno's attorneys by phone.Id. at 3.Ms. Moreno's attorney told Plaintiff's attorney that "he did not object to Moreno being deposed, but [that]he would not attend the deposition and objected that any questioning of Moreno about her past or present employment would violate the Rules of Disciplinary Conduct."Id. at 3-4.Out of an abundance of caution, Plaintiff's counsel limited his questioning of Ms. Moreno during the October 25 deposition.Id. at 4.Plaintiff's counsel then suspended the deposition pending the outcome of the instant motion to compel.Id.

II.APPLICABLE LAW

A.Scope of Discovery

Under Rule 26(b), "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense."Fed. R. Civ. P. 26(b)(1)."Relevant information encompasses 'any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'"Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470(N.D. Tex.2005)(quotingOppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351(1978))."Relevancy is broadly construed, and a request for discovery should be considered relevant if there is 'any possibility' that the information sought may be relevant to the claim or defense of any party."Sheldon v. Vermonty, 204 F.R.D. 679, 689(D. Kan.2001)(quotingScott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. 583, 585(D. Kan.1999))."The party seeking discovery bears the initial burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence."Reynolds v.Cactus Drilling Co., LLC, No. MO15CV00101DAEDC, 2015 WL 12660110, at *2(W.D. Tex.Dec. 21, 2015).However, "[o]nce the party seeking discovery establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly burdensome or oppressive, and thus should not be permitted."Id.

The scope of discovery is within the sound discretion of the trial judge, seeFreeman v. United States, 556 F. 3d 326, 341(5th Cir.2009), who may "tailor discovery narrowly and . . . dictate the sequence of discovery,"Crawford-El v. Britton, 523 U.S. 574, 598(1998).However, the Court must limit discovery, if it determines, on motion or on its own, that "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive" or "the proposed discovery is outside the scope permitted by Rule 26(b)(1)."Fed. R. Civ. P. 26(b)(2)(C).Rule 26(b), although broad, may not be used "as a license to engage in an unwieldy, burdensome, and speculative fishing expedition."Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163(5th Cir.2010).

B.Subpoenas and Motion to Quash or Modify Subpoenas

Federal Rule of Civil Procedure 30(a)(1) provides that a party may depose any party or non-party and compel their attendance to the deposition by a subpoena under Rule 45. Fed. R. Civ. P. 30(a)(1).Rule 45 governs discovery from non-parties through the issuance of subpoenas.SeeFed. R. Civ. P. 45 advisory committee's notes to 2013amendment(In Rule 45, "'person' is substituted for 'party' because the subpoena may be directed to a nonparty.").As with any other forms of discovery, the scope of discovery through a Rule 45 subpoena is governed by Rule 26(b).SeeChamberlain v. Farmington Sav. Bank, No. 3:06CV01437 CFD, 2007 WL 2786421, at *1(D. Conn.Sept. 25, 2007)(citing, inter alia, Fed. R. Civ. P. 45 advisory committee's notesto 1970amendment(stating"the scope of discovery through a subpoena is the same as that applicable to Rule 34 and the other discovery rules"));Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 236(D. Minn.2013)("[S]ubpoenas issued under Rule 45 are subject to the same constraints that apply to all of the other methods of formal discovery."(internal quotation marks and citation omitted)).

C.Motions to Compel Discovery

Under Federal Rule of Civil Procedure 37(a)(3)(B)(i), a party seeking discovery may move for an order compelling an answer, designation, production, or inspection when "a deponent fails to answer a question asked under Rule 30 or 31."Fed. R. Civ. P. 37 (a)(3)(B).The party resisting discovery must show how each discovery request is not relevant or otherwise objectionable.SeeMcLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485(5th Cir.1990).

III.DISCUSSION

A.Extension of Deadline

While Plaintiff's instant motion was pending, the parties filed on November 1, 2019, a "Stipulation Regarding Extension of Discovery Deadline"(ECF No. 82), in which the parties extended the Scheduling Order discovery deadline from November 1, 2019, see Scheduling Order (ECF No. 55), to December 1, 2019.Accordingly, the Court DENIES as MOOT Plaintiff's motion as to the extension of the discovery deadline.

B.Compelling Ms. Moreno's Testimony

Plaintiff moves to compel Ms. Moreno's deposition after her attorneys declined to consent to Plaintiff asking any questions about her past employment with Plaintiff, her separation from it, her current employment, and anything relating to her EEOC discrimination claim.Mot.at 4;see alsoSuppl. Mot., Ex. 1 at 3 (ECFNo. 80-1).Plaintiff claims that questions on thesesubjects are particularly relevant to its claims against Defendant and to Ms. Moreno's credibility as a witness in this case, even though the facts here and those in the EEOC charge may overlap and be jointly relevant.Mot.at 4-5.Ms. Moreno's attorneys communicated their opposition to questions on these subjects after stating that they would not attend Ms. Moreno's deposition because they do not represent her in this case.Id., Ex. A at 2, ECF No. 79-1.Further, Ms. Moreno's attorneys contend that if Plaintiff makes any such questions, then Plaintiff would be violating the Rules of Professional Conduct—namely, Texas Disciplinary Rule of Professional Conduct 4.02.²Accordingly, the Court will first address whether Plaintiff would be violating Rule 4.02 under these circumstances and then, whether Plaintiff can still depose Ms. Moreno on these facts.

1.Texas Disciplinary Rule of Professional Conduct 4.02

Texas Disciplinary Rule of Professional Conduct 4.02 provides that:

In representing a client, a lawyer shall not

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