Federal District Court Opinions
RODRIGUEZ v. WEST PUBLISHING CORP., (W.D.Wash. 11-30-2006) RYAN RODRIGUEZ, et al., Plaintiffs, v. WEST PUBLISHING CORP., et al., Defendants. Case No. C06-1096L. United States District Court, W.D. Washington, At Seattle. November 30, 2006
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR A
PROTECTIVE ORDER
ROBERT LASNIK, District Judge
I. INTRODUCTION
This matter comes before the Court on a motion for a
protective order filed by third parties James Rigos and
Rigos Professional Education Programs, Ltd. (collectively,
“Rigos”). (Dkt. #16). Defendant West Publishing Corporation
d/b/a BAR/BRI (“BAR/BRI”) has issued a subpoena duces tecum
to Rigos seeking numerous categories of documents. Rigos
resides in this district.
For the reasons set forth below, the Court grants the
motion in part and denies it in part.
II. DISCUSSION
In the underlying suit, currently pending in the Central
District of California, BAR/BRI students are suing BAR/BRI
alleging that it entered into illegal conspiracies to create
a monopoly and used its monopoly power to eliminate
competition and artificially inflate prices. Page 2 Rigos
is a direct competitor of BAR/BRI of Washington. He is the
owner and an instructor of a bar examination course which
prepares law school graduates for the Washington state bar
exam. Rigos is listed as a potential witness in plaintiffs’
trial witness list. The underlying case is scheduled to go
to trial in February 2007.
On July 27, 2006, BAR/BRI filed a motion to compel Rigos
to produce documents in response to its subpoena duces
tecum and appear for a deposition. The Court denied
BAR/BRI’s motion for failure to comply with the meet and
confer requirement. It also offered the parties extensive
guidance on the disputed issues, including stating that it
would require Rigos to appear for a deposition and respond
to some of the document requests. The Court noted that it
would not compel Rigos to provide documents responding to
topic #1 in the subpoena, which requested documents
concerning marketing and promotional efforts and
strategies, price lists, pricing strategies, pricing
analyses, business plans, financial documents and models,
short-term or long-term strategies, acquisitions
strategies, and competitive strategies.[fn1] The Court also
noted that many of the other requests appeared to request
relevant documents that Rigos would likely be required to
provide.
After the Court issued its order, BAR/BRI served a revised
subpoena that removed topic #1 and included some additional
requests based on Rigos’ August 5, 2006 declaration.
Although BAR/BRI’s counsel requested a discovery conference
to discuss the requests and the scheduling of Rigos’
deposition, the parties never conducted the conference.
Instead, Rigos filed this motion.
A. Rigos Did Not Comply with Fed.R.Civ.P. 26(c).
Although Rigos has retained well-respected counsel to
represent him regarding the Page 3 subpoena, he has
chosen to file this motion without counsel’s assistance.
That approach has not served him well. Because Rigos, an
attorney, has chosen to represent himself regarding this
motion and to file a motion for a protective order, he was
required to confer in good faith with opposing counsel prior
to bringing this motion pursuant to Federal Rule of Civil
Procedure 26(c). However, Rigos made no effort whatsoever
to do so. If any party or counsel files another motion to
compel or for a protective order without strictly complying
with Local Rule 37 and Fed.R.Civ.P. 26, the Court will
impose sanctions.
B. The Merits of the Dispute.
BAR/BRI urges the Court to consider the merits of the
underlying dispute, despite Rigos’ non-compliance with Rule
26(c). BAR/BRI has expressed concern that denying the motion
on that basis alone “would merely provide Rigos with
another opportunity to delay compliance with BAR/BRI’s
legitimate discovery requests.” Opposition at p. 5. That
argument is well taken. For that reason, and in the
interests of efficiency and expediency, the Court will rule
on the underlying merits of the discovery dispute and
consider whether Rigos has shown good cause for a
protective order.
Rigos requests that the subpoena be quashed in total. That
request is denied. A non-party ordinarily can be compelled
to produce evidence regarding any matter “relevant to the
subject matter involved in the pending action” or
“reasonably calculated to lead to the discovery of
admissible evidence.” Fed.R.Civ.P. 26(b)(1). The liberal
discovery rules are based on the principle that access to
all relevant facts will promote the search for truth and
the integrity and fairness of the judicial process. As the
Court noted when it ruled on BAR/BRI’s motion to compel,
Rigos has relevant information:
Rigos has admitted that he has information relevant to
this litigation. Plaintiffs claim that BAR/BRI has engaged
in illegal tactics to drive competitors from the market,
and Rigos claims that he is one such competitor. His
testimony is directly relevant. Rigos’ expressed desire to
be left alone by both parties is not a reason to preclude
BAR/BRI from learning his relevant knowledge. Similarly,
although Rigos has explained the scope of his knowledge in
detail in his declaration, providing the declaration does
not obviate defendants’ right to depose him. In fact, the
declaration highlights the fact that Rigos has relevant
knowledge. In light of that seemingly extensive knowledge,
Rigos’ allegation Page 4 that BAR/BRI’s desire to depose
him is a predatory act is untenable. If Rigos believes
that BAR/BRI has engaged in unlawful practices, he can
pursue legal remedies.
(Dkt. #11). The Court, in its prior order, also addressed
and rejected Rigos’ claim that he should not be required to
respond to the subpoena because BAR/BRI seeks the discovery
in bad faith. In addition to the arguments previously
asserted and rejected, Rigos argues that BAR/BRI’s bad
faith is evidenced by the fact that it continues to seek
the discovery, even though Rigos does not plan to appear as
a witness in the underlying litigation. Although plaintiffs
have included Rigos in their witness list, Rigos notes that
the California court cannot compel him to appear. However,
the parties could compel his attendance through other
means. Moreover, BAR/BRI is entitled to relevant discovery,
regardless of whether Rigos will appear as a trial witness.
Rigos also contends that complying with the subpoena would
result in undue burden and expense for him. However, Rigos’
contention that he has no time to respond or be deposed
until March 2007, after the underlying litigation is
concluded, is not well taken. Although doing so would be
burdensome for him, he has not shown that it would be
unduly burdensome. Rigos has known about the discovery
requests since they were initially served in June 2006, and
he has had ample time to gather relevant documents. The
Court explained in its August 22, 2006 order that it would
compel Rigos to produce many of the requested documents if
a proper motion were before it. In the intervening three
months, Rigos has apparently made no effort to cooperate
with BAR/BRI or gather documents. Rigos’ burden argument is
further undermined by the fact that he has selectively
provided documents to assist plaintiffs.[fn2]
Rigos’ claim of undue burden is further weakened by the
hyperbolic nature of his arguments. Rigos argues that his
deposition would likely “take many days or weeks to Page 5
complete,” Motion at p. 8, but Federal Rule of Civil
Procedure 30(d)(2) limits depositions to one day of seven
hours unless otherwise ordered or agreed by the
parties.[fn3] Rigos also alleges that responding to the
requests would require him to work full time for a month
reviewing every document in every file. His records, dating
back 27 years, “would fill two 10-foot by 20-foot rooms.”
Rigos Decl. at §§ 14, 17. Rigos dismisses
BAR/BRI’s argument that its requests do not cover documents
prior to January 1, 1996, stating that his files are not
indexed and are not organized by year. Rigos’ disorganized
filing system cannot defeat BAR/BRI’s right to obtain
relevant information.
Having declined to quash the subpoena in its entirety, the
Court considers the scope of the requests. With only one
exception, Rigos has made no attempt to address any of the
specific requests. Specifically, Rigos argues that he would
be required to recreate stolen documents to respond to
BAR/BRI’s Instruction #9, which states, “If any document
that may be responsive to this subpoena was but no longer
is in your possession, custody or control, or no longer
exists or cannot be found, provide a log that shows the
following for each such document: . . .” Rigos Decl., Ex.
E. The instruction requires Rigos to describe, among other
things, the nature of the document, its contents, and
“[a]ll persons having knowledge of the information
contained in the document.” There is no evidence that Rigos
was in any way responsible for the loss or destruction of
the documents. The Court will not require Rigos to compile
the log, as doing so would essentially require him to
recreate the stolen documents. BAR/BRI’s counsel may
question Rigos about the stolen documents, their contents,
and related information during his deposition.
Otherwise, Rigos has not explained why any of the specific
requests, rather than the requests as a whole, are
objectionable. Instead, he alleges in conclusory fashion,
that “almost all Page 6 the Thomson-West-BarBri requests
have nothing to do with their students [sic] claims that
they were over-charged and/or under-served, but rather
focus upon prior predatory acts their course and students
inflicted upon Rigos.” Reply at p. 5. BAR/BRI’s alleged
predatory and anticompetitive practices, however, are at
the core of the underlying lawsuit. Therefore, the requests
appear reasonably calculated to lead to the discovery of
admissible evidence. The lack of specificity in Rigos’
arguments undermines his allegation that the requests are
too broad, burdensome, or seek anti-competitive information.
The Court will not attempt to guess regarding which
portions of the 39 categories of requested documents, plus
subparts, might be objectionable to Rigos and why.
Accordingly, other than Instruction #9 and Request 2(c),
Rigos must comply with the subpoena duces tecum.
III. CONCLUSION
For the foregoing reasons, Rigos’ motion for a protective
order (Dkt. #16) is GRANTED IN PART AND DENIED IN PART.
Defendants are entitled to depose Rigos at a mutually
convenient time and place. Except as set forth above, Rigos
must produce the requested documents no later than 10 days
prior to his deposition.
[fn1] BAR/BRI’s current subpoena requests, among other
categories of documents, “All documents concerning West Bar
Review including, but not limited to, documents reflecting:
. . . (c) Competition with West Bar Review.” Declaration of
James Rigos, (Dkt. #17) (“Rigos Decl.”), Ex. E at p. 7. If
that request is intended to seek documents reflecting
Rigos’ competitive practices or strategies with West Bar
Review, that request is quashed.
[fn2] Although Rigos accuses BAR/BRI’s counsel of violating
the ethical rules by stating that he selectively culled and
provided documents to plaintiffs, counsel was justified in
making that statement based on the Court’s prior order and
Rigos’ declaration. Supplemental Declaration of James Rigos
at § 11 (explaining that he provided plaintiffs with
“copies of a few letters and documents that Davis Wright
Tremaine had sent to West-BarBri’s lawyers”).
[fn3] Rigos has expressed concern that the parties could
agree to extend his deposition without his agreement, since
he is a non-party. The Court sees no reason at this point
why his deposition should extend beyond a single day of
seven hours. Accordingly, Rigos’ deposition shall not
exceed one day of seven hours absent an order of this
Court.
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