E-Alert Case Updates

Motion for Protective Order Granted When Discovery Seeks More Than Alleged in Complaint

Clay v. Consol Pennsylvania Coal Co., LLC, et al.
No. 5:12CV92 (U.S. District Court of the Northern District of West Virginia July 18, 2013)
by Anna C. Horevay, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Clay v. Consol Pennsylvania Coal Co., LLC, et al., the U.S. District Court of the Northern District of West Virginia considered whether a protective order to limit or quash certain topics during a deposition was proper. More specifically, Consol Pennsylvania Coal Co., LLC (“Consol”) objected to any deposition questions related to age discrimination because the underlying suit had only claims for racial discrimination. Judge Frederick Stamp held that because the age discrimination claims had been dismissed from the case, Consol was not required to produce a witness to testify as to age discrimination.

Mr. Clay filed a suit alleging, inter alia, racial discrimination, age discrimination, and retaliation. Pursuant to Mr. Clay’s FED. R. CIV. P. 30(b)(6) notice of a video deposition, Consol filed a motion for a protective order for two (2) topics of testimony that related to age and race discrimination. A magistrate judge found that Consol had to produce a witness to answer questions regarding both age and race state and federal anti-discrimination laws and regarding litigation or claims made against Consol regarding both age and race. At the time that the magistrate judge made that finding, there was a tentative letter ruling from a District Court judge that Mr. Clay’s age discrimination claims would be dismissed. Consol appealed the finding of the magistrate judge based on the tentative ruling of the District Court.

Upon review, the District Court found that the magistrate judge’s findings concerning whether Consol must produce a witness to testify as to age discrimination was not clearly erroneous. Because the tentative letter ruling stated it “should not be construed as an order or a memorandum of opinion for any purpose,” the magistrate judge was correct in finding that without a written order of dismissal, he had to find that the defendants were required to produce a witness to testify as to the topics related to age discrimination.

But, because a written order as to the motion to dismiss had been entered since the magistrate judge’s order, the District Court found that the magistrate judge’s order should be modified because the District Court order dismissed the age discrimination claims. The District Court found that any discovery regarding age discrimination was no longer relevant to the action and must be limited. Therefore, the magistrate judge’s order was modified to reflect that Consol did not have to produce a witness to testify as to policies regarding state and federal anti-age discrimination laws or produce a witness to testify as to any litigation or claims against Consol involving allegations of harassment or discrimination based on age.