Urquhart-Bradley v. Cushman & Wakefield, Inc.

NICOLE URQUHART-BRADLEY, Plaintiff, v. CUSHMAN & WAKEFIELD, INC., et al., Defendants.

Case No. 18-cv-2213 (RCL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 21, 2020

MEMORANDUM OPINION

Before the Court is defendant Cushman & Wakefield's motion for a protective order precluding plaintiff from conducting her proposed Rule 30(b)(6) Deposition. ECF No. 92. Upon consideration of the parties' filings, ECF Nos. 92-2, 94 & 97, plaintiff's Second Amended First Notice of Rule 30(b)(6) Deposition, ECF No. 92-8, the entire record herein, and the relevant legal standards, the Court will GRANT IN PART and DENY IN PART defendant's motion, ECF No. 92. Though plaintiff may question a Cushman & Wakefield Rule 30(b)(6) representative about Subject 7 listed in her Second Amended First Notice of Rule 30(b)(6) Deposition, ECF No. 92-8, she may not question the Rule 30(b)(6) representative about any of the other subjects listed in her Notice.

I. BACKGROUND

The Court assumes familiarity with the facts of this matter and recounts only the information necessary to resolve the present motion.¹ Plaintiff initiated this employmentdiscrimination suit in September 2018. ECF No. 1. In January 2019, she filed an Amended Complaint alleging eight counts of race and gender discrimination (including aiding and abetting that discrimination) against Cushman & Wakefield ("defendant" or "C&W") and its Chief Executive Officer of the Americas, Shawn Mobley. ECF No. 17 at 15-22.

In February 2020, one month before fact discovery was set to close, plaintiff learned of new facts amounting to what she believes to be unlawful retaliation. ECF No. 51 at 9; see ECF Min. Order 2/23/20 (ordering that fact discovery be completed by March 2, 2020). Specifically, plaintiff discovered that shortly after she initiated this lawsuit, Cushman & Wakefield's Chief Executive Officer of Asia Pacific, Matthew Bouw, spoke to the recruiter of a company scouting plaintiff and caused plaintiff's "once promising candidacy" for a position with that company "to be placedon hold." ECF No. 51 at 9.

Armed with this newly discovered evidence, plaintiff moved for leave to file a Second Amended Complaint that included three new claims for retaliation in violation of 42 U.S.C. § 1981, 42 U.S.C. § 2000e et seq. (Title VII), and the D.C. Human Rights Act, D.C. Code § 2-1401 et seq. ECF No. 51. Plaintiff provided the following factual allegations to support these causes of action for retaliation: "On March 13, 2018," she claimed, "a colleague of the recruiter [considering plaintiff] reached out to Matthew Bouw, the former Global Head of Human Resources for [Cushman & Wakefield], who had recently been appointed C&W's CEO of Asia Pacific." ECF No. 51-3 ¶ 76. Although "CEO Bouw declined to provide a written statement about [plaintiff], he immediately offered to speak with the recruiter by phone." Id. at ¶ 78. And "[a]s a result of CEO Bouw's statements about Plaintiff, her promising candidacy for the lucrative position was placed on hold and never revived." Id. at ¶ 79. Plaintiff also alleged that "earlier in Mr. Bouw's tenure" at Cushman & Wakefield, "his female direct report, herself the AmericasHead of Human Resources, had left the Company after complaining that Mr. Bouw had acted inappropriately toward her, including by using a derogatory term specific to women to refer to her in front of colleagues." Id. at ¶ 77.

At the same time plaintiff sought leave to add these allegations to a Second Amended Complaint, she also moved for "a two-month extension of the fact discovery deadline in this case until May 2, 2020, for the limited purpose of pursuing the discovery outlined below in support of her retaliation claim[s]." ECF No. 51 at 9. She then explained that "the discrete actions of Mr. Bouw will require limited additional discovery that should be readily accomplished within the two-month window [she] proposed." Id. at 14. In support of her request, plaintiff argued that a limited extension of discovery was warranted because she had just discovered Mr. Bouw's actions. Id. at 12.

The Court granted plaintiff leave to file a Second Amended Complaint with her three new retaliation claims. ECF No. 64 ("May 2020 Order"). It also granted plaintiff's request for a "limited extension of the fact discovery deadline." Id. (capitalization altered). Accordingly, though discovery on plaintiff's discrimination claims closed on March 2, 2020, ECF Min. Order 2/13/20, the Court extended the fact discovery deadline on plaintiff's retaliation claims by two months. Id. After the Court entered its May 2020 Order authorizing additional limited discovery into plaintiff's retaliation claims, it has twice granted the parties' requests to further extend that deadline. See ECF No. 77 (entered 7/28/20); ECF No. 83 (entered 9/15/20). The first of those requests came from Cushman & Wakefield. ECF No. 72. The second was sought by joint motion. ECF No. 82.²

Approximately one month before discovery on plaintiff's retaliation claims was set to close, plaintiff served her First Notice of Rule 30(b)(6) Deposition on defendant. ECF Nos. 92-2 at 4 & 94 at 6. In the weeks that followed, plaintiff twice amended her Notice. ECF Nos. 92-2 at 4-5 n.3 & 94 at 8 n.4. Her Second Amended First Notice of Rule 30(b)(6) Deposition lists sixteen "subjects of testimony" that cover a wide swath of topics, ranging from Cushman & Wakefield's practices regarding employee termination, retention, and compensation, to the company's diversity and inclusion initiatives. See ECF No. 92-8 at 4-7.

Defendant objected to plaintiff's Notice, and the parties met and conferred. ECF No. 92-2 at 4 n.3. When it became clear that the parties could not resolve their differences, defendant filed the present motion for a protective order. See id.; ECF No. 92. According to defendant, plaintiff's Notice of Rule 30(b)(6) Deposition exceeds the scope of the discovery authorized by the Court's May 2020 Order. ECF No. 92-2 at 1. Defendant also argues that the subjects of testimony contained in plaintiff's Notice are unreasonably cumulative and that preparing a corporate representative to testify about the subjects requested would be unduly burdensome. Id. at 1-2.

Plaintiff opposed the motion, arguing that the testimony sought in her Notice of Rule 30(b)(6) Deposition "is well within the scope of discovery authorized by [the] Court in its May 2020 Order extending the fact discovery deadline per Plaintiff's request and its subsequent Order granting the parties' Joint Motion to further extend that deadline." ECF No. 94 at 1 (internal citations omitted). Defendant replied. ECF No. 97. The motion is now ripe for consideration.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 26(c) provides that "[a] party . . . from whom discovery is sought may move for a protective order in the court where the action is pending." Fed. R. Civ. P. 26(c). Upon a showing of good cause, district courts may "forbid[ ] discovery" by "issu[ing] an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Id. A protective order may be appropriate when: (i) "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," (ii) "the party seeking discovery has had ample opportunity to obtain the information by discovery in the action," or (iii) "the proposed discovery is outside the scope permitted by Rule 26(b)(1)," which allows for discovery of "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)(2)(C)(i)-(iii) & 26(b)(1).

As the party seeking a protective order, defendant bears the burden of showing "good cause," which requires a "specific demonstration of facts to support [its] request." Fed. R. Civ. P. 26(c)(1); Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). As indicated by the text of Rule 26(c), "good cause" exists "when justice requires the protection of a party or person from any annoyance, embarrassment, oppression, or undue burden or expense." Alexander, 186 F.R.D. at 75 (citing Fed. R. Civ. P. 26(c)).

III. DISCUSSION

A. The Court's May 2020 Order Authorized a Limited Extension of Fact Discovery Specifically Related to Plaintiff's Retaliation Claims

Before deciding whether the sixteen subjects listed in plaintiff's Notice of Rule 30(b)(6) Deposition warrant a protective order under the standards set forth in Rule 26, the Court must first decide whether those subjects exceed the scope of the Court's May 2020 Order authorizing alimited extension of fact discovery. If so, the inquiry ends there; plaintiff may not conduct discovery that violates a Court Order.

The parties disagree about what the Court authorized in its May 2020 Order granting a limited extension of fact discovery, ECF No. 83. Defendant argues that the Court's Order authorized limited discovery into matters "expressly related" to plaintiff's retaliation claims. ECF No. 92-2 at 5. Plaintiff says that the May 2020 Order gave the parties additional time to conduct discovery on plaintiff's newly added retaliation claims and to continue discovery on her existing discrimination claims. ECF No. 94 at 5-6. Considering the breadth of information requested in plaintiff's Notice of Rule 30(b)(6) Deposition, it is no surprise that she argues as such.

But plaintiff is mistaken. When the Court granted plaintiff's request for a limited extension of fact discovery, it did so in reliance on plaintiff's explicit representation that she sought a modest two-month extension of fact discovery "for the limited purpose of pursuing the discovery outlined below in support of her retaliation claim[s]." ECF No. 51 at 9. She then added that "the discrete actions of Mr. Bouw will require limited additional discovery that should be readily accomplished" within two months. Id. at 14 (emphasis added)....