Facts
-
Freedom’s Path at Dayton (Freedom’s Path) developed and owned affordable housing for military veterans.
-
The Dayton Metropolitan Housing Authority (DMHA) agreed to partner with Freedom’s Path so the project could receive federal assistance through the Veterans Affairs Supportive Housing (VASH) program, which is jointly administered by the U.S. Department of Veterans Affairs (VA) and the U.S. Department of Housing and Urban Development (HUD).
-
Because Freedom’s Path was a private entity, it could not receive VASH funding without DMHA’s participation.
-
DMHA ultimately did not complete the partnership arrangement, and Freedom’s Path sued DMHA (the merits of the underlying claims were not decided in this order).
-
In discovery, Freedom’s Path sought to take depositions of several nonparty and agency witnesses connected to communications about DMHA’s response to Freedom’s Path and the project’s VASH eligibility, including:
- Alphonzio Prude, DMHA’s former interim CEO;
- De Carol Smith, a VA project manager who had corresponded with DMHA about DMHA’s response to Freedom’s Path;
- Phyllis Smelkinson, a HUD employee who consulted with Smith regarding Freedom’s Path’s VASH eligibility; and
- Raymond Keyser, a HUD employee who consulted with Freedom’s Path’s counsel and DMHA’s CEO, Jennifer Heapy, about possible ways Freedom’s Path could become eligible for VASH.
-
DMHA moved for a protective order to bar those depositions.
-
Freedom’s Path also moved to compel continued deposition testimony from Heapy after disputes during her deposition. Freedom’s Path complained that DMHA’s counsel repeatedly interrupted questioning, told Heapy to answer only if she could, asked for “clarification” of questions, and at times instructed Heapy not to answer without relying on privilege or a court-ordered limitation.
Issues
- Whether DMHA showed “good cause” under Rule 26(c) to bar the noticed depositions by identifying specific facts demonstrating a clearly defined and serious injury that would result if the depositions went forward.
- Whether the depositions of Prude and the VA/HUD witnesses sought relevant and proportional discovery under Rule 26(b)(1), or instead imposed an undue burden, were duplicative, or were otherwise improper.
- Whether Rule 30(c)(2) permitted DMHA’s counsel to instruct Heapy not to answer, or to interrupt questioning in a way that effectively coached the witness, absent a claim of privilege, a court limitation, or a motion under Rule 30(d)(3).
Decision
- DMHA’s motion for a protective order barring the depositions was denied.
- Freedom’s Path’s motion to compel was granted.
- The court allowed the depositions of Prude and the identified VA/HUD witnesses to proceed.
- The court ordered that Heapy’s deposition continue and be completed.
- The court directed that deposition objections be stated concisely and in a non-argumentative, non-suggestive manner, and admonished counsel against coaching and against instructions not to answer except on the narrow grounds permitted by Rule 30(c)(2).
Legal Principles
- Discovery under Rule 26(b)(1) permits inquiry into nonprivileged matter that is relevant to a party’s claims or defenses and proportional to the needs of the case.
- On a motion to compel, the requesting party bears the initial burden to show relevance; once that showing is made, the resisting party must show the discovery is not relevant or that any marginal relevance is outweighed by undue burden or harm.
- A protective order under Rule 26(c) requires “good cause,” supported by specific facts showing a clearly defined and serious injury; generalized or conclusory assertions are not enough.
- Under Rule 30(c)(2), a deponent generally must answer questions despite objections. Instructions not to answer are permitted only to preserve a privilege, enforce a court-ordered limitation, or stop to present a motion under Rule 30(d)(3).
- Deposition objections must be concise and must not be argumentative or suggestive; counsel may not use objections or “clarifications” to coach a witness or obstruct questioning.
Conclusion
The court refused to bar depositions that sought information about DMHA’s actions and communications concerning Freedom’s Path’s attempt to obtain VASH assistance, finding no fact-based showing of harm sufficient for a protective order. It also compelled the continued deposition of DMHA’s CEO and policed deposition conduct by reminding counsel that objections preserve issues for later review but do not justify coaching or instructions not to answer outside the limited circumstances allowed by Rule 30.