The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JONATHAN A. YOURGA, )
Plaintiff, )
)
v. ) Civil Action No. 16-30167-MGM
)
CITY OF NORTHAMPTON, et al. )
Defendants. )
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO
CONDUCT ADDITIONAL DEPOSITIONS AND FOR PRODUCTION OF DOCUMENTS
(Dkt. No. 93)
ROBERTSON, M.J.
INTRODUCTION
Plaintiff Johnathan Yourga (“Plaintiff”) is a former employee of the Smith Vocational
and Agricultural High School (“the School”) in Northampton. He was employed in the
automotive department. Plaintiff, who left his position in or around late May or early June 2014,
alleges a constructive discharge. The defendants are the City of Northampton, the Trustees of
the School, Jeffrey Peterson, former Superintendent of the School, and Kevin Brown, former
Director of Security of the School. Plaintiff’s claims under 42 U.S.C. § 1983 against the City
and the Trustees were dismissed. Plaintiff’s remaining claims are: common law negligence and
breach of the covenant of good faith and fair dealing against the City and the Trustees, and
violations of civil rights under state and federal law, common law conspiracy, invasion of
privacy, intentional infliction of emotional distress, defamation, interference with advantageous
relations, malicious prosecution, and abuse of process against Peterson and Brown.
Before the court is Plaintiff’s Motion for Leave to Conduct Additional Depositions and For
Production of Documents (Dkt. No. 93) (“Plaintiff’s Motion”). The court deems argument on
this motion unnecessary. For the reasons set forth below, the motion is GRANTED IN PART
and DENIED IN PART.
1. Production of Documents
So much of Plaintiff’s Motion as seeks to compel the production of documents merits
little discussion. Defendants represent – and Plaintiff does not dispute – that Plaintiff never
served requests pursuant to Fed. R. Civ. P. 34(a) and (b) for the documents whose production he
seeks to compel (Dkt. No. 114 at 4). Plaintiff’s response to this fundamental omission on his
part is: “Defendants would have objected in any event. There is no prejudice” (Dkt. No. 109 at
5). Federal Rule of Civil Procedure 37(a)(3)(b)(iv) provides that a motion for a court order to a
party compelling the production of documents may be made only “when a party fails to produce
documents or fails to respond that inspection will be permitted – or fails to permit inspection – as
requested under Rule 34.” (Emphasis added.). By the plain terms of Rule 37, “’[a] plaintiff
need[s] to first serve his discovery demands before he can move to compel their answer.’”
United States v. Limanni, Civil No. 12-cv-114-JD, 2013 WL 3932315, at *1 n.1 (D.N.H. July 30,
2013) (quoting Fox v. Poole, No. 06CV148, 2007 WL 837117 (W.D.N.Y. Mar. 15, 2007)).
Because Plaintiff never served a document production request on the defendants requesting the
documents whose production he now seeks to compel, the court cannot enter an order
compelling their production.1 Accordingly, so much of Plaintiff’s Motion as seeks to compel the
1 It is too late for Plaintiff to remedy this omission. At the parties’ request, the court has
repeatedly extended the deadline for completion of non-expert discovery. Most recently, the
court extended the deadline for completion of non-expert discovery to September 28, 2018,
notifying the parties that they should not expect further extensions of this deadline (Dkt. No.
103). Completion of non-expert discovery requires the service of written discovery requests with
sufficient time for a response to be served by the responding party in advance of the discovery
deadline (Dkt. No. 41); see also Limanni, 2013 WL 3932315, at *1 (when a scheduling order
establishes a deadline for the completion of non-expert discovery, such a deadline requires the
party seeking discovery to serve the requests sufficiently in advance of the deadline that
production of documents is DENIED.2
2. Additional Depositions
This is the second time the court is required to address Plaintiff’s desire to exceed – by a
wide margin – the 10-deposition limit set in Fed. R. Civ. P. 30(a)(2)(A)(i). See Yourga v. City of
Northampton, Civil Action No. 16-30167-MGM, 2018 WL 1053532, at **3-5 (D. Mass. Feb. 26,
2018). Plaintiff has already taken 16 depositions, one of which was a Rule 30(b)(6) deposition
for which the defendants designated three witnesses, with four more depositions scheduled. He
now seeks to take an additional four depositions, for a total of 24 non-expert depositions in a
wrongful termination case. As previously stated,
Another session of this court has explained that “the purpose of the limitation in
the rule is to force counsel to think long and hard about who they want to depose
and to depose only those who are really important, so as to stay within the limit
set by the rule. . . . courts should not freely grant relief from the limits without a
showing of need.” S. F. Health Plan v. McKesson Corp., 264 F.R.D. 20, 21 (D.
Mass. 2010). The party seeking to exceed the 10-deposition limit or re-depose an
individual who has previously been deposed bears the burden of showing a need
for the discovery. See, e.g., S. F. Health Plan, 264 F.R.D. at 21. A court must
limit the frequency of discovery when the discovery sought is unreasonably
responses are due prior to the deadline; citing cases). The time allotted for service of written
discovery requests has expired.
2 It is not clear whether Plaintiff seeks to compel the production of minutes from the meetings of
the School’s board of trustees that reflect discussion, if any, about the criminal prosecution of
Plaintiff and his application for unemployment compensation (Dkt. Nos. 93, 93-2). Trustee John
Cotton testified at his deposition that minutes reflecting such a discussion might exist, although
he also testified that he had no memory of any discussion at a board of trustees meeting about
Plaintiff or those topics (Dkt. No. 102-3 at 6, 14). The administrative assistant to the School’s
superintendent is responsible for preparing minutes for the School’s board meetings. She has
attested that she made a thorough search, that the School has copies of all board minutes for the
relevant time period, and that those minutes do not reflect any discussion about “matters
pertaining to the criminal prosecution of Johnathan Yourga and the unemployment application of
Jonathan Yourga” (Dkt. No. 93-2). A court “cannot compel a party to produce documents that
do not exist.” Payless Shoesource Worldwide, Inc. v. Target Corp., Civil Action No. 05-4023,
2008 WL 973118, at *4 (D. Kan. Apr. 8, 2008) (quotation marks omitted); see also Moulton v.
Bane, Civil No. 14-cv-265-JD, 2015 WL 12990224, at *2 (D.N.H. Nov. 10, 2015). Thus, to the
extent Plaintiff seeks to compel the production of documents responsive to his second request for
documents, his motion is denied.
cumulative or duplicative or can be obtained from some other more convenient,
less burdensome or less expensive source or when the proposed discovery is
otherwise outside the scope permitted by Rule 26(b)(2).
Id. at *3. Keeping these principles in mind, the court considers in turn Plaintiff’s justifications
for seeking to take four additional depositions. See, e.g., AIG Centennial Ins. Co. v. O’Neill, No.
09-60551-CIV, 2010 WL 4116555, at *16 (S.D. Fla. Oct. 18, 2010).
Andrew Linkenhoker. Plaintiff previously sought leave to take Mr. Linkenhoker’s
deposition on the grounds that Mr. Linkenhoker is the current superintendent of the School and a
former principal. He was not employed by the School when Plaintiff’s employment ended. The
court judged Mr. Linkenhoker’s position an insufficient justification for taking his deposition.
Plaintiff now seeks to take Mr. Linkhoker’s deposition because Mr. Linkhoker signed the
defendants’ answers to Plaintiff’s second set of interrogatories and, Plaintiff asserts, must have
had communications with certain trustees of the School in connection with preparation of those
answers. Defense counsel represents that Mr. Linkenhoker signed the interrogatories based on
privileged communications with counsel and did not have communications with other trustees in
connection with signing the interrogatories (Dkt. No. 102). Mr. Linkenhoker cannot testify to
communications that did not take place or to privileged communications with counsel. Plaintiff
still has not established a basis to take Mr. Linkenhoker’s deposition.
Thomas Fitzgerald.3 Plaintiff’s second set of interrogatories to the defendants asked,
among other things, that the defendants identify any trustee of the School who had
communicated with defendant Jeffrey Peterson or defendant Kevin Brown about Plaintiff from
2014 to the present. Plaintiff failed to ask that the subject matter of any such communications be
3 Plaintiff refers variously to a “Thomas Fitzpatrick” and a “Thomas Fitzgerald” (Dkt. No. 93 at
1, 3). The proper name appears to be Thomas Fitzgerald.
described (Dkt. No. 93-1 at 3). The defendants identified Messrs. Fitzgerald and Cahillane as
trustees who had engaged in such communications. Plaintiff deposed Mr. Cahillane. He now
seeks leave to depose Mr. Fitzgerald about “his communications with Peterson regarding
Yourga” (Dkt. No. 93 at 3). It cannot be said that Plaintiff thought long and hard about who he
needed to depose and sought to depose only those whom it was necessary to depose.
Nonetheless, the court cannot say that Mr. Fitzgerald’s communication(s) with Mr. Peterson or
Mr. Brown about Plaintiff are necessarily irrelevant to Plaintiff’s claims. Given that the parties
have until September 28, 2018 to complete non-expert discovery including depositions, that it is
apparent that a number of depositions remain to be scheduled and taken, and that one additional
brief deposition can be accommodated without delaying resolution of the case, the court grants
so much of Plaintiff’s Motion as seeks leave to take Mr. Fitzgerald’s deposition, limited to ninety
minutes of deposition time.
Mayor of Northampton, and Northampton City School Superintendent. Plaintiff’s stated
reason for requiring these depositions is difficult to discern. He appears to be contending that he
should be permitted to take these depositions to ask these members of the School’s board of
trustees whether the board discussed Plaintiff’s application for unemployment compensation or,
after Plaintiff was acquitted, the reasons why he left his job at the School. The defendants have
informed Plaintiff that the minutes of board of trustee meetings do not reflect any such
discussions. Plaintiff has already deposed two individuals who were trustees at the relevant time.
When Mr. Cotton’s testimony is fairly read, it appears that the two trustees testified consistently
that no such discussions took place at any board meeting. Plaintiff has not shown that the Mayor
or the Superintendent of Schools of Northampton discussed Plaintiff with Mr. Peterson or Mr.
Brown, or have relevant personal knowledge about Plaintiff’s employment or the end of his
employment with the School. Requiring the Mayor of Northampton and the Northampton
Superintendent of Schools to appear for a deposition to confirm that the board of trustees did not
discuss the Plaintiff’s situation, which is what the minutes of the board of trustees meetings
show, particularly where Plaintiff has already deposed two other trustees, and will be permitted
under the terms of this order to depose a third, would be unreasonably cumulative and
duplicative. See Fed. R. Civ. P. 26(b)(2)(C)(i). Plaintiff has not sufficiently shown a need to
depose the Mayor of Northampton or the Northampton Superintendent of Schools.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Leave to Conduct Additional
Depositions and For Production of Documents (Dkt. No. 93) is GRANTED in part and DENIED
in part on the terms set forth in this Memorandum and Order.
Dated: September 6, 2018 /s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
U.S. MAGISTRATE JUDGE