Employee’s attempt to depose board chair fails

Where an employee asserting claims for age discrimination and retaliation failed to explore reasonable alternatives before he sought to depose the chairman of the board of directors and chairman of its Governance and Compensation Committee, the magistrate judge did not err in granting the bank’s motion for a protective order.

Background

Bradford Kendrick sued his former employer, Carter Bank & Trust Inc., asserting claims of disparate treatment and harassment, as well as retaliation, under the Age Discrimination in Employment Act. Before the court are Kendrick’s objections to the three magistrate judge orders, as well as Kendrick’s declaration seeking the re-opening of discovery.

Haskins

Kendrick sought to take the deposition of James W. Haskins, who served as the Bank’s Chairman of the Board of Directors and Chairman of its Governance and Compensation Committee and briefly served as its lead counsel in this case by filing a responsive pleading. The magistrate judge granted the bank’s motion for a protective order precluding the deposition, without prejudice to the plaintiffs later making a showing that, despite other discovery efforts, no other reasonable alternatives exist to obtain the unique knowledge that Haskins may have in the management of the bank during the relevant periods.

Kendrick argues that a protective order was not warranted because Haskins was an active participant in the events giving rise to the cause of action and no reasonable alternatives exist to obtain the information embraced by Haskins’ allegedly unique knowledge. The first point of objection is inapposite because the magistrate judge did not dispute it in his analysis.

As to the second point, Haskins was the first witness whom Kendrick noticed for deposition in this case. Further, when asked whether he had exhausted other avenues to obtain any information Haskins might have, Kendrick conceded to the magistrate judge that he had not yet deposed any of the bank’s board members. Given this, the court cannot identify clear error in the conclusion that Kendrick had not explored reasonable alternatives to taking Haskins’ deposition.

Number of depositions

Kendrick objects to the magistrate judge’s order enlarging the number of depositions he could take from 10 to 11, as opposed to the requested total of 15. Kendrick claims that the magistrate judge “effectively deprives [him] of the ability to prepare adequately for summary judgment and trial.” The court disagrees.

Not only was Kendrick himself allegedly in attendance at the September 2017 meeting, he also has had “ample opportunity” to depose witnesses with pertinent information regarding that alleged meeting. Specifically, Kendrick already used three of his 11 depositions to question three of the seven bank employees whom he claims were at this meeting.

Further, Speare and Eldridge signed affidavits swearing that they had no knowledge of this meeting or of those statements, and the other four alleged attendees signed nearly identical affidavits. All indications are that depositions of the latter four individuals would be “unreasonably cumulative or duplicative” of the Speare and Eldridge depositions.

Clawback

At Kendrick’s deposition, Carter Bank introduced a termination letter dated May 27, 2020, which also purported to outline the basis for Kendrick’s termination, but with several important differences from the final termination letter. The bank later requested to claw back the May 27 draft letter, stating that it inadvertently produced the letter with the “mistaken impression that it was the final version of the termination letter.” The magistrate judge held that although Kendrick could not depose Haskins (or whomever drafted the letter), the bank could not claw back the May 27 draft letter.

Kendrick objects to the portion of the order prohibiting him from deposing the person who authored the May 27 draft letter. In several respects, this objection is essentially a repackaged version of Kendrick’s earlier disagreements with the magistrate judge’s order precluding Haskins’ deposition, which the court has already overruled.

Rule 56(d)

Kendrick asks that he be permitted to re-depose Speare and Paul Carney (human resources) due to the bank’s production of a third draft termination letter, dated May 29, and related emails between Speare and Carney. Apart from the change in date, the newly produced draft is substantively identical to the May 27 draft letter that Kendrick questioned Speare and Carney about at their depositions. As such, the court sees no reason to permit re-deposition for questioning solely due to the production of this draft.

Second, Kendrick asks the court to order the bank to produce a native document version of the termination letter. At the hearing, counsel for the bank represented that it already searched the bank’s records for any native document versions of the letter and was not able to locate one.

Plaintiff’s objections overruled.

Kendrick v. Carter Bank & Trust Inc., Case No. 4:19-cv-00047, May 18, 2023. WDVA at Danville (Dillon). VLW 023-3-264. 15 pp.