Kiarie v. Dumbstruck, Inc.

Background

The court addressed letters describing several discovery disputes raised by the defendants. The requests concerned a second deposition of plaintiff Kihara Kiarie, the deposition of Kiarie’s transactional lawyer Hillary Hughes, supplemental answers to interrogatories, and a protective order concerning financial information sought from Dumbstruck, Inc.

Second deposition of Kiarie

Under Federal Rule of Civil Procedure 30, a party generally must obtain the court’s permission to depose a person who has already been deposed in the case. The court considered whether the proposed questioning was relevant and proportional to the needs of the case, including whether it would be unnecessarily repetitive, whether the information could have been obtained earlier, and whether the burden outweighed the likely benefit.

The defendants wanted to question Kiarie about 16 investors and 27 customers he claimed to have introduced to Dumbstruck, his hours worked, and his damages calculation. The court concluded that Kiarie had not shown that another deposition would be improper. The defendants had not previously had an opportunity to question him about the significance of the investors and customers or about a later-produced day-by-day account of his working time. The court therefore permitted a second deposition, limited to information or documents produced after the first deposition and lasting no more than four hours, excluding breaks. The defendants were not to repeat earlier damages questions unless they related to later-produced discovery responses.

Deposition of Hughes

The defendants sought to depose Hughes about non-privileged matters concerning the preparation and circulation of transaction documents and communications with Dumbstruck’s attorneys during employment negotiations. The court applied a flexible approach that considers the need for the lawyer’s testimony, the lawyer’s role, the risk of attorney-client privilege or work-product issues, and the discovery already completed.

The court concluded that Hughes’s communications with Kiarie were apparently privileged and that the defendants had not identified non-privileged information that could not be obtained elsewhere. Information about written negotiations was presumably available from the documents, and any oral discussions with the defendants’ own attorneys could be obtained from those defendants or attorneys. Questions about which draft agreements Kiarie relied on should be directed to Kiarie through deposition questions or interrogatories, not to Hughes. The court also rejected the argument that Kiarie had placed his privileged communications with Hughes at issue. The deposition of Hughes was not permitted, and the court stated that Kiarie could not testify about Hughes’s legal advice or use Hughes’s testimony to support his main presentation of the case.

Interrogatory responses

The court ordered supplemental responses on several subjects. For Interrogatory 6, Kiarie had to provide any addresses or contact information he possessed for listed witnesses within 14 days, or affirmatively state in writing that he did not have that information.

For Interrogatory 7, the court allowed Kiarie to rely on a timely expert report for a more detailed calculation because of the calculations’ complexity. But Kiarie had to identify supporting documents within 14 days or be barred from offering those documents in support of his claims. He also had to identify the referenced milestones in a supplemental response within 14 days.

For Interrogatory 8, the court found that an expert was not needed to state the number of hours worked, the appropriate pay rate, the resulting wages, or the amounts claimed for other damages. Kiarie had to provide a supplemental response within 30 days. The court also found his response to Interrogatory 4, which sought damages on all claims, inadequate. He had to provide a complete and understandable answer within 14 days, subject to the court’s limits on reliance on a future expert report.

Financial information and protective order

The defendants sought a protective order allowing Dumbstruck to withhold certain financial information. The court did not decide the merits of the dispute about the valuation date for claims involving stock that vested through July 2019. For purposes of the discovery dispute, Kiarie was not barred from pursuing discovery supporting his claim for damages based on failure to deliver that stock.

The court found that the parties’ submissions did not provide enough information to decide what non-burdensome financial discovery was sought or whether confidential information required protection. It directed the parties to confer again about each type of information separately and in detail. If they reached an impasse, defendants could file their motion within seven days after either party notified the other that negotiations had failed. The court noted that confidential financial information is commonly produced under a protective order and that defendants would bear the burden of showing a clearly defined, specific, and serious injury from production of otherwise responsive and non-burdensome information.

Disposition

The court resolved the parties’ discovery applications as described above and set deadlines for Kiarie’s supplemental responses. The parties could extend those deadlines by mutual agreement without another court order.