United States District Court, D. Colorado
ORDER DENYING MOTION FOR PROTECTIVE ORDER
S. Krieger Chief United States District Judge.
MATTER comes before the Court pursuant to the
Defendants' Motion for Protective Order (#
52), and the Plaintiffs' response (#
Court assumes the reader's familiarity with the
underlying dispute. In summary, the Plaintiffs contend that
an online review, disparaging their business, was posted by
the Defendants; the Defendants contend that the review was
posted without their knowledge by third-party Jason Bacher.
Scheduling Order (# 28) entered in this case
in September 2017, setting a discovery deadline of February
28, 2018. Although Mr. Bacher is seemingly central to the
parties' dispute, it appears that neither party initially
intended to depose him. During a deposition of one of the
Defendants in late 2017, counsel for the Plaintiffs
intimated that time-stamped shopping receipts or
other materials might exist that would demonstrate that Mr.
Bacher was not physically present where and when the
disparaging review was being published. As a result of that
intimation, on January 8, 2018, the Defendants served a
subpoena on Mr. Bacher, requesting that he produce any
documents in his possession that reflected his whereabouts on
the date and time in question. That subpoena directed that
Mr. Bacher make such production, in person (in Colorado) or
by mail, within 21 days of service of the subpoena. The
subpoena was served on Mr. Bacher on January 13, 2018, making
his response due on February 5, 2018, the first business day
occurring 21 days thereafter.
meantime, on January 16, 2018, the Plaintiffs noticed Mr.
Bacher for a deposition to be held in Wisconsin, the state of
Mr. Bacher's residence, on February 9, 2018. The notice
further directed that Mr. Bacher bring to the deposition
“the same mobile phone you used to make and receive
calls and send and receive data” on the date that the
review was published. Both parties appear to understand that,
for various reasons, testimony given by Mr. Bacher at this
deposition will be offered at trial in lieu of Mr.
Bacher's personal appearance.
Defendants did not receive any production from Mr. Bacher on
February 5, 2016, and the following day, they filed the
instant Motion for Protective Order (# 52),
seeking to postpone the deposition until some time after Mr.
Bacher complies with the subpoena. They explain that
“if this deposition goes forward, [Mr.] Bacher will
bring with him the phone containing the very same documents
that he failed to produce in response to Defendants'
subpoena, ” and that the Defendants “will then
have to cross-examine [Mr.] Bacher about these same
documents” without having had the ability to
“review, analyze, verify the authenticity, and explore
the metadata of these documents” in advance.
Court denies the Defendants' motion for several reasons.
First, it springs from a faulty premise: that Mr. Bacher has
failed to comply with the subpoena. The subpoena effectively
set February 5 as the deadline for Mr. Bacher to respond, but
also gave him the option of responding by mail. Assuming he
did so by mailing the responsive documents from Wisconsin on
February 5 (or even on Saturday, February 3, the
21st day from service of the subpoena),
may be that such mailing could still have been in transit at
the time the Defendants filed the instant motion on February
6. The Court will not assume that, simply because the
Defendants did not have Mr. Bacher's response in-hand by
February 6, Mr. Bacher failed to comply. The Court
understands the Defendants' need to move expeditiously
given the imminence of the deposition, but the closeness of
the two operative dates here does not justify assuming Mr.
Bacher's non-compliance with the subpoena in the absence
even assuming that Mr. Bacher never responded to the
subpoena, the Court is not persuaded that there is
necessarily an equivalency between the requests in the
Defendants' subpoena and the Plaintiffs' Notice of
Deposition; put differently, the Court is not convinced that,
as the Defendants assert, “[Mr.] Bacher will bring with
him the phone containing the very same documents
that he failed to produce in response to Defendants'
subpoena.” The Defendants' subpoena requested
production of “documents reflecting . . . your
whereabouts”; the Plaintiffs' notice requested
production of “[a] mobile phone.” The two terms
are not inherently synonymous, and although a phone could
conceivably contain “documents, ” it is also
possible for a phone to contain material that would not be
commonly understood to be a “document.” Because
there is no necessary congruity between the materials
requested by the Defendants and the materials requested by
the Plaintiffs, the Court cannot say that, if Mr. Bacher
arrives at the deposition, phone in hand, he will have
necessarily produced something that was also responsive to
the Defendants' subpoena. The Court will not
pre-emptively continue the deposition simply on the
possibility that Mr. Bacher's phone might
contain “documents” responsive to the
assuming Mr. Bacher does arrive at the deposition with
documents stored on his phone (or indeed, documents in paper
form) that are responsive to the Defendants' subpoena but
were never produced, the Court cannot say that,
categorically, that fact would warrant a continuance of the
deposition. The responsive-yet-unproduced documents may be
simple and immediately understood. They may be irrelevant,
falling outside the pertinent time frame. They may be
patently inconclusive on the question of where Mr. Bacher
actually was at a certain point in time. It may be that the
Defendants can adequately assess the documents'
significance and authenticity over a long lunch hour or
during a brief continuance before resuming the deposition.
The remedy of continuing a deposition entirely, particularly
on short notice,  is an overly-broad solution to a problem
whose contours are, as yet, entirely speculative. If
Mr. Bacher winds up producing responsive documents for the
first time at the deposition, and if those documents
are pertinent to establishing Mr. Bacher's whereabouts
during the brief time period in question, and if the
significance of the documents can only be ascertained after
extensive study, the Court might be willing to entertain a
motion by the Defendants to re-open Mr. Bacher's
deposition at a later time to complete any questioning of Mr.
Bacher regarding those documents. But the Court will not
pre-empt that deposition simply on the potential that all of
those contingencies could occur.
the Court finds no good cause to warrant a protective order
vacating the presently-scheduled deposition of Mr. Bacher.
The Defendants' Motion for Protective Order (#
52) is DENIED.
 Pursuant to D.C. Colo. L. Civ. R.
7.1(d), the Court is sufficiently advised of the issues
herein such that it need not await the filing of a reply
 The Plaintiffs' response to the
instant motion argues that, when their counsel asked the
deponent whether Mr. Bacher could have arrived at a location
by a certain time “if Mr. Bacher had made a purchase at
Walgreens for medicine at 7:13, and then canceled that
transaction because he wanted to use a different card and
made another purchase at 7:19 at Walgreens, ” counsel
was simply presenting a “hypothetical question.”
The Plaintiffs go on to suggest that it would be unreasonable
for anyone to think that questions like this “could
have asserted or purported that Mr. Bacher possessed any
receipts or documents.” Such an argument is, frankly,
insulting in its insincerity. It is abundantly clear that
Plaintiffs' counsel fully intended the question to convey