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ORDER

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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

JENNIFER N. FORSHEY, D.M.D., M.D., 

 Plaintiff, 

 v. 

SOUND ORAL & MAXILLOFACIAL

SURGERY, P.S., a Washington corporation;

ROBERT TODD ERICKSON, DDS, and

ANNE ERICKSON, and their marital

community; and INTERMOUNTAIN

EMPLOYMENT SOLUTIONS, INC., a Utah

corporation d.b.a. ASCEND HR SOLUTIONS, 

 Defendants. 

 CASE NO. C06-5335RJB 

 ORDER DENYING DEFENDANTS’ 

 MOTION FOR PROTECTION ORDER 

 FOR ERICKSONS MAY 7TH AND 

 8TH DEPOSITIONS 

 

This matter comes before the Court on the Defendants’ Motion for Protection

Order for Ericksons May 7th and 8th Depositions (Dkt. 82). The Court has considered the

pleadings filed in support of and in opposition to the motion and the file herein. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff Jennifer N. Forshey is an oral surgeon who was hired by Sound Oral & 

Maxillofacial Surgery (“Sound Oral”) in March of 2004. Dkt. 35 at 2. Defendant Dr. Robert

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ORDER

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Todd Erickson, co-owner of Sound Oral, was Dr. Forshey’s direct supervisor. Dkt. 1 at 4. Dr.

Forshey’s employment with Sound Oral was terminated on August 19, 2004. Id. at 2. The 

complaint alleges that the termination stemmed from Dr. Forshey’s opposition to Dr. Erickson 

permitting Michael Serrianne to administer anesthetics when he was in fact not licensed to do so. 

Id. at 5. Dr. Forshey alleges that her termination constitutes wrongful discharge in violation of 

public policy and breach of employment contract. Id. at 7. Intermountain Employment Solutions,

Inc. was dismissed, and the moving defendants are the only defendants remaining in this matter.

See Dkt. 45. 

On June 11, 2005, Dr. Forshey filed a complaint with the Washington State Department

of Health seeking investigation of Dr. Erickson and Sound Oral for allegedly permitting Michael

Serrianne to administer anesthesia without a license. Dkt. 83-3, Exh. 7 at 19. The defendants

contend that Dr. Forshey improperly threatened to file the Department of Health complaint if her

settlement demands were not met. Dkt. 82 at 9 n.7. 

The defendants have retained Dr. O. Ross Beirne, DMD, Ph.D, to testify both in this case

and in the Department of Health’s investigation of Dr. Forshey’s complaint. Dkt. 82 at 2 n.1. Dr.

Beirne was deposed on March 27, 2007, in the Department of Health matter, and counsel for the

plaintiff attended the deposition. Dkt. 83-4, Exh. 9. The defendants contend that the presence of

the plaintiff’s counsel disrupted Dr. Beirne’s deposition. Dkt. 82 at 5. The defendants seek a

protective order because they are concerned that the presence of persons associated with the

Department of Health matter but not involved in this case will serve only to annoy, embarrass, or

harass Dr. and Mrs. Erickson. Dkt. 82 at 9.

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ORDER

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The Motion is noted for consideration on May 4, 2007, and the depositions are scheduled

for May 7 and 8. Dkt. 82 at 1. The Court is aware of the short period of time between the date on

which the Motion became ripe and the dates on which the depositions are to take place. The

Court is also aware of the plaintiff’s opposition to delaying the depositions and has endeavored

to provide the parties a ruling as quickly as practicable. It is unfortunate that the parties were

unable to resolve this discovery dispute without requiring intervention from the Court.

 II. DISCUSSION 

 Unless limited by court order, “[p]arties may obtain discovery regarding any matter, not

privileged, that is relevant to the claim or defense of any party,” Fed. R. Civ. P. 26(b)(1). Federal

Rule 26 governs protective orders and provides the following: 

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is

sought, accompanied by a certification that the movant has in good faith conferred or

attempted to confer with other affected parties in an effort to resolve the dispute without

court action, and for good cause shown, the court . . . may make any order which justice

requires to protect a party or person from annoyance, embarrassment, oppression, or

undue burden or expense, including one or more of the following: 

 . . . 

(5) that discovery be conducted with no one present except persons designated by the

court; 

Fed. R. Civ. P. 26(c). The burden of demonstrating good cause lies with the party seeking the

protective order. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). 

 The defendants seek a protective order “limiting the attendees at Dr. and Mrs. Erickson’s

depositions to the parties, their attorneys, and their staff.” Dkt. 82 at 10. Counsel for the

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ORDER

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defendants conferred with the plaintiff’s counsel and with counsel prosecuting the Department of

Health matter before bringing this motion. Dkt. 83 at 3-4.

The plaintiff opposes the motion on the grounds that the relief sought is “extraordinary,”

and cites a case in which a party was excluded from attending a deposition. Dkt. 85 at 3-4; see

Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973). The defendants do not seek to exclude any

parties to this case. 

While the plaintiff does not contend that granting the motion would be prejudicial or

would negatively impact the deposition, the defendants fail to offer particularized evidence that

the presence of non-parties would result in annoyance, embarrassment, or harassment and fail to

otherwise demonstrate “good cause” for issuing a protective order. The Court notes that the

interests of persons involved in the Department of Health matter, persons who have not appeared

in this case, but filed a declaration (Dkt. 86), would likely not be prejudiced by exclusion from

the depositions because the depositions will be videotaped. A mere lack of prejudice to the

plaintiff or to non-parties who wish to attend the deposition is insufficient to justify a protective

order. The Court should therefore decline to issue a protective order, allowing the parties to seek

redress if the presence of non-parties at the Ericksons’ depositions proves disruptive.

III. ORDER

Therefore, it is hereby 

 ORDERED that the Defendants’ Motion for Protection Order for Ericksons May 7th and

8th Depositions (Dkt. 82) is DENIED. 

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ORDER

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The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address. 

 Dated this 7th day of May, 2007. 

A 

 Robert J. Bryan 

United States District Judge

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