IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EQUAL EMPLOYMENT §

OPPORTUNITY COMMISSION, §

 §

Plaintiff, § Civil Action No. 3:22-CV-1807-D

 §

and §

 §

SARAH BUDD, § 

 §

Intervenor-Plaintiff, §

 §

VS. § 

 §

SKYWEST AIRLINES, INC., §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this action by plaintiff Equal Employment Opportunity Commission (“EEOC”) and

intervenor-plaintiff Sarah Budd (“Budd”) (collectively, “plaintiffs,” unless otherwise

indicated) against defendant SkyWest Airlines, Inc. (“SkyWest”), SkyWest moves for leave

to depose Budd and her husband, nonparty witness Michael Billotto (“Billotto”), both of

whom have already been deposed in this case. For the reasons that follow, the court denies

the motion.

I

Plaintiffs allege that SkyWest discriminated against Budd by subjecting her to a

sexually hostile work environment during her employment at SkyWest’s Dallas-Fort Worth

International Airport facility and by retaliating against her for reporting the harassment she

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experienced by placing her on indefinite administrative leave.1

 

Early in the case, SkyWest served plaintiffs with its First Set of Interrogatories and

First Requests for Production, which stated, in relevant part:

Interrogatory No. 11: Please identify with specificity all

communications since August 1, 2019 between you and any

non-parties to this lawsuit regarding your allegations.

Interrogatory No. 15: Please identify all witnesses to or other

persons who may have knowledge about the events made the

basis of this Lawsuit.

Request for Production No. 14: Please produce all

communications between you and any third party regarding or

relating to the events made the basis of this Lawsuit.

Request for Production No. 23: Please produce all e-mails and

text messages concerning the allegations contained in the

complaint.

Request for Production No. 24: Please produce all documents

concerning any online profiles, postings, messages (including,

without limitation, tweets, replies, direct messages, status

updates, wall comments, groups joined, activity streams, and

blog entries), photographs, videos, e-mails, text messages and

communications concerning: (a) any allegations set forth in the

Complaint; (b) any facts or defenses raised in any of the

Defendant’s Answers to the Complaint; (c) any emotion,

feeling, or mental state; and (d) any events that could reasonably

be expected to produce a significant emotion, feeling, or mental

state.

1

The court assumes the parties’ familiarity with its prior memorandum opinions and

orders that recount the background facts and procedural history of this case. See EEOC v.

SkyWest Airlines, Inc., 2024 WL 84211, at *1 (N.D. Tex. Jan. 8, 2024) (Fitzwater, J.); EEOC

v. SkyWest Airlines, Inc., 2024 WL ___ (N.D. Tex. Jan. 17, 2024) (Fitzwater, J.); EEOC v.

SkyWest Airlines, Inc., 2024 WL 476992, at *1-3 (N.D. Tex. Feb. 7, 2024) (Fitzwater, J.).

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D. App. (ECF No. 77-2) at 3, 6; Ps. App. (ECF No. 82) at 2, 6. The EEOC and Budd

responded separately to these requests. The EEOC objected to Request for Production No.

23 to the extent it was duplicative of another request and to Request for Production No. 24

as overly broad in scope and unlimited in time. It responded to Request for Production No.

24 by stating that it did “not have possession, custody or control of any responsive, relevant

documents.” Ps. App. (ECF No. 82) at 2. The EEOC did not object to producing any

document on the basis of the spousal communication privilege in this initial response. Budd,

for her part, responded to Interrogatory No. 15 by identifying Billotto as a person with

knowledge and responded to Interrogatory No. 11 and Request for Production No. 14 by

asserting that communications between her and Billotto were “privileged pursuant to the

marital communications privilege.” Ps. App. (ECF No. 82) at 8; D. App. (ECF No. 77-2) at

3, 6. Plaintiffs assert that they did not produce any written communications between Budd

and Billotto in these responses because Budd “did not (and does not) possess such

information.” Ps. Br. (ECF No. 81) at 2.

SkyWest deposed Budd on March 31, 2023. At the deposition, SkyWest asked

plaintiffs’ counsel whether Budd was “asserting the spousal privilege,” to which plaintiffs’

counsel responded, “Yes.” D. App. (ECF No. 77-3) at 10. Budd did not include Billotto in

her testimony regarding the group of individuals with whom she communicated the most

during the relevant time period, but she did recount several specific conversations that she

had with Billotto about the claims and defenses in the case.

SkyWest deposed Billotto on January 30, 2024. After the parties conferred off the

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record concerning the scope of the privilege, the EEOC confirmed that the “approach that

[it] intend[ed] to take” was to waive the privilege as to “communications between Ms. Budd

and [Billotto] related specifically to the claims or defenses” in the case but to reserve the

right to have a “conversation about specific issues as they [came] up.” D. App. (ECF No.

77-4) at 4-5. Billotto then proceeded to testify that he had spoken with Budd “every single

day” while she was employed at SkyWest, sometimes multiple times a day, and had had

“over 100 conversations” with her about the alleged harassment, including “specifics about

the things that were said in the workplace that she found to be offensive.” Id. at 7-9. He

recounted that Budd had told him about “the rape jar,” “people match[ing] the color of her

shirt with the color of other places on her body,” people stating that individuals of her

religion were “good for f***ing,” and people making “references to her looks, references to

her body parts, references to screws and bolts and lube in her face, near her, references to her

being whored out in parts of Irving and Dallas.” Id. at 10. He testified that there were

additional instances of harassment that Budd had recounted to him that he did not specifically

recall.

After Billotto’s deposition, SkyWest requested a privilege log in response to Request

for Production No. 14 and served a subpoena on Billotto requesting all written

communications between him and Budd “discussing or referring to the events, claims and

defenses made the basis of” the case. D. App. (ECF No. 77-5) at 5.2

 Plaintiffs informed

2

Plaintiffs assert that this subpoena was untimely, given that it was served on Billotto

on February 19, 2024—four days after the close of discovery on February 15, 2024—and

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SkyWest that Budd’s counsel would represent Billotto for the limited purpose of responding

to SkyWest’s subpoena and then produced approximately 64 pages of text messages between

Billotto and Budd relating to the events in the case. Plaintiffs did not produce a privilege log

for Request for Production No. 14, but they did provide supplemental responses to the

Request that pointed SkyWest to “any documents produced by Mr. Billotto” as the only

responsive documents not subject to the spousal privilege or to the EEOC’s prior scope and

relevance objections.

To date, SkyWest has conducted 10 depositions in this case, including those of Budd

and Billotto.

SkyWest now moves for leave to redepose Budd and Billotto. Plaintiffs oppose the

motion, asking the court to deny the motion in its entirety or, in the alternative, to limit the

depositions both in time and in scope so that SkyWest is permitted to ask only “questions that

could not have been asked in either initial deposition due to unavailable information.” Ps.

Br. (ECF No. 81) at 14. The court is deciding the motion on the briefs, without oral

argument.

II

“A party must obtain leave of court” to conduct a deposition when that deposition

“would result in more than 10 depositions being taken” by the party or when “the deponent

has already been deposed in the case.” Fed. R. Civ. P. 30(a)(2)(A)(i)-(ii). The court “must

maintain that Billotto’s production was therefore voluntary. The parties do not specify the

date on which SkyWest requested the privilege log.

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grant leave to the extent consistent with Rule 26(b)(1) and (2).” Rule 30(a)(2). Under Rule

26(b)(1),

[p]arties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and

proportional to the needs of the case, considering the importance

of the issues at stake in the action, the amount in controversy,

the parties’ relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the

issues, and whether the burden or expense of the proposed

discovery outweighs its likely benefit.

Rule 26(b)(1). And under Rule 26(b)(2)(C), the court must limit discovery when it

determines that:

(i) the discovery sought is unreasonably cumulative or

duplicative, or can be obtained from some other source that is

more convenient, less burdensome, or less expensive; (ii) the

party seeking discovery has had ample opportunity to obtain the

information by discovery in the action; or (iii) the proposed

discovery is outside the scope permitted by Rule 26(b)(1).

Rule 26(b)(2)(C).

District courts in the Fifth Circuit “have applied a good cause standard when deciding

a motion to retake a deposition,” and they usually place the burden on the movant to establish

good cause for the deposition. See Chrastecky v. C. R. Bard, Inc., 2021 WL 2232013, at *2

(W.D. Tex. May 14, 2021) (citing Kleppinger v. Tex. Dep’t of Transp., 283 F.R.D. 330, 333

(S.D. Tex. 2012)); see, e.g., Michael G. Stag, LLC v. Stuart H. Smith, LLC, 2021 WL

3809077, at *3 (E.D. La. Aug. 26, 2021); Heller Healthcare Fin., Inc. v. Boyes, 2002 WL

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1558337, at *1 (N.D. Tex. July 15, 2002) (Fitzwater, J.).3

 This good cause requirement is

rooted in the language of Rule 26(b): essentially, to establish good cause, the movant must

demonstrate that the discovery is consistent with Rule 26(b)(1) and (2).4

Courts have typically found good cause to “reopen[] a deposition ‘where a witness

was inhibited from providing full information at the first deposition’ or ‘where new

information comes to light triggering questions that the discovering party would not have

thought to ask at the first deposition.’” Kleppinger, 283 F.R.D. at 333 (quoting Keck v.

Union Bank of Switz., 1997 WL 411931, at *1 (S.D.N.Y. July 22, 1997)). “Courts have

found ‘new information,’ justifying the reopening [of] a deposition, where (1) new parties

were added to the case, (2) new allegations were made in the pleadings, and (3) new

3

Other courts have placed the burden on the party opposing the deposition to

“demonstrate good cause why [it] should not be taken,” on the principle that “leave to

conduct a second deposition should ordinarily be granted.” Jade Trading, LLC v. United

States, 64 Fed. Cl. 85, 86 (2005) (citation omitted); see Judicial Watch, Inc. v. U.S. Dep’t of

Com., 34 F.Supp.2d 47, 54 (D.D.C. 1998). Some courts have even eschewed a good cause

requirement entirely, on the theory that such a requirement “would involve disregard of Rule

30(a)(2)(A)(ii) when its terms mandate leave for a second deposition.” Clark v. Penn Square

Mall Ltd. P’ship, 2013 WL 139778, at *1 (W.D. Okla. Jan. 10, 2013). Butso far asthis court

is aware, the practice among district courts in this circuit is to require the movant to show

good cause under Rule 26(b). The Fifth Circuit has not addressed this issue.

4

The Fifth Circuit has also adhered to a good cause standard for other discoveryrelated issues, such as in deciding whether to modify the scheduling order under Rule

16(b)(4), see Reliance Ins. Co. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997),

or in considering whether to extend a party’s time to respond to interrogatories, see

Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). In those instances, the Fifth

Circuit has used a four-factor test to determine whether good cause exists: (1) the explanation

for the movant’s failure to timely take the action in question; (2) the importance of the

request; (3) the potential prejudice in granting the request; and (4) the availability of a

continuance to cure such prejudice. See Reliance Ins. Co., 110 F.3d at 257. 

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documents were produced.” Id. at 333 n.4 (quoting Keck, 1997 WL 411931, at *1). 

“[W]here the deposition is reopened because of newly discovered information, the

questioning of the witness is limited to those questions relating to the newly produced

information.” Id. at 333 (citation omitted) (alteration in original); see Martin v. Fid. Nat’l

Title Ins. Co., 2011 WL 3349843, at *4 (E.D. La. Aug. 3, 2011) (citations omitted).

If, on the other hand, the information the movant seeks could have been obtained at

the prior deposition or could be gathered by less burdensome means, the movant may not be

entitled to conduct an additional deposition. See, e.g., Lowery v. Noble Drilling Corp., 1997

WL 675328, at *1 (E.D. La. Oct. 29, 1997); Karr v. Four Seasons Mar., Ltd., 2004 WL

797728, at *6 (E.D. La. Apr. 12, 2004). Similarly, a lack of diligence in obtaining

information before the initial deposition can result in denial of leave to conduct an additional

deposition. Klappinger, 283 F.R.D. at 333 (citation omitted); MC Trilogy Tex., LLC v. City

of Heath, Tex., 2024 WL 346512, at *11 (N.D. Tex. Jan. 29, 2024) (Fitzwater, J.). The court

should not reopen a deposition unless the new information makes the deponent’s initial

deposition testimony “incomplete or useless,” “alter[ing] [it] in such a way as to directly

contradict [the deponent’s] prior testimony as to warrant further cross-examination.” 

Benavidez v. Oil Patch Grp., Inc., 2022 WL 2912592, at *4 (W.D. Tex. Mar. 11, 2022)

(citing Innovative Mktg. & Tech., LLC v. Norm Thompson Outfitters, Inc., 171 F.R.D. 203,

205 (W.D. Tex. 1997); Allen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 341

(S.D.N.Y. 1970)).

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III

SkyWest moves for leave to depose Budd and Billotto despite the fact that they have

already been deposed and that SkyWest has already conducted 10 depositions in the case. 

SkyWest contends that there is good cause for these depositions because: (1) “there was an

apparent change in Ms. Budd’s stance on the spousal communications privilege at the

deposition of Mr. Billotto . . . that differed from the stance previously taken in response to

written discovery”; (2) “SkyWest received new information through the production of text

communications between Ms. Budd and Mr. Billotto in response to both its subpoena for

documents to Mr. Billotto and Ms. Budd’s supplemental responses to SkyWest’s written

discovery requests on March 4, 2024”; and (3) it has been over one year since Budd’s

deposition, and SkyWest wishes to question her regarding her updated medical records and

state of health since that time. D. Br. (ECF No. 77) at 7, 9-10.

The court holds that SkyWest has not demonstrated good cause to conduct these

depositions. First, SkyWest has already had “ample opportunity” to obtain the information

it seeks. See Rule 26(b)(2)(ii). The record shows that the information SkyWest seeks from

Budd and Billotto could have been gathered—and, to an extent, was gathered—at the time

of their initial depositions. SkyWest maintains that it refrained from asking Budd questions

at her deposition related to her communications with Billotto due to its belief that plaintiffs

were asserting a blanket spousal communication privilege, meaning that it allegedly had

received only “edited” testimony from Budd on certain topics that “excluded references to

communications with Mr. Billotto.” D. Br. (ECF No. 77) at 8. But in her deposition, Budd

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repeatedly referenced conversations she had had with Billotto related to her claims and

defenses in this case. Plaintiffs did not object to this testimony on the basis of the privilege,

and SkyWest did not seek to clarify the scope of plaintiffs’ intended use of the privilege in

light of this testimony. Nor did SkyWest ask any follow-up questions of Budd about her

conversations with Billotto. Because a waiver of privilege may occur when a party provides

information about privileged communications during testimony or a deposition, see Nguyen

v. Excel Corp., 197 F.3d 200, 206 (5th Cir. 1999), the fact that plaintiffs’ counsel allowed

Budd to testify about conversations with her husband, without objection, should have

indicated to SkyWest the necessity of clarifying the intended scope of plaintiffs’ invocation

of the privilege or of inquiring whether plaintiffs were waiving the privilege, in whole or in

part.5

Moreover, SkyWest could have subpoenaed Billotto before his initial deposition for

the purpose of conducting more informed questioning, but it did not do so. Although

SkyWest does not state why it failed to do so, particularly given that it subpoenaed text

messages from all other nonparty witnesses before their depositions, this failure was

presumably because SkyWest assumed that the spousal communication privilege applied to

any documents Billotto possessed. Had SkyWest sought to clarify the scope of plaintiffs’

intended use of the privilege before Billotto’s deposition, it could have had access to these

text messages in time to question Billotto about them at his deposition. Regardless, Billotto

5

Nguyen specifically addresses waiver of the attorney-client privilege, not the spousal

communication privilege, but the principle it discusses may be extended to this context.

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testified extensively at his deposition about conversations he had had with Budd related to

the case. Plaintiffs’ counsel never objected to any of his testimony on the basis of the

privilege. And, plaintiffs point out, SkyWest waited over two weeks after Billotto’s

deposition—and four days after the discovery deadline—to serve the subpoena. All of these

facts point to the conclusion that SkyWest lacked proper diligence in clarifying the scope of

plaintiffs’ intended invocation of the privilege prior to Billotto’s deposition. See Klappinger,

283 F.R.D. at 333.

Second, SkyWest appears to seek information that is “unreasonably cumulative or

duplicative” of discovery that it has already obtained. Rule 26(b)(2)(i). SkyWest has not

identified any portion of the text messages produced by Billotto that contradicts evidence

already in the record, nor any portion of the text messages that has indicated that Budd’s or

Billotto’s prior deposition testimony is “incomplete or useless.” Benavidez, 2022 WL

2912592, at *4. Rather, the text messages simply corroborate Budd’s and Billotto’s prior

testimony and document production. Furthermore, nothing contained in the text messages

indicates that Budd or Billotto would substantially add to their earlier testimony were they

to be deposed again.

Third, the information SkyWest seeks from Budd about her updated medical records

and state of health can be gathered by “more convenient, less burdensome, or less expensive”

means. Rule 26(b)(2)(i). Budd testified in her initial deposition about her migraines. And

since the time SkyWest filed this motion, plaintiffs have produced a signed HIPPA release

form permitting SkyWest to request records from the medical provider who has treated

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Budd’s migraines since her initial deposition. It therefore appears that SkyWest can obtain

this information directly from her medical provider, obviating the need to subject Budd to

another deposition.

The court concludes that the “burden or expense of the proposed discovery outweighs

its likely benefit.” Rule 26(b)(1). Because granting SkyWest leave to conduct the requested

depositions of Budd and Billotto would be inconsistent with Rule 26(b)(1) and (2), the court

holds that SkyWest is not entitled to conduct these depositions.

* * *

For the reasons explained, the court denies SkyWest’s motion.

SO ORDERED.

May 2, 2024.

_________________________________

SIDNEY A. FITZWATER

SENIOR JUDGE

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