1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION

WILSON J. CAMPBELL,

 Plaintiff,

v.

SEDGWICK DETERT, MORAN & 

ARNOLD, MICHAEL TANENBAUM, 

JAMES KEALE, THOMAS ROBERTSON, 

et al.,

 Defendants.

Civil No. 11-642-ES-SCM

OPINION AND ORDER ON 

PLAINTIFF’S MOTIONS FOR LEAVE 

TO AMEND AND DEFENDANTS’ 

MOTIONS FOR A PROTECTIVE ORDER 

AND SANCTIONS

[D.E. 53, 59, 65]

I. INTRODUCTION

Pending before this Court are three motions: A motion for 

a protective order [D.E. 53] and motion for sanctions [D.E. 59] 

filed by defendants James Keale, Thomas Robertson, Sedgwick 

Detert, Moran & Arnold (hereafter, “Sedgwick” ), and Michael 

Tanenbaum (collectively, “Defendants”); and plaintiff Wilson 

Campbell’s (“Plaintiff”) motion for leave to file an amended 

complaint [D.E. 65]. Opposition has been filed with regard to

each of the motions. The Court has considered the parties’ 

submissions pursuant to Federal Rule of Civil Procedure 78(b), 

and for the reasons set forth below the Court grants in part and 

denies in part Defendants’ motion for a protective order, denies 

Defendants’ motion for sanctions, and grants in part and denies

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 1 of 43 PageID: 1224
2

in part Plaintiff’s motion for leave to file his Amended 

Complaint.

II. BACKGROUND

A detailed history of the events underlying this action can

already be found in Magistrate Judge Waldor’s July 2, 2012, 

Opinion regarding Plaintiff’s first motion for leave to file an 

amended complaint [D.E. 44]. (See D.E. 60, Judge Waldor’s July 

2, 2012, Opinion). Presently, Plaintiff seeks to make the 

following amendments to his Complaint: Add two individuals, 

Michael McGeehon and David Saunders, as named defendants; add a 

breach of contract claim; and clarify and insert additional 

factual allegations. Judge Waldor denied Plaintiff’s first 

motion requesting identical amendments to the Complaint without 

prejudice, finding that Plaintiff did not provide a reason for 

his delay in seeking to add Saunders and McGeehon as defendants, 

did not fully develop his factual allegations against Saunders, 

and did not properly plead a claim for breach of contract. Id. 

Judge Waldor then directed Plaintiff to file an appropriate 

motion to amend within fourteen days of the entry of the Opinion 

and Order. Id.

Plaintiff filed the instant motion to amend on July 17, 

2012. Plaintiff alleges that the instant motion to amend 

addresses the defects noted in Judge Waldor’s July 2, 2012, 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 2 of 43 PageID: 1225
3

Opinion, and satisfies the requirements set forth in the Federal 

Rules of Civil Procedure regarding motions to amend the 

pleadings. (See D.E. 65, Plaintiff’s Brief in Support of Motion 

to Amend). Defendants oppose Plaintiff’s motion, and argue that 

the instant motion is still deficient for all of the reasons set 

forth in the July 2, 2012, Opinion. (See D.E. 68, Defendants’ 

Brief in Opposition to Plaintiff’s Motion to Amend).

Discovery in this case has been ongoing since September of 

2011, and has been plagued with various disputes since then. 

(See, e.g., Docket Entry Nos. 20, 25, 26, 31, 32, 33, 34). 

Defendants allege that Plaintiff is using the discovery process 

to harass and overburden Defendants, and have filed the instant 

motion for a protective order as a result. (See D.E. 53-1, 

Defendants’ Brief in Support of Motion for Protective Order). 

Defendants assert that they have already provided “72 answers to 

interrogatories, 94 responses to document requests and 205 

responses to requests to admit,” but that Plaintiff has 

nevertheless served an additional 98 requests, consisting of 

interrogatories, document demands, requests for admissions, and 

a notice to inspect the premises of Sedgwick. (See D.E. 58, 

Defendants’ Reply Brief in Support of Motion for Protective 

Order, at *2). Defendants allege that the requested discovery 

is, inter alia, cumulative, unduly burdensome, and irrelevant. 

Id. Plaintiff opposes the motion for a protective order, and 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 3 of 43 PageID: 1226
4

contends that his discovery requests are relevant and not unduly 

burdensome or cumulative. (See D.E. 55, Plaintiff’s Brief in 

Opposition). Additionally, Plaintiff asserts that discovery in 

this matter only effectively began on January 9, 2012, when the 

Court ordered Defendants to produce discovery, and was then 

stalled in May of 2012 when Defendants filed the instant motion. 

Id. at *2.

Finally, Defendants have also filed a motion for sanctions 

pursuant to Federal Rule of Civil Procedure 16. (See D.E. 59, 

Defendants’ Motion for Sanctions). The basis for Defendants’ 

motion is Plaintiff’s failure to appear for a court-ordered, inperson hearing on June 15, 2012. (See D.E. 59-1, Defendants’ 

Brief in Support of Motion for Sanctions). Plaintiff opposes 

the motion for sanctions, and asserts that his failure to attend 

the hearing was the result of his own scheduling mistake and 

that sanctions are not appropriate. (See D.E. 66, Plaintiff’s 

Letter Brief in Opposition). 

III. DISCUSSION

In the interest of clarity, the Court will address each of 

the pending motions separately.

A. Plaintiff’s Motion to Amend

Pursuant to Federal Rule of Civil Procedure 15(a)(2), “the 

court should freely give leave to amend when justice so 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 4 of 43 PageID: 1227
5

requires.” While leave to amend is typically granted, it is not 

an absolute right and the decision to amend rests within the 

sound discretion of the district court. Foman v. Davis, 371 

U.S. 178, 182 (1962). Courts liberally grant motions to amend 

if the underlying facts or circumstances relied upon may be a 

proper subject for relief, granting the amendment would not be 

unduly prejudicial to the non-moving party, and the movant has 

not acted with undue delay, bad faith, or dilatory motive. Id. 

An amendment may only be granted if it is not futile, and the 

opposing party bears the burden of establishing that a proposed 

amendment should be denied. Id. 

Plaintiff seeks to amend his Complaint as follows: to add 

Michael McGeehon, Sedwick's General Counsel, and David Saunders, 

Sedgwick's Chief of Human Resources, as named defendants; add a 

claim for breach of contract; and “clarify allegations raised in 

Plaintiff’s Complaint and assert additional factual allegations 

based on facts uncovered during discovery.” (See D.E. 65, 

Plaintiff’s Brief in Support of Motion to Amend, at *2).

First, the Court will address the proposed McGeehon 

amendment. An amendment is futile if it fails to state a claim 

upon which relief may be granted or advances a claim that is 

legally insufficient on its face. See Great Western Mining & 

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 

2010)(citing In re Merck & Co. Sec., Derivative, & ERISA Litig., 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 5 of 43 PageID: 1228
6

493 F.3d 400 (3d Cir. 2007)). “In assessing futility, the 

district court applies the same standard of legal sufficiency as 

applies under Rule 12(b)(6).” In re Burlington Coat Factory 

Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Accordingly, 

an amendment is futile if, accepting all of the facts alleged in 

the pleading as true, the party has failed to plead enough facts 

to state a claim to relief that is plausible on its face. See

Duran v. Equifirst Corp., Civil No. 09-03856, 2010 WL 918444, at 

*2 (D.N.J. Mar. 12, 2010) (citing Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007)). Accordingly, this Court must 

first consider whether Plaintiff has alleged sufficient facts to 

conclude that McGeehon provided substantial assistance or 

encouragement of the employer’s conduct alleged to be in 

violation of the New Jersey Law Against Discrimination 

(“NJLAD”). See id.

Here, Plaintiff alleges that McGeehon had knowledge of 

Plaintiff’s August 14, 2008, and September 2008, internal 

complaints regarding alleged discrimination, and that McGeehon 

and the named Defendants participated in a plot to retaliate 

against Plaintiff. (See D.E. 65-3, Plaintiff’s Proposed Amended 

Complaint, at ¶¶ 37, 44, 69-86). Plaintiff also alleges that 

discovery produced in January of 2012 indicates that Defendant 

Robertson had a privileged discussion with McGeehon and Saunders 

on February 4, 2009, after Robertson learned of the judicial 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 6 of 43 PageID: 1229
7

complaint filed against Plaintiff, and that more than ten emails between McGeehon and Robertson regarding Plaintiff's 

termination were exchanged on the morning of February 5, 2009, 

the day that Plaintiff was allegedly forced to resign from 

Sedgwick. See id. at *6-7. The Court notes that in the July 

2, 2012, Opinion Judge Waldor, before describing McGeehon’s 

alleged role in the lawsuit, noted that “Plaintiff has alleged 

several facts that, taken as true, indicate McGeehon played a 

significant role in Plaintiff's termination.” (See D.E. 60, 

July 2, 2012 Opinion, at *11). Judge Waldor concluded her 

evaluation of futility with regard to the McGeehon amendment by 

finding that the allegations in the proposed amended Complaint 

against McGeehon in his individual capacity, taken as true, 

“would likely not be futile.” Id. This Court agrees. 

Accordingly, the Court finds that the proposed claims against 

McGeehon in his individual capacity are not futile. See Foman 

v. Davis, 371 U.S. at 182.

With regard to the timeliness of the proposed amendment to 

add McGeehon as a named defendant, the Court notes that 

Plaintiff appears to have had some knowledge of McGeehon's 

involvement in Plaintiff's termination at the time the original 

Complaint was filed. Indeed, Judge Waldor stated in the July 2, 

2012, Opinion that Plaintiff must provide some explanation as to 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 7 of 43 PageID: 1230
8

why McGeehon could not have been added earlier in this action. 

(See D.E. 60, July 2, 2012, Opinion, at *8). 

Plaintiff alleges that his delay in requesting leave to 

amend the Complaint to add both Saunders and McGeehon stems from 

his obtaining a privilege log through discovery in January of 

2012 that allegedly shows that McGeehon “authored and sent an email on February 4, 2009 entitled 'Associate Termination' to 

Saunders with a copy to Defendant Tanenbaum, Sedgwick's Chair.” 

(See D.E. 65, Plaintiff's Brief in Support of Motion to Amend, 

at *6). Plaintiff contends that he did not have access to the 

various e-mails listed on the privilege log that allegedly show 

McGeehon's and Saunders's involvement in Plaintiff's 

termination, and that Plaintiff was not aware of said emails

when he filed his Complaint in February of 2011. See id. at *6-

8. Accordingly, Plaintiff argues that he did not know the 

extent of both McGeehon's and Saunders’s involvement in his 

termination when he filed his initial Complaint, and therefore 

his instant motion to amend is timely and in good faith. Id. at 

*7. 

Defendants argue that Plaintiff's delay in seeking leave to 

amend the Complaint is undue and should accordingly be denied. 

Specifically, Defendants allege that, by letter dated June 5, 

2009, Plaintiff's former counsel contended that Plaintiff 

participated in a conference call with McGeehon, Sedgwick's 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 8 of 43 PageID: 1231
9

general counsel, regarding his resignation from Sedgwick. (See

D.E. 68, Defendants' Brief in Opposition, at *13). In reply, 

Plaintiff reiterates that it was not until January of 2012 that 

he learned that McGeehon had an “active role” in the 

termination, and was not merely a “mouthpiece,” and therefore 

his delay in seeking leave to amend is not undue. (See D.E. 69, 

Plaintiff's Reply Brief, at *1-2, D.E.). 

In light of all of the above, the Court finds that 

Plaintiff's explanation for his delay in seeking to add McGeehon 

is sufficient. See Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 

2001) (stating that courts, in considering the question of undue

delay, “focus on the movant’s reasons for not amending sooner”). 

“The passage of time, without more, does not require that a 

motion to amend a complaint be denied[...].” Adams v. Gould, 

Inc., 739 F.2d 858, 868 (3d Cir. 1984). Considering that 

Plaintiff alleges to not have learned of the extent of 

McGeehon's involvement in discussions regarding his termination 

until receiving discovery in January of 2009, the Court, in its 

discretion, does not consider Plaintiff's delay in adding 

McGeehon as a named defendant to be undue. See Cureton v. NCAA, 

252 F.3d at 273; Luppino v. Mercedes-Benz USA, LLC, Civil No. 

09-5582, 2012 WL 850743, at *4 (D.N.J. Mar. 8, 2012) (granting 

motion to amend where Plaintiff could have named defendants 

months earlier). Furthermore, the Court finds that the addition 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 9 of 43 PageID: 1232
10

of McGeehon will not cause undue prejudice, as much of the same 

discovery that has already been produced in this case or is the 

subject of currently pending discovery disputes should also 

apply to McGeehon. See Adams v. Gould, 739 F.2d 858, 868 (3d 

Cir. 2001) (stating that amended claims are not likely to cause 

prejudice to opposing party where addition of new claims will 

not require additional, extensive discovery).

Next, the Court will address Plaintiff’s request to add 

Saunders as a named defendant. Plaintiff’s Proposed Amended 

Complaint alleges that Saunders received an email from McGeehon 

regarding Plaintiff’s termination from the Firm. (See D.E. 65-

3, Proposed Amended Complaint, at *14, ¶70). The e-mail was 

allegedly sent to Saunders on February 4, 2009, one day before 

Defendant Robertson allegedly informed Plaintiff that he would 

be fired from the firm if he did not immediately resign. (See 

id.; see also D.E. 65, Plaintiff’s Brief in Support of Motion to 

Amend, at *6). Plaintiff further alleges that on February 5, 

2009, the Firm’s Human Resources, of which Saunders is Chief, 

instructed Defendant Robertson to take Plaintiff’s building 

access card. Id.

Defendants argue that the proposed amendment to add 

Saunders is futile, and that Plaintiff's motion should 

accordingly be denied. A pleading is futile if the facts 

alleged would not allow a court to draw a reasonable inference 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 10 of 43 PageID: 1233
11

that the defendant is liable for the alleged misconduct. See 

Ashcroft v. Iqbal, 556 U.S. 662, at 678 (2009). In the instant 

matter, Plaintiff seeks to amend his Complaint to add claims 

against Saunders in his individual capacity.

After considering the parties’ submissions, the Court finds 

that Plaintiff’s Proposed Amended Complaint does not support a 

claim of individual liability as to Saunders under NJ LAD. 

Pursuant to N.J.S.A. 10:5-12(e), a plaintiff must allege 

sufficient facts to conclude that Saunders provided “substantial 

assistance or encouragement” of the employer’s conduct alleged 

to be in violation of NJ LAD. Here, the Proposed Amended 

Complaint merely alleges that Saunders received an email 

entitled “Associate Termination” from McGeehon, participated in 

discussions with McGeehon and Robertson regarding the judicial 

complaint filed against Plaintiff, and instructed Defendant 

Robertson to collect Plaintiff’s building access card. Such 

facts illustrate that Saunders, as Chief of Human Resources, 

likely had knowledge of Plaintiff’s termination and was involved 

to some degree in finalizing Plaintiff’s departure from the 

firm. The Court finds that these facts do not support the 

contention that Saunders provided “substantial assistance or 

encouragement” of the misconduct alleged in the proposed amended 

Complaint within the meaning of NJ LAD. See Failla v. City of 

Passaic, 146 F.3d 149, 158-59 (3d Cir. 1998). Rather, the Court 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 11 of 43 PageID: 1234
12

finds that receiving emails regarding the termination of an 

employee and providing instructions to collect said employee's 

building access card are consistent with the customary duties 

and protocols intrinsic to Saunders’s role as a human resources 

director. Accordingly, the Court finds the proposed Amended 

Complaint to be futile as to the addition of Saunders.

The Court will next turn to Plaintiff’s proposed breach of 

contract amendment. Plaintiff's argument regarding the proposed 

breach of contact claim revolves around Sedgwick's Employee 

Assistance Program (“EAP”), a benefit program allegedly 

available to Sedgwick employees that is designed to assist with 

personal issues, including legal assistance. (See D.E. 65, 

Plaintiff’s Brief in Support of Motion to Amend, at *9-10). 

Plaintiff claims that when Defendants terminated Plaintiff he 

was denied benefits to which he was entitled pursuant to the 

EAP, and as a result incurred damages, including attorney's fees 

for legal consultations that would have normally been covered by 

the EAP. Id. 

Defendants argue that Plaintiff has failed to state a cause 

of action for breach of contract, as Plaintiff has not 

explicitly claimed that the parties entered into a contract 

regarding the EAP. (See D.E. 68, Defendants’ Brief in 

Opposition, at *19). Instead, Defendants assert that Plaintiff 

has merely alleged that he was afforded certain benefits under 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 12 of 43 PageID: 1235
13

the EAP as part of his employment package, and that Sedgwick 

ceased to provide those benefits to Defendant after Plaintiff’s 

departure from the firm. Id. Defendants argue that Plaintiff 

has not alleged “that Defendants failed to provide him a benefit 

to which he was entitled while employed by Sedgwick, nor does 

Plaintiff allege that the Firm agreed to continue to provide him 

EAP benefits after his separation of employment,” and that any 

obligation Sedgwick may have had to provide Plaintiff with EAP 

benefits ceased with the termination of his employment at the 

firm. Id. Defendants further argue that Plaintiff has not 

alleged that any of the individual defendants were a party to 

any contract or implied contract between himself and Sedgwick. 

Id.

A party alleging a breach of contract satisfies its 

pleading requirement if it alleges: (1) a contract; (2) a breach 

of that contract; (3) damages flowing therefrom; and (4) that 

the party performed its own contractual duties. Video Pipeline, 

Inc. v. Buena Vista Home Entertainment, Inc., 210 F. Supp. 2d 

552, at 561 (D.N.J. 2002). Here, Plaintiff essentially alleges 

that: (1) the EAP benefits were part of his employment contract 

with Sedgwick; (2) Sedgwick breached its obligations to 

Plaintiff regarding the EAP benefits; (3) Plaintiff suffered 

damages as a result of Sedgwick’s breach; and (4) Plaintiff 

performed all of his own contractual duties until he was 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 13 of 43 PageID: 1236
14

wrongfully terminated. (See D.E. 65, Plaintiff’s Brief in 

Support of Motion to Amend, at *9-10). The Court, bearing in 

mind the liberal approach to pleadings embodied by Rule 15, 

finds that Plaintiff has sufficiently pled a claim for breach of 

contract. See Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d 

Cir. 2006); Foman v. Davis, 371 U.S. at 182. Accordingly, 

Plaintiff’s proposed amendment to add a claim for breach of 

contract is granted as to Defendant Sedgwick.

As to the individually named Defendants, it is well 

established that a claim for breach of contract cannot be 

maintained against an individual that is not a party to the 

underlying contract. Figueroa v. City of Camden, 580 F.Supp.2d 

390, 408 (D.N.J. 2008). Here, Plaintiff has not alleged facts 

that support the existence of a contract between himself and the 

individually named Defendants. See id. (dismissing common law 

action for breach of contract where plaintiff firefighter did 

not allege individual defendant was a party to the contract 

between city and its firefighters). Accordingly, the proposed 

breach of contract claim against the individual Defendants fails 

to state a claim upon which relief may be granted and therefore 

must be denied. See id. 

Next, the Court will address the factual allegations that 

Plaintiff seeks to add to his Complaint. Defendants assert that 

many of the amended factual allegations appear to be immaterial 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 14 of 43 PageID: 1237
15

to Plaintiff's claims, redundant, or merely summarize discovery 

that has been conducted to date. (See D.E. 68, Defendants’ 

Brief in Opposition, at *22). Plaintiff counters that the 

instant motion for leave to file a proposed amended complaint 

was prompted by new information found in discovery, and 

essentially argues that the added and amended factual 

allegations clarify his original pleading. (See D.E. 65, 

Plaintiff’s Brief in Support of Motion to Amend). The Court has 

reviewed Plaintiff’s amended factual allegations and does not 

find the proposed amendments to be at odds with Rule 15. As 

noted above, leave to amend is freely given when justice so 

requires, and courts “have shown a strong liberality ... in 

allowing amendments under Rule 15(a).” Bechtel v. Robinson, 886 

F.2d 644, 652 (3d Cir. 1989) (internal citations omitted); see 

also Foman v. Davis, 371 U.S. at 182. The Court will 

accordingly grant Plaintiff’s motion to amend as to the proposed 

factual allegations. 

Finally, the Court will briefly address Defendants' statute 

of limitations argument with respect to the proposed 

individually named defendants. Defendants note that NJ LAD is 

governed by a two year statute of limitations, and argue that 

since Plaintiff alleges that he was wrongfully terminated on 

February 5, 2009, the applicable statute of limitations on 

Plaintiff’s retaliation and discrimination claims under NJ LAD 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 15 of 43 PageID: 1238
16

expired on February 5, 2011. (See D.E. 68, Defendants’ Brief in 

Opposition, at *22-23). Thus, Defendants argue that Plaintiff’s 

proposed NJ LAD claims against McGeehon are barred by the 

statute of limitations, and are therefore futile unless they

relate back to the original complaint in accordance with Federal 

Rule of Civil Procedure 15(c). Id. at 23. Defendants assert 

that the proposed McGeehon amendment does not relate back to 

Plaintiff’s original Complaint, as the claims against McGeehon 

do not arise out of the conduct that is set forth in the 

original pleading. Id. at *24. 

Three conditions must be met for the successful relation 

back of an amended complaint that adds new parties: (1) the 

additional claim arose out of the same conduct as the original 

pleading; (2) the newly named party received such notice of the 

institution of the action within 120 days of the complaint so 

that the party will not be prejudiced in maintaining a defense 

on the merits; and (3) the newly named party must have known or 

should have known within 120 days that, but for a mistake made 

by the plaintiff concerning the newly named party’s identity, 

the action would have been brought against the newly named party 

in the initial pleading. Singletary v. Pennsylvania Dept. of 

Corrections, 266 F.3d 186, 189 (3d Cir. 2001) (internal 

quotations and citations omitted). The first condition is met 

in this action because it is clear that the claims against 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 16 of 43 PageID: 1239
17

McGeehon arise out of the same conduct alleged in the original 

pleading, namely the alleged wrongful termination of Plaintiff. 

It is also clear that the second condition is met, as McGeehon 

had both actual notice of the instant lawsuit and sufficient 

notice of the action under Rule 15(c)(3) by virtue of sharing 

counsel with the other individually named Sedgwick Defendants. 

See Singletary, 266 F.3d at 196-98. Finally, the third 

condition for relation back is also met in this matter, as 

Plaintiff has plausibly argued that he was only learned during 

discovery that McGeehon may have had an active role in 

Plaintiff’s alleged termination, rather than the role of a mere 

“mouthpiece.” (See D.E. 69, Plaintiff’s Reply Brief, at *1-2). 

Accordingly, the Court finds that the McGeehon amendment relates 

back to the initial filing and is not barred by the statute of 

limitations. See Singletary, 266 F.3d at 196-98. 

B. Defendants' Motion for a Protective Order

Next, the Court will consider Defendants' motion for a 

protective order. Defendants contend that there exists a good 

faith need for a protective order regarding Plaintiff's 

discovery requests, as Plaintiff's requests are voluminous, 

unduly burdensome, and harassing. (See D.E. 53-1, Defendants 

Brief in Support of Motion, at *6-7). Specifically, Defendants 

seek a protective order: prohibiting Plaintiff from serving 

additional discovery; permitting Defendants to not be required 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 17 of 43 PageID: 1240
18

to respond to Plaintiff’s Third Request for Admissions; 

permitting Defendants to not be required to respond to 

Plaintiff’s Second Set of Interrogatories to Defendant Sedgwick; 

permitting Defendants to not be required to respond to 

Plaintiff’s Fourth Request for Admissions; permitting Defendants 

to not be required to respond to Plaintiff’s Third Request for 

Documents; permitting Defendants to not be required to respond 

to document requests attached to the notices to depose James 

Keale, Thomas Robertson, Michael Tanenbaum, Suzanne Horn, David 

Saunders, and Craig Barnes; and ordering that the depositions of 

Craig Barnes and David Saunders be conducted in California. 

(See D.E. 53-6, Defendants’ Proposed Order).

Pursuant to Federal Rule of Civil Procedure 26(b), a court 

may order the discovery of any matter relevant to a party’s 

claims, defenses, or the subject matter involved in the 

litigation upon a finding of good cause. Rule 26 is construed 

liberally, and relevance is a broader inquiry at the discovery 

stage of litigation than at the trial stage. Tele-Radio Sys. 

Ltd. v. DeForest Elecs., Inc., 92 F.R.D. 371, 375 (D.N.J. 1981) 

(citations omitted). While relevant information need not be 

admissible at trial, the party seeking discovery must “show that 

the information sought is relevant to the subject matter of the 

action and may lead to admissible evidence.” Caver v. City of 

Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000). 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 18 of 43 PageID: 1241
19

While Rule 26 is generally construed liberally, courts have 

authority to limit a party's pursuit of information that would 

otherwise be discoverable where the burden of a discovery 

request is likely to outweigh the benefits. See Fed. R. Civ. P.

26(b)(2)(C); see also Bayer AG v. Betachem, Inc., 173 F.3d 191 

(3d Cir. 1999). Accordingly, a discovery request may be denied 

if the court determines that there exists a likelihood that the 

resulting benefits would be outweighed by the burden or expenses 

imposed as a consequence of the discovery after assessing the 

following factors: (1) the unreasonably cumulative or 

duplicative effect of the discovery; (ii) whether the party 

seeking discovery has had ample opportunity to obtain the 

information by other discovery; and (iii) the needs of the case, 

the amount in controversy, the parties’ resources, the 

importance of the issues at stake in the action, and the 

importance of the discovery in resolving the issues. Fed. R. 

Civ. P. 26(b)(2)(C). The purpose of this rule of 

proportionality is to guard against redundant or 

disproportionate discovery by giving the court authority to 

reduce the amount of discovery that may be directed to matters 

that are otherwise proper subjects of inquiry. A & B 

Ingredients, Inc. v. Hartford Fire Ins. Co., 2010 WL 335616, at 

*3 (D.N.J. Jan. 29, 2010) (quoting Bowers v. Nat’l Collegiate 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 19 of 43 PageID: 1242
20

Athletic Assoc., No. 97-2600, 2008 LEXIS 14944, at *14 (D.N.J. 

Feb. 27, 2008).

Courts have further authority to limit the scope of 

discovery through the issuance of a protective order pursuant to 

Federal Rule of Civil Procedure 26(c). Pursuant to Rule 26(c), 

upon a finding of good cause, the court may issue a protective 

order to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense. See 

Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1112, fn. 3 (3d 

Cir. 1986), cert. denied, 486 U.S. 976 (1987). Courts are 

afforded broad latitude under Rule 26(c) in tailoring a 

protective order to the circumstances of a particular case, and 

accordingly may issue an order: forbidding the disclosure of 

discovery; specifying terms, including time and place for the 

disclosure of discovery; prescribing a discovery method other 

than the one selected by the party seeking discovery; and

forbidding inquiry into certain matters, or limiting the scope 

of disclosure or discovery to certain matters. See id. In 

seeking a protective order, a party establishes good cause by 

demonstrating that disclosure will cause a clearly defined and 

serious injury. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 

786-87 (3d Cir. 1994). However, broad allegations of harm do 

not support a showing of good cause, so the alleged injury must 

be supported by specific examples and reasons. Id.

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 20 of 43 PageID: 1243
21

In determining whether good cause exists, courts must 

employ a balancing test weighing “the requesting party’s need 

for information against the injury that might result if 

uncontrolled disclosure” is granted. Id. at 787 (internal 

quotations omitted). If the court ultimately finds that 

discovery policies require that the materials be disclosed, the 

issue then becomes whether they should be disclosed in a 

specific way, or whether any limitations of disclosure should be 

ordered. Id. In making this determination, courts consider the 

following factors: (i) whether the information is being sought 

for a legitimate purpose or improper purpose; (ii) whether 

disclosure will promote fairness and efficiency among litigants; 

and (iii) whether a party benefiting from the order is a public 

entity, public official or private litigant and whether the case 

involves matter of legitimate public interest. Id. at 787-88. 

The party requesting the protective order bears the burden of 

establishing an alleged lack of relevancy or undue burden. A & 

B Ingredients, Inc. v. Hartford Fire Ins. Co., 2010 WL 335616, 

at *4 (D.N.J. Jan. 29, 2010).

Defendants assert that good cause exists for the entry of a 

protective order because Plaintiff’s requests are 

“disproportionate to the claims in this matter and will work a 

clearly defined and serious injury upon Defendants.” (See D.E. 

53-1, Defendants’ Brief in Support of Motion, at *11). 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 21 of 43 PageID: 1244
22

Defendants argue that the sheer volume of discovery is unduly 

burdensome, harassing, and oppressive given the nature of the 

claims in this action. Id. In support of their argument 

Defendants assert that, despite having already provided over 300 

responses to discovery requests by Plaintiff, Plaintiff has 

requested an additional 98 requests, most of which are 

cumulative and not reasonably calculated to lead to the 

discovery of admissible evidence. (See D.E. 58, Defendants’ 

Reply Brief, at *2). Defendants argue that Plaintiff’s 

discovery requests relating to the termination of other former 

Sedgwick attorneys is duplicative and not relevant considering 

the circumstances that precipitated Plaintiff’s resignation. 

Id. at *15-17. Defendants further argue that the electronic 

discovery sought by Plaintiff, namely documents and emails for 

the period of January 29, 2009 to May 1, 2009 concerning 

Plaintiff that were received or sent from various Sedgwick 

employees and persons not employed by Sedgwick but working in 

Sedgwick’s New Jersey office with a Sedgwick email account is 

burdensome and overly broad in temporal scope since Plaintiff’s 

last day of employment was February 5, 2009. Id. at *17. 

Likewise, Plaintiff seeks documents and emails sent or received 

from various Sedgwick employees that reference Plaintiff from as 

early as January 1, 2007 to the present, and Defendants argue 

that such requests are also overly broad and burdensome, or have 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 22 of 43 PageID: 1245
23

been previously identified by Defendants and listed on their 

privilege log. Id. at *18. In addition, Defendants note 

various other discovery requests that they contend are overly 

broad, irrelevant, or burdensome, such as, inter alia, 

“documents which reflect paid time off for all employees in the 

Sedgwick New Jersey office from February 2, 2009 to February 6, 

2009,” and “documents that reflect the gross revenues of 

Sedgwick from January 1, 2001 to present.” See id. at *23-24.

Similarly, Defendants argue that Plaintiff’s request to inspect 

the premises of Sedgwick’s New Jersey Office for the purpose of 

“measuring, surveying, videotaping, and photographing his former 

office and the offices of” various Sedgwick employees is 

irrelevant and unsupported by any reasonable basis. Id. at *13-

14. The Court will address each category of the discovery at 

issue in turn.

First, the Court will consider Plaintiff’s Second Set of 

Interrogatories Directed to the Designated Representative of 

Defendant Sedgwick. (See D.E. 53-4, Defendants’ Ex. K to Motion 

for Protective Order, at *62-67). Federal Rule of Civil 

Procedure 33(a)(2) states that “[a]n interrogatory may relate to 

any matter that may be inquired into under Rule 26(b),” and that 

an “interrogatory is not objectionable merely because it asks 

for an opinion or contention that relates to fact or the 

application of law to fact, but the court may order that the 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 23 of 43 PageID: 1246
24

interrogatory need not be answered until designated discovery is 

complete, or until a pretrial conference or some other time.” 

The Court has reviewed Plaintiff’s Second Set of Interrogatories 

directed to Sedgwick and finds that the interrogatories do not 

warrant the entry of a protective order. Plaintiff’s 

interrogatories are, within the liberal meaning of Rule 26, 

relevant to Plaintiff’s claims. However, the Court notes that 

Interrogatory No. 4 is unlimited in temporal scope, and 

accordingly orders that the temporal scope of Interrogatory No. 

4 be limited to a period of five years from February 5, 2004, to 

February 5, 2009. (See D.E. 53-4, Defendants’ Ex. K to Motion 

for Protective Order, at *67). If Defendants have previously 

provided any of the requested information to Plaintiff, or 

object to a particular interrogatory, Defendants are free to 

respond accordingly.

Next, the Court will consider Plaintiff’s Third and Fourth

Requests for Admissions. Federal Rule of Civil Procedure 36 

governs requests for admission, and states that “[a] party may 

serve on any other party a written request to admit, for 

purposes of the pending action only, the truth of any matters 

within the scope of Rule 26(b)(1) relating to: (A) facts, the 

application of law to fact, or opinions about either; and (B) 

the genuineness of any described documents.” Fed. R. Civ. P. 

36(a)(1). The Court has reviewed Plaintiff’s Third Request for 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 24 of 43 PageID: 1247
25

Admissions to Defendants and finds that the requests for 

admission are within the liberal meaning of discovery embodied 

by Rule 26 and do not fall outside the scope of requests for 

admission as defined by Rule 36. (See D.E. 53-4, Defendants’ 

Ex. J to Motion for Protective Order, at *54-60). The Court 

further notes that Plaintiff’s Fourth Request for Admissions 

requests to admit the genuineness of documents and are 

appropriately accompanied by copies of the relevant documents in 

accordance with Fed. R. Civ. P. 36(a)(2). (See D.E. 53-5,

Defendants’ Ex. L to Motion for Protective Order, at *2-5). 

Therefore, the Court will deny Defendants’ motion for a 

protective order with respect to Plaintiff’s Third and Fourth 

Requests for Admissions. Again, to the extent that Defendants 

have previously provided any of the requested information to 

Plaintiff, or object to a particular request, Defendants are 

free to respond accordingly. 

Next, the Court will consider Plaintiff’s Third Document 

Production Demand to Defendants. (See D.E. 53-5, Defendants’ 

Ex. M to Motion for Protective Order, at *25-29). Any party may 

obtain discovery regarding any non-privileged matter that is 

relevant to any party’s claim or defense, and it is well settled 

that Rule 26 establishes a fairly liberal discovery policy. 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); 

Fed. R. Civ. P. 26(b)(1). “As a general rule, discovery is 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 25 of 43 PageID: 1248
26

permitted of any information that is relevant or may lead to the 

discovery of relevant evidence.” Romero v. Allstate Ins. Co., 

271 F.R.D. 96, 101 (E.D. Pa. 2010). Federal Rule of Civil 

Procedure 34 governs the production of documents and reads, in 

pertinent part, as follows:

(a) In General. A party may serve on any other party a 

request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or 

its representative to inspect, copy, test, or 

sample the following items in the responding 

party's possession, custody, or control:

(A) any designated documents or 

electronically stored information--including 

writings, drawings, graphs, charts, 

photographs, sound recordings, images, and 

other data or data compilations--stored in 

any medium from which information can be 

obtained either directly or, if necessary, 

after translation by the responding party 

into a reasonably usable form; or

(B) any designated tangible things; or

(2) to permit entry onto designated land or other 

property possessed or controlled by the responding 

party, so that the requesting party may inspect, 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 26 of 43 PageID: 1249
27

measure, survey, photograph, test, or sample the 

property or any designated object or operation on 

it.

Here, Plaintiff has made twenty six (26) requests for the 

production of documents, and has also requested documents in 

connection with various deposition notices. (See D.E. 53-5,

Defendants’ Ex. M to Motion for Protective Order, at *25-29). 

The Court has reviewed Plaintiff’s Third Document Production 

Demand and notes that Plaintiff’s requests are reasonably 

limited in temporal scope, and reasonably calculated to lead to 

the discovery of admissible evidence. For instance, Request No. 

15 seeks “[a]ll documents and e-mails sent by Deborah Lewis from 

January 1, 2009 to May 1, 2009 that reference Plaintiff.” See 

id. at *27. The Court finds that such requests are relevant to 

Plaintiff’s claims, well within the liberal scope of discovery, 

and sufficiently designate which documents Plaintiff seeks. See 

Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 543-44 

(1908) (“We see no reason why all such books, papers and 

correspondence which related to the subject of inquiry, and were 

described with reasonable detail, should not be called for and 

the company directed to produce them. Otherwise, the State 

would be compelled to designate each particular paper which it 

desired, which presupposes an accurate knowledge of which 

papers, which the tribunal desiring the papers would probably 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 27 of 43 PageID: 1250
28

rarely, if ever, have.”). Accordingly, the Court will deny 

Defendants’ motion for a protective order with respect to 

Plaintiff’s Third Document Production Demand. However, the 

Court notes once again that if Defendants have already provided 

any of the requested information, or object to a particular 

demand, Defendants are free to respond accordingly.

With regard to the various document demands attached to 

Plaintiff’s deposition notices, the Court finds that a number of 

the requests do not appear reasonably calculated to lead to the 

discovery of admissible evidence and warrant the entry of a 

protective order. Specifically, the Court finds that Request 

Nos. 10 and 11 attached to the deposition notice for Suzanne 

Horn [D.E. 53-5, Ex. R, at *52]; and Request Nos. 4, 5, and 7 

attached to the deposition notice for David Saunders [D.E. 53-5, 

Ex. S, at *57] seek financial information from Sedgwick that is 

irrelevant to Plaintiff’s claims. Furthermore, the Court finds 

that Request No. 6 attached to the deposition notice for David 

Saunders is unreasonably broad in temporal and geographic scope. 

See id. That particular request seeks “[a]ll documents that 

reflect the salary of the highest and lowest paid (non-partner) 

attorney employed by the New Jersey office from January 1, 2001 

to present.” Id. Accordingly, the Court orders that the 

request be amended so as to only pertain to attorneys that 

graduated from law school between the years 1998 and 2000, and 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 28 of 43 PageID: 1251
29

to the salaries any such attorneys may have had at the time of 

Plaintiff’s termination.

Next, the Court will address Plaintiff’s Notice of 

Inspection. (See D.E. 53-5, Defendants’ Ex. N to Motion for 

Protective Order, at *31-33). Plaintiff seeks to inspect the 

premises of Sedgwick’s New Jersey office for the purpose of 

“measuring, surveying, videotaping, and photographing his former 

office and the offices of the following employees of Sedgwick: 

James Keale; Thomas Robertson; Michael Tanenbaum; Suzanne Horn, 

Sedgwick’s Office Manager; Shari Keiser, Associate; Christopher 

Kehrli, former Associate; and Kecia Barrett-Callahan.” (See

D.E. 53-1, Defendants’ Brief in Support of Motion for Protective 

Order, at *13). Defendants argue that Plaintiff has not made 

any factual allegations that would provide a basis for his 

Notice of Inspection, and that Plaintiff is seeking the 

inspection “for the sole reason to harass and annoy Defendants.” 

Id. at *14. Plaintiff argues that he intends to inspect, 

photograph, and videotape the Sedgwick New Jersey office in 

order to “aid jurors in their deliberations,” by “presenting the 

jury with photographs showing the location of Plaintiff’s office 

in proximity to several key witnesses,” so as to support his 

claim that he did not voluntarily resign. (See D.E. 55, 

Plaintiff’s Brief in Opposition, at *14). While the Court notes 

that a liberal approach to discovery is generally favored 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 29 of 43 PageID: 1252
30

pursuant to Rule 26, the Court also appreciates Defendants’ 

concerns regarding the potential for harassment and disruption 

with regard to Plaintiff’s Notice of Inspection considering the 

nature of this case. Accordingly, the Court hereby orders that 

Plaintiff’s inspection of Sedgwick’s New Jersey Office be set 

for a time and date to be determined by Defendants, and that 

said inspection shall not exceed sixty minutes. 

Lastly, the Court will consider the depositions of Craig 

Barnes, a partner in Sedgwick’s Los Angeles office, and David 

Saunders, Sedgwick’s Chief of Human Resources Officer located in 

San Francisco. (See D.E. 53-1, Defendants’ Brief in Support of 

Motion for Protective Order, at *28). Plaintiff noticed the 

depositions of Craig Barnes and David Saunders and identified 

Newark, New Jersey as the location of the depositions. Id. 

Neither Barnes nor Saunders is a party to this litigation. Id. 

Defendants argue that Barnes and Saunders would be unduly 

burdened if they were forced to travel to New Jersey for their 

depositions, and that Barnes, as a non-party witness, cannot be 

compelled to travel more than 100 miles from Los Angeles, 

California pursuant to Federal Rule of Civil Procedure 

45(c)(3)(A)(ii). Id. at *29. 

Rule 30(b)(1) states, in pertinent part, that “a party who 

wants to depose a person by oral questions must give reasonable 

written notice to every other party. The notice must state the 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 30 of 43 PageID: 1253
31

time and place of the deposition and, if known, the deponent’s 

name and address.” Therefore, the default rule is that the 

examining party “may set the place for the deposition of another 

party wherever he or she wishes subject to the power of the 

court to grant a protective order under Rule 26(c)(1)(B) 

designating a different place.” Charles Alan Wright, Arthur R. 

Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice and 

Procedure § 2112 (3d ed.2012). Under Rule 30(b)(1), an officer, 

director, or managing agent of a corporate party may be 

compelled to give testimony pursuant to a notice of deposition. 

Accordingly, Rule 30(b)(1) is clear in that “the location 

designated for the taking of a deposition is solely within the 

discretion of the court, thereby requiring each application to 

be considered on its own facts and equities.” Tomingas v. 

Douglas Aircraft Co., 45 F.R.D. 94, 97 (S.D.N.Y. 1968) (citing 

Branyan v. Koninklijke Luchtvaart Maatschappij, 13 F.R.D. 425, 

429 (S.D.N.Y. 1953)). 

However, the general rule regarding the setting for the 

location of a corporate party’s deposition is that the 

deposition ordinarily takes place at the corporate party’s 

principal place of business. See Cadent Ltd. v. 3M Unitek 

Corp., 232 F.R.D. 525, 628 (C.D. Cal. 2005) (internal citations 

omitted). “Notwithstanding the generally recognized rule, 

courts have often required corporate defendants to produce their 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 31 of 43 PageID: 1254
32

officers or agents for depositions at locations other than the 

corporation’s principal place of business where there has been 

no showing that the defendant will suffer any resulting 

financial hardship.” South Seas Catamaran, Inc. v. Motor Vessel 

“Leeway”, 120 F.R.D. 17, 21 fn. 5 (D.N.J. 1988). In addition, a 

number of factors “serve to dissipate the presumption [that a 

corporate party’s deposition should be held at its principal 

place of business and may persuade the Court to require the 

deposition to be conducted in the forum district or some other 

place.” Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. at 628-29. 

These factors include the “location of counsel for the parties 

in the forum district, the number of corporate representatives a 

party is seeking to depose, the likelihood of significant

discovery disputes arising which would necessitate resolution by 

the forum court; whether the persons sought to be deposed often 

engage in travel for business purposes; and the equities with 

regard to the nature of the claim and the parties’ 

relationship.” Id. at 629 (internal citations omitted). 

Pursuant to Federal Rule of Civil Procedure 26(c), a court 

may issue a protective order to regulate the terms, conditions, 

time or place of discovery. Defendants, as the moving party, 

bear the burden of showing good cause for the issuance of a 

protective order. Fed. R. Civ. P. 26(c). Here, Defendants have 

not provided the Court with any evidence regarding the alleged 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 32 of 43 PageID: 1255
33

expense or undue burden associated with holding the depositions 

of Barnes and Saunders in New Jersey. “Courts have often 

required corporate defendants to produce their officers or 

agents for depositions at locations other than the corporation’s 

principal place of business where there has been no showing that 

the defendant will suffer any resulting financial hardship.” 

South Seas Catamaran, Inc. v. Motor Vessel “Leeway”, 120 F.R.D. 

17, 21 fn. 5 (D.N.J. 1988). Furthermore, the Court finds that 

there are a number of circumstances that weigh against the entry 

of a protective order ordering that the depositions of Saunders 

and Barnes be conducted in California. First, both the pro se

Plaintiff and counsel for the Defendants are located in New 

Jersey, and it is established that Defendant Sedgwick does 

business in this district. Also, considering the large number 

of discovery disputes that have developed thus far in this 

litigation, there is a high likelihood that disputes will arise 

during the depositions that may require resolution by the Court. 

Therefore, because Defendants have not met their burden of 

showing good cause for the issuance of a protective order, the 

Court will deny Defendants’ request to order that the 

depositions of Saunders and Barnes be held in California. 

Accordingly, the Court, in its discretion and mindful that Rule 

1 of the Federal Rules of Civil Procedure states that the Rules 

“should be construed and administered to secure just, speedy, 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 33 of 43 PageID: 1256
34

and inexpensive determination of every action and proceeding,” 

will order that the depositions of Saunders and Barnes be either

held via video at Sedgwick’s New Jersey Office or at that 

location, with the expenses to be borne by Defendants.

The Court is not persuaded by Defendants’ argument that 

Barnes is not an officer or managing agent within the meaning of 

Rule 30. The question of whether an individual is a managing 

agent, and thus subject to a notice of deposition, is answered 

on a fact-specific basis. Triple Crown America, Inc. v. 

Biosynth AG, Civil No. 96-7476, 1998 WL 227886, at *1-2 (E.D. 

Pa. 1998) (citing United States v. Afram Lines (USA), Ltd., 159 

F.R.D. 408, 413 (S.D.N.Y. 1994)). Doubts regarding an 

individual’s status as a “managing agent” are resolved in favor 

of the examining party. See Founding Church of Scientology v. 

Webster, 802 F.2d 1448, 1452 (D.C. Cir. 1986); In re Honda 

American Motor Co., Inc. Dealership Relations Litigation, 168 

F.R.D. 535, 540-41 (D. Md. 1996). The inquiry regarding the 

identification of a managing agent essentially involves the 

extent of the individual’s decision-making discretion and 

unsupervised authority, the degree to which his interests 

converge with those of the corporation, and his general 

responsibilities, particularly with regard to the matters at 

issue in the litigation. Triple Crown America, Inc. v. Biosynth 

AG, Civil No. 96-7476, 1998 WL 227886, at *2 (citing Founding 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 34 of 43 PageID: 1257
35

Church of Scientology, 802 F.2d at 1453; In re Honda American 

Motor Co., Inc. Dealership Relations Litigation, 168 F.R.D. at 

540-41). Here, no evidence has been presented regarding any of 

the aforementioned criteria, but the Court does note that 

Barnes, as Managing Partner of Sedgwick’s Los Angeles Office, 

likely has interests that align with those of Defendant 

Sedgwick, and has decision-making discretion and general

authority consistent with that of a managing agent. 

Accordingly, the Court will order that the deposition of Barnes 

be conducted at Sedgwick’s New Jersey office either in person or 

via video.

In sum, the Court finds that much of the discovery at issue 

is reasonably calculated to lead to the discovery of admissible 

evidence and is proper pursuant to Federal Rule of Civil 

Procedure 26. Defendants have not shown that good cause exists 

for the issuance of a protective order as to the entire corpus 

of discovery noted in their submissions. While Defendants 

bemoan that they have already answered 72 interrogatories in 

this matter, Defendants do not assert that Plaintiff has served 

interrogatories in excess of the pre-trial scheduling order’s 

limit of 25 interrogatories per defendant. (See D.E. 16, 

Pretrial Scheduling Order, at *2, ¶ 6). The Court notes that 

Defendants have, thus far, answered 23 interrogatories directed 

to Defendant Keale; 20 interrogatories directed to Defendant 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 35 of 43 PageID: 1258
36

Robertson; 22 interrogatories directed to Defendant Tanenbaum; 

and 17 interrogatories directed to Defendant Sedgwick. (See

Docket Entry Nos. 53-2, 53-3, Exhibits B-E to Defendants’ Motion 

for Protective Order). Accordingly, the Court finds that 

Plaintiff has not exceeded the number of interrogatories per 

defendant allotted to him, and that the additional 5 

interrogatories directed to Defendant Sedgwick are proper. As 

far as the sheer volume of discovery involved in this case, it 

is the Court’s determination that, considering the number of 

Defendants, the claims involved, and the factual circumstances 

alleged in Plaintiff’s pleadings, the discovery at issue is not 

disproportionate and the entry of a broad protective order is 

therefore unwarranted. See Cipollone, 785 F.2d 1108; A & B 

Ingredients, Inc., 2010 WL 335616, at *3.

C. Defendants’ Motion for Sanctions

Lastly, the Court will address Defendants’ motion for 

sanctions. Defendants allege that Plaintiff has brought 

“voluminous, vexatious and predominately irrelevant discovery 

requests” as part of a strategy of forcing Defendants to incur 

the maximum attorneys’ fees possible, and that, consistent with 

those claims, Plaintiff has failed to make court ordered 

appearances on two occasions. (See D.E. 59-1, Defendants’ Brief 

in Support of Motion for Sanctions, at *1). In support of the 

instant motion for sanctions Defendants emphasize Plaintiff’s 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 36 of 43 PageID: 1259
37

failure to appear for a court-ordered, in-person hearing 

scheduled for 11:00 a.m. on June 15, 2012. See id. Defendants 

contend that, as a result of Plaintiff’s failure to attend the 

hearing, Defendants unnecessarily incurred legal fees. Id. In 

addition, Defendants note that Plaintiff had previously failed 

to appear for a Court ordered conference scheduled for February 

16, 2012, and has since appeared fifteen minutes late for a 

court-ordered teleconference on July 2, 2012. Id.

Plaintiff opposes the motion for sanctions, and asserts 

that his failure to attend the hearing was the result of his own 

scheduling mistake. (See D.E. 66, Plaintiff’s Letter Brief in 

Opposition). Plaintiff alleges that he “incorrectly noted the 

hearing time for 1:30 p.m. when the matter was actually 

scheduled for 11:00 a.m.,” and that he entered the courthouse 

shortly before noon and spend approximately one hour preparing 

his arguments in the court’s library. Id. When Plaintiff 

finally entered the courtroom at approximately 1:00 p.m. the 

Court had already allowed defense counsel to leave the building 

on account of Plaintiff’s non-appearance, and the Court had 

moved on to other matters. Id. Plaintiff alleges that he 

continued to sit in the courtroom, mistakenly believing that he 

was early for the hearing, when he was informed by a Court 

employee that the hearing was scheduled for 11:00 a.m. and that 

defense counsel had already left the courthouse. Id. at *1-2. 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 37 of 43 PageID: 1260
38

At that point Magistrate Judge Waldor returned to the courtroom, 

and Plaintiff explained his failure to appear for the hearing on 

the record and apologized for his mistake. Id. at *2. 

It is established that a district court has the inherent 

power to sanction parties appearing before it for refusing to 

comply with its orders. See, e.g., Tracinda Corp. v. 

DaimlerChrysler AG, 502 F.3d 212, 242 (3d Cir. 2007). This 

inherent power was recognized by the United States Supreme Court 

in United States v. Hudson, 11 U.S. 32 (1812), where the Court 

held that “[c]ertain implied powers must necessarily result to 

our Courts of justice from the nature of their institution,” 

powers “which cannot be dispensed with in a Court, because they 

are necessary to the exercise of all others.” These powers are 

“governed not by rule or statute but by the control necessarily 

vested in courts to manage their own affairs so as to achieve 

the orderly and expeditious disposition of cases.” Link v. 

Wabash R. Co., 370 U.S. 626, 630-631 (1962). 

In addition to the court’s inherent authority, Federal Rule 

of Civil Procedure 16(f) provides that if a party fails to obey 

a scheduling or pretrial order, or if no appearance is made on 

behalf of a party at a pretrial conference, a district court, 

upon motion or the court’s own initiative, may issue sanctions. 

Rule 16 further states that “[i]nstead of or in addition to any 

other sanction, the court must order the party, its attorney, or 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 38 of 43 PageID: 1261
39

both to pay the reasonable expenses –- including attorney’s fees 

–- incurred because of any noncompliance with this rule, unless 

the noncompliance was substantially justified or other 

circumstances make an ward of expenses unjust.” Fed. R. Civ. P. 

16(f)(2). Under Rule 16(d), monetary sanctions for 

noncompliance with Rule 16 pretrial orders are required and 

appropriate absent a showing that the violation was 

“substantially justified” or the award of expenses is “unjust” 

under the circumstances of the case. Tracinda Corp. v. 

DaimlerChrysler AG, 502 F.3d 212, 241 (3d Cir. 2007). As noted 

by the Third Circuit in Tracinda Corp., “’unjust’ can be 

variously defined as ‘unfair,’ ‘unreasonable,’ ‘inequitable,’ or 

‘harsh,’” and these definitions “invite a consideration of the 

degree of the sanction in light of the severity of the 

transgression[...].” Id. Thus, whether a party’s misconduct is 

intentional, negligent, or inadvertent is a significant factor 

in assessing the severity of the transgression at issue. See 

id. 

Here, the Court, in its discretion, does not find that the 

misconduct at issue warrants an award of sanctions. Plaintiff’s 

failure to timely attend the June 15, 2012, conference at 11:00 

a.m. appears to be the result of Plaintiff’s own negligence and 

not motivated by any improper purpose. After arriving to the 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 39 of 43 PageID: 1262
40

courtroom late on June 15, 2012, Plaintiff explained his mistake 

on the record: 

Your Honor, I apologize for [missing the 

conference]. It was my understanding that 

the hearing was going to be held at 1:30. I 

know we had a conference with Mr. Bruk last 

– end of last month. And I – I think that I 

had expressed to the Court earlier, because 

I have a 7-month-old son, that usually the 

morning, I can’t make it, so I had asked for 

the conference to be held after lunch. And 

my apologies to the Court. It was my 

understanding that it was 1:30. I did not 

look at the calendar again. I’ll honestly 

admit that, Your Honor. But I believe even 

when we spoke with Mr. Bruk about two weeks 

ago, it was the understanding that it was 

going to be in the afternoon and that there 

were no other matters scheduled. That’s my 

recollection.

(See D.E. 56, Transcript of June 15, 2012, Proceedings, at *2, 

¶¶ 10-22). The Court also recognizes that at the June 15, 2012 

proceedings Magistrate Judge Waldor, after expressing her 

disappointment that Plaintiff forgot to check ECF before the 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 40 of 43 PageID: 1263
41

scheduled hearing, noted that Defendants had been given leave to 

file a motion for sanctions “in a vacuum,” before the Court was 

apprised of Plaintiff’s side of the story. See id. at *5, ¶¶ 

19-24. 

Defendants cite Grant v. Omni Health Care Sys. of NJ, Inc., 

2009 WL 3151322 (D.N.J. Sept. 24, 2009), and Miller v. Unum Life 

Ins. Co. of America, 2006 U.S. Dist. LEXIS 76079 (E.D. Pa. Oct. 

19, 2006), in support of the instant motion for sanctions. Both 

cases may be distinguished from the instant matter. The 

offending attorney in Grant had a long history of misconduct, 

including, inter alia, serving and filing numerous documents

late, unprofessional and discourteous conduct, missing 

deadlines, failing to appear on numerous occasions, and filing 

motions long after the deadlines set forth in scheduling orders 

had expired. See 2009 WL 3151322, at *1-5. While Miller did 

not feature a pattern of misconduct as egregious as that found 

in Grant, counsel in that case failed to attend a settlement 

conference on a date and time selected by counsel for no 

apparent reason, and in doing so caused opposing counsel to 

needlessly drive for over four hours from Reading, Pennsylvania 

to Philadelphia. See 2006 U.S. Dist. LEXIS 76079, at *2-3. 

As noted above, Plaintiff has explained his failure to 

timely appear at the June 15, 2012, conference, and his failure 

to appear at said conference has not significantly hindered this 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 41 of 43 PageID: 1264
42

litigation. It is this Court’s determination that the 

transgression at issue does not warrant an award of sanctions. 

However, the Court notes that Plaintiff has unfortunately failed 

to appear or appeared late for more than one court-ordered 

conference or hearing, and the Court will not tolerate this 

behavior developing into an established pattern. While the 

Court recognizes that parties may occasionally suffer unexpected 

trials and tribulations that hinder their ability to make courtordered appearances, the Court also expects that litigants in 

this Court respect the judicial process and take appropriate 

care in ensuring that they correctly calendar court-ordered 

events, and notify the Court and counsel when they will be 

unavailable. Accordingly, although the Court does not find that 

sanctions are appropriate at this juncture, continued failure to 

respect this Court’s scheduled conferences and hearings may 

warrant the imposition of sanctions in the future. 

IV. CONCLUSION

For the foregoing reasons, and good cause shown,

IT IS on this 28th day of March, 2013,

ORDERED that Plaintiff’s motion to amend his pleading is 

granted in part and denied in part. The motion as to the 

proposed McGeehon amendment, the proposed breach of contract 

amendment, and the proposed amended factual allegations is 

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 42 of 43 PageID: 1265
43

granted. The Court denies Plaintiff’s motion as to the proposed 

Saunders amendment. Plaintiff shall hereafter modify his 

proposed Amended Complaint in accordance with this Opinion and 

file and serve his Amended Complaint within the time provided by 

the Federal Rules of Civil Procedure; and it is 

FURTHER ORDERED that Defendants’ motion for a protective 

order is granted in part and denied in part. The discovery 

requests at issue are hereby modified in accordance with this 

Opinion. The parties will immediately meet and confer regarding

a plan to complete the outstanding discovery and file their 

joint proposal with the Court within ten days; and it is

FURTHER ORDERED that Defendants’ motion for sanctions is 

denied.

s/ Steven C. Mannion 

HONORABLE STEVEN C. MANNION

UNITED STATES MAGISTRATE JUDGE

 3/28/2013 9:21:08 AM

Date: March 28, 2013

Case 2:11-cv-00642-ES-SCM Document 86 Filed 03/28/13 Page 43 of 43 PageID: 1266