United States District Court, W.D. North Carolina, Charlotte Division
MAX O. COGBURN, Jr., District Judge.
THIS MATTER is before the court on Plaintiff's Objections to the Magistrate Judge's Order of December 2, 2014 (#106) and Defendants' Motion for Sanctions (#107). Having considered the motions and reviewed the pleadings, the court upholds the magistrate judge's determination in its entirety and enters the following order.
A. Procedural History
On June 8, 2010, Plaintiff filed a complaint in the Superior Court of Mecklenburg County, North Carolina, naming Ally Financial Inc. ("Ally" or "Defendant"), Amy Bouque ("Bouque"), Kathleen Patterson ("Patterson"), and Yequiang (Bill) He ("He") as defendants. (Document No. 1-1 at 4). The complaint asserted claims arising under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981, as well as a state law claim for wrongful termination. (Document No. 1-1 at 15-19). On July 8, 2010, Plaintiff filed an amended complaint, the crux of which alleged wrongful termination by Defendant Ally. (Document No. 8-1 at 7-8). According to the amended complaint, Plaintiff began her employment with GMAC, Inc. in Charlotte, North Carolina during October 2008, as a senior strategic sourcing manager for legal services. Id. at 7. Plaintiff was hired by GMAC, Inc. "to support the company's legal department by locating legal service vendors or law firms to represent Defendant's interests in assisting the company's legal department in its decisions to purchase legal services." Id. at 9. Plaintiff contended that she was fired by Defendants because she filed an action against her previous employer, the law firm Mayer Brown, LLP, alleging "inter alia, race based discrimination and unfair and deceptive trade practices." Id. at 7-8. Plaintiff asserted that though Defendant Ally had stated "grounds for termination for failure to disclose a conflict of interest during the interview process and for misrepresentation during the hiring process, " such statements were "pretext for purposeful discrimination and retaliation for having filed a charge with the EEOC and a claim of race discrimination against one of Defendant Ally's legal vendors, Mayer Brown." Id. Defendant Ally removed the action to this court on July 12, 2010.
Upon several motions from both parties, the court entered an Order (Document No. 31) on November 19, 2010, affirming Magistrate Judge Keesler's "Memorandum and Recommendation" (Document No. 23). The court denied as moot Plaintiff's motion to remand; granted Defendant Ally's motion to dismiss Plaintiff's claim for negligent infliction of emotional distress; granted Defendant Bouque's motion to dismiss; and granted Defendant Dautrich's motion to dismiss. (Document No. 31). On December 28, 2010, the court also dismissed Plaintiff's claims against Defendant He and Defendant Patterson. (Document No. 35).
On January 17, 2011, the court issued a "Pretrial Order And Case Management Plan" (Document No. 37). Consistent with the parties' uncontested proposal, the deadline for the completion of all discovery was set for July 31, 2011. (Document No. 36 at 1; Document No. 37 at 1-3). Little, if any, activity occurred in this case from January 25, 2011, until on or about July 12, 2011, almost six months later, when Plaintiff served written interrogatories on Defendant. (Document No. 38 at 1). Plaintiff's discovery requests were thus filed less than twenty (20) days before the deadline for the completion of all discovery. Plaintiff did not file a request to extend the discovery deadline prior to, or contemporaneously with, her discovery requests. On July 20, 2011, Plaintiff for the first time sought an extension of the discovery deadline. (Document No. 38). Notably, Plaintiff's request was framed as one to allow Defendant Ally time to respond to Plaintiff's interrogatories, but was not consented to by Ally. Id. Defendant Ally did consent to an extension of time to complete already scheduled depositions. Id. Based on the foregoing, Judge Keesler did not find good cause to extend the time for written discovery, and denied that portion of Plaintiff's motion, but, noting the parties' consent, allowed the parties through August 30, 2011, to complete currently scheduled depositions. (Document No. 39).
On or about August 4, 2011, Plaintiff served her "Amended Notice Of Rule 30(b)(6) Deposition" (Document No. 45-3) to be held on August 22, 2011, in Charlotte, North Carolina, to which Defendant Ally objected (Document No. 45-5). Plaintiff included approximately twenty categories of documents she contended should be produced at the proposed 30(b)(6) deposition(s). (Id. at 4-6). Defendant Ally then filed a motion for a protective order (Document No. 44) on August 16, 2011. The court stayed the Rule 30(b)(6) deposition pending a ruling on Defendant's motion for protective order. (Document No. 48).
On September 15, 2011, Judge Keesler granted Defendant's Motion For Protective Order (Document No. 55) as follows: (1) two of Defendant's three representatives were to be deposed in Detroit, Michigan, and the third in Charlotte, North Carolina; (2) Defendant was directed to "make available to Plaintiff those documents Defendant's 30(b)(6) representatives rely upon for their deposition preparation and testimony"; and (3) all depositions were to be completed by October 14, 2011. (Document No. 55 at 10-11). A videotaped Rule 30(b)(6) deposition took place on October 14, 2011 with Ally's corporate representative Amy Bouque. (Document No. 96 at 2; Document No. 63-7).1 "Plaintiff's Third Amended Notice Of Rule 30(b)(6) Video Deposition" noted that "[t]he deposition will be videotaped... and Plaintiff provides notice to Defendant Ally and the other parties to this action that the deposition may be used at the time of the trial. " (Document No. 63-7 at 40) (emphasis added). The transcript of the 30(b)(6) does not reflect that counsel or the parties made any stipulations regarding custody of the transcript or recording. (Document No. 63-7 at 37-38); see also FED. R. CIV. P. 30(b)(5)(C) and (f)(3).
Defendant Ally Financial moved for summary judgment (Document No. 49) on August 30, 2011, and the issue was fully briefed by October 6, 2011. See (Document Nos. 50, 56, 57, and 59). In opposing the motion, Plaintiff filed the 30(b)(6) deposition transcript of Bouque's testimony, but did not file copies of any videotape. (Document No. 57-8). The court held a motion hearing on January 25, 2012, and subsequently granted Defendant's motion for summary judgment and dismissed the underlying action. (Document No. 82).
The court's Judgment was affirmed in an unpublished per curiam opinion by the Fourth Circuit. See (Document Nos. 82, 83 and 88.). Plaintiff's petition to the Fourth Circuit for rehearing and rehearing en banc was denied. (Document Nos. 89, 91.) Plaintiff's petition for a writ of certiorari to the United States Supreme Court was also denied. Springs v. Ally Financial Inc., 133 S.Ct. 1496 (2013).
Plaintiff then filed a lawsuit in the Eastern District of Michigan against Ally and the individual Defendants from this action, as well as additional Ally employees, Mayer Brown LLP, and the United States Department of the Treasury, alleging that her termination from Ally was the result of racial discrimination. See Springs v. Mayer Brown, LLP, et al., 2:11-cv-13518-BAF-MJH (E.D. Mich.). The Eastern District of Michigan held that Plaintiff's discrimination claims were barred by collateral estoppel and res judicata; that ruling was unanimously affirmed by the Sixth Circuit. Id. at Document No. 60.
B. Defendants' Motion for Protective Order
A year and a half after the Fourth Circuit's ruling, in or about February 2014, Plaintiff posted a video on YouTube titled "Amy Bouque Deposition: Best Ways to Tell if A Witness is Lying." See https://www.youtube.com/channel/UCoyNTq41LanT9igLfA6-Hdg. The 37-minute video consists entirely of excerpts from Ms. Bouque's 30(b)(6) deposition, overlaid with audio commentary by Plaintiff. In her commentary in the video, Plaintiff repeatedly suggests that Ms. Bouque is lying at the deposition based on Ms. Boque's various hand gestures. For example, when Ms. Bouque touches her ear during her testimony, Plaintiff states: "The monkey hears no evil. She doesn't want to hear her own lies." When Ms. Bouque touches her nose, Plaintiff states: "This is one of the worst signs-the Pinocchio. The deponent's subconscious mind thinks her nose is growing while she's lying and that everyone can see it, so she tries to cover her nose so we cannot see it growing." When Ms. Bouque rests her chin on her hands, Plaintiff states: "This gesture is just called the liar liar.'... She is using her two hands pressed up against her mouth to try to prevent herself from being insincere."
Around the same time, Plaintiff posted two other videos on YouTube, one entitled "Ally Bank - Agent of the Elite - Doesn't Care About Customers, " and the other entitled "Ally Bank - They Don't Represent Your Interests." These videos likewise consist of excerpts from the videotape of Ms. Bouque's Rule 30(b)(6) deposition testimony. Ally and Ms. Bouque state that their counsel sent a letter to Plaintiff on July 2, 2014, demanding she remove the videos, but as of the date of Defendants' response to Plaintiff's objections, the videos were still posted on YouTube. After receiving no response from Plaintiff, Defendants Ally and Bouque filed a motion for a protective order (Document No. 95) on September 24, 2014. Defendants sought either a new protective order or a modification of the existing protective order (Document No. 55). Defendants asked the court to require that the video from the 30(b)(6) deposition of Ally be used only for the purposes of this action, and thus, removed from YouTube. Defendants alleged that the YouTube video defamed Ally and Bouque and that the posted videos abused the discovery process. Plaintiff opposed the motion.
C. The Magistrate Judge's Order
On December 2, 2014, Magistrate Judge Keesler entered an order granting Defendants' motion for protective order. (Document No. 104). In that order, Judge Keesler amended the existing protective order to provide that "No party shall publish or disseminate audio or video recordings obtained during discovery in this action without prior permission of the Court." Id. The order further mandated that:
 Plaintiff shall immediately have any video or audio recordings related to this action removed from YouTube and any other internet site. Such video(s) or audio recording(s) may only be used in connection with this ...