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Under Federal Rule of Civil Procedure 26(b)(1), discovery must be "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."
Plaintiff Freedom’s Path at Dayton (FPD)'s goal is to use Veterans Affairs Supportive Housing (VASH) project-based rental assistance to house veterans, most of whom are disabled, in a development known as Freedom Path-Dayton VA on the VA Medical Center's campus in Dayton, Ohio. To reach this goal, FDP needs defendant Dayton Metropolitan Housing Authority (DMHA) d/b/a Greater Dayton Premier Management (GDPM)’s support "because only [Public Housing Authorities] such as GDPM may apply for a VASH allocation." On April 9, 2013, GDPM's Interim Chief Executive Officer, Alphonzio Prude, sent DMHA a letter extending GDPM's "support for FPD’s new development on the campus of the VA Medical Center and committed thirty-three ... project-based vouchers.” FPD understood this as GDPM's initial affirmative commitment to support FDP’s efforts to obtain VASH financing. But since this initial commitment, GDPM "has balked at providing continued support to [FPD]." In December 2015, FPD asked GDPM to apply for project-specific, project-based VASH vouchers on FPD’s behalf. GDPM declined to do so and, instead, proposed applying for VASH Project-Based Rental Assistance on behalf of itself. FPD alleged that by applying for VASH assistance on its own behalf and by not applying in a timely manner for FPD’s specific, project-based VASH vouchers, GDPM jeopardized HUD's award of 25 points that would give FPD enough points for its project to be selected. On September 2, 2016, FPD’s counsel sent a detailed letter to GDPM asking it to apply to HUD on FPD’s behalf for 60 VASH vouchers before the impending September 9, 2016 deadline. FPD asked GDPM to "[p]lease treat this as a request for reasonable accommodation under the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act, and take whatever steps necessary to accommodate our request...." FPD asserted that GDPM denied the requested accommodation. Thus, FPD sought (1) declaratory relief concluding that GDPM violated the FHA and ADA; (2) an Order mandating GDPM to apply to HUD on Plaintiff's behalf for VASH project-based rental assistance or, alternatively, to grant Plaintiff a reasonable accommodation; (3) preliminary and permanent injunctions prohibiting GDPM from violating the ADA and FHA; and damages "for the harm it experienced as a result of GDPM's discriminatory and dilatory practices." In response, DMHA filed a motion for protective order barring the deposition of five individuals, as well as a motion for protective order barring the deposition of third party witnesses Prude, Smith, Smelkinson and Keyser, alleging that (1) the depositions are irrelevant to any claim or defense; (2) the depositions would subject DMHA to severe undue burden and expense; and (3) none of the depositions meet the proportionality requirement of Rule 26(b)(1).
Should the depositions of the third party witnesses be barred from discovery?
In re: Prude — FPD alleged that through Mr. Prude's letter, DMHA "extended its support for [FPD’s] new development on the campus of the VA Medical Center and committed thirty-three (33) project-based vouchers." This commitment was at the heart of FPD’s claims. And, Mr. Prude, as Defendant's interim CEO at the time of this commitment, likely has relevant and thus discoverable information about Plaintiff's claims.
In re: Smith — DMHA contended that the deposition of Ms. Smith—an Enhanced Use Lease Project Manager at the United States Department of Veterans Affairs—was "largely irrelevant." Ms. Smith's "involvement in the events giving rise to this lawsuit is limited to her correspondence with DMHA and FPD’s representatives regarding the status of DMHA's response to FPD’s accommodation request." Given DMHA’s assertion that "[FPD’s] sole claim in this case" is "that DMHA improperly refused to satisfy [FPD’s] accommodation request," the deposition of Ms. Smith—who, as DMHA claims, was involved with FPD’s accommodation request—sought information relevant to FPD’s claim. Defendant's argument that Ms. Smith's testimony was not relevant because it would constitute inadmissible hearsay lacked merit for discovery purposes, that is information within this scope of discovery need not be admissible in evidence to be discoverable."
In re: Smelkinson and Keyser — DMHA asserted that depositions of Ms. Smelkinson—a Housing Program Specialist at HUD—and Mr. Keyser—General Counsel for HUD—"must be barred due to these two individuals' lack of personal knowledge regarding any facts underlying the [present] lawsuit." DMHA insisted that neither was "involved in any of the events giving rise to [FPD’s] action relating to [FPD’s] accommodation request for an award of vouchers for [FPD’s] housing complex, or DMHA's handling of and response to [FPD’s] accommodation request." On the other hand, FPD alleged that Ms. Smith consulted Ms. Smelkinson on whether FPD was disqualified from the HUD VASH NOFA (notice of finding availability) process. And, Ms. Smelkinson "reportedly told the VA VASH person, De Carol Smith, that, contrary to DMHA’s assertion, FPD was eligible to partner with DMHA in the NOFA. Likewise, Ms. Heapy—the current CEO of Defendant DMHA—stated that Mr. Keyser, HUD general counsel, agreed with the opinion of Gordon Black, a low-level HUD official, who said that she could not "'honor' the original commitment of 33 vouchers to FPD 'without going through the necessary RFP [competitive] process." But, according to FPD, its attorney, Orlando Cabrera, spoke to Mr. Keyser, and he "said that there were a number of ways that DMHA could partner with FPD, including amending its Administrative Plan.” As explained above, "DMHA's Administrative Plan was amended by its Board in October or early November of 2016, and approved by HUD in April 2017 to specifically include selection based on previous competition ...." In other words, Ms. Smelkinson and Mr. Keyser were allegedly involved—to some degree—in the facts giving rise to the present lawsuit. And, as FPD asserted, Ms. Smith, Ms. Smelkinson, and Mr. Black all possess information regarding whether DMHA could lawfully honor its initial commitment of thirty-three project-based vouchers and/or whether DMHA could lawfully grant FPD’s request for reasonable accommodation. Therefore, their depositions search for relevant and discoverable information about FPD’s claims.
Finally, FPD alleged that "[t]he historical background of [DMHA’s] actions, the sequence of events, [DMHA’s] departures from the normal procedural sequence or substantive criteria all reflect intent to discriminate." Accordingly, the background—including Mr. Prude's initial commitment letter, DMHA’s and FPD’s consultation with HUD employees, and HUD employee's discussions with VA employees—might or might not shed light on the merits of FPD’s claims. Consequently, the information FPD seeks by deposing Mr. Prude, Ms. Smith, Ms. Smelkinson, and Mr. Keyser is discoverable.