Decision and OrderI. INTRODUCTION AND BACKGROUND James and Deborah Sarkees believe that they suffered various damages, including loss of consortium, because defendants E. I. DuPont de Nemours and Company and First Chemical Corporation did not properly warn James that his workplace exposure to ortho-toluidine would lead to bladder cancer. James allegedly was exposed to ortho-toluidine when he worked at the Goodyear Tire & Rubber Company in Niagara Falls, New York in 1974. Plaintiffs commenced this case by filing their complaint on July 14, 2017. (Dkt. No. 1.) The complaint contains claims of negligence and strict product liability.The parties have come before the Court now to resolve three separate discovery-related motions. Plaintiffs seek a protective order blocking the deposition of Deborah Sarkees. (Dkt. No. 29.) Defendants want to compel some additional discovery from plaintiffs’ two expert witnesses. (Dkt. No. 36.) Defendants also have cross-moved for an order compelling Deborah Sarkees’s deposition. (Dkt. No. 41.) For the sake of brevity, the Court will say more about each motion as needed below and otherwise presumes familiarity with the docket. The Court has deemed all three motions submitted on papers under Rule 78(b).II. DISCUSSIONA. General principles for motions for protective orders and motions to compel“A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending…. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense….” Fed. R. Civ. P. 26(c). “The party seeking a protective order has the burden of showing that good cause exists for issuance of that order.” Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004) (internal quotation marks and citation omitted).Similar principles govern motions to compel. “Motions to compel and motions to quash a subpoena are both entrusted to the sound discretion of the district court. This principle is in keeping with the traditional rule that a trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion. A district court abuses its discretion when (1) its decision rests on an error of law or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Am. Savings Bank, FSB v. UBS PaineWebber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 108 (2d Cir. 2003) (internal quotation and editorial marks and citations omitted). “The burden of demonstrating relevance is on the party seeking discovery. Once relevance has been shown, it is up to the responding party to justify curtailing discovery. The objecting party must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each request is not relevant or how each question is overly broad, burdensome or oppressive. Even when the requested information sought is relevant, the court must limit the frequency or extent of discovery where it is unreasonably cumulative or duplicative or when the burden or expense of the proposed discovery outweighs its likely benefit. Courts have significant flexibility and discretion to assess the circumstances of the case and limit discovery accordingly to ensure that the scope and duration of discovery is reasonably proportional to the value of the requested information, the needs of the case, and the parties’ resources.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 561-62 (S.D.N.Y. 2013) (internal quotation marks and citations omitted).Proportionality has assumed greater importance in discovery disputes since the recent amendments to Rule 26 of the Federal Rules of Civil Procedure. Rule 26(b)(1) now sets forth that discovery must be “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.” “Under the amended Rule, relevance is still to be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any party’s claim or defense. However, the amended Rule is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to analyze proportionality before ordering production of relevant information.” Walker v. H & M Henner & Mauritz, L.P., No. 16 CIV. 3818 (JLC), 2016 WL 4742334, at *2 (S.D.N.Y. Sept. 12, 2016) (internal quotation and editorial marks and citations omitted).Orders addressing either motions for protective orders or motions to compel are reviewed only for abuse of discretion. See Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992) (“A trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion.”) (citations omitted).B. Deposition of plaintiff Deborah SarkeesAgain, plaintiffs seek a protective order blocking the deposition of plaintiff Deborah Sarkees, James’s wife. According to plaintiffs, Deborah did not meet James until 1985 and did not marry him until 1986, meaning “that she has no knowledge of her husband’s work at Goodyear in 1974.” (Dkt. No. 29-1 at 5.) Plaintiffs express frustration with repeated failures to have any deposition of Deborah scheduled. Plaintiffs also have included this comment in their motion papers:It is respectfully submitted that these defendants have no real interest in hearing what Deborah Sarkees has to say about her damages. Rather, this entire dispute was a retaliatory game played by defense attorney David Kloss in order to obtain a second deposition of the plaintiffs’ expert in another case. Yet, even when presented with an agreement to provide that very deposition, Mr. Kloss decided to up the ante by refusing the pay the costs that would be incurred by the expert in preparing for the deposition.(Dkt. No. 29-9 at 4.) After addressing issues related to scheduling and availability, defendants address the substantive need for Deborah’s testimony as follows:Plaintiffs’ Counsel argues that a deposition of Mrs. Sarkees is not proportional or necessary to the case. There are several circumstances that necessitate the testimony of Plaintiff Mrs. Sarkees. First, Mrs. Sarkees is a named party to this lawsuit. She, together with her husband, is seeking compensatory, special, and punitive damages in excess of $150,000.00. She has interposed her own loss of consortium claim against the Defendants. Mrs. Sarkees is the key witness regarding her claim — the defendants have no other access to the information relevant to her claim. Defendants should be permitted to elicit information from her as to the extent of such alleged loss and the nature of services that she has had to render, as such matters relate directly to her cause of action.Second, Mrs. Sarkees met Mr. Sarkees while both were working for the Frontier Chemical Plant. This facility was subsequently classified as a Superfund site due to the toxic agents handled on the property. Mrs. Sarkees worked in the office at the Frontier Chemical Plant for several years. Thus, she likely possesses more information regarding the plant and its potential exposures than Mr. Sarkees may have had.Third, Mrs. Sarkees was also involved in and has knowledge of the commercial trucking business that Mr. Sarkees operated. Truck driving, an occupation that Mr. Sarkees has held for over 30 years, caused Mr. Sarkees to be exposed to diesel exhaust fumes, which are considered to be known human carcinogens by the International Agency for the Research on Cancer. While the parties disagree as to full extent of the exposure, Plaintiffs’ specific causation expert, Dr. L. Christine Oliver, concedes that these toxic exposures occurred in her expert report.Lastly, Mr. and Mrs. Sarkees have been married for over 30 years, and as such she can testify to the alleged lifestyle changes of Mr. Sarkees as a consequence of his diagnosis and subsequent treatment. Accordingly, Mrs. Sarkees possesses unique knowledge of facts pertinent to this case.(Dkt. No. 41-1 at 10-11.)Defendants have the better argument here. Based on the correspondence in the docket, neither side seems to be philosophically opposed to having this deposition occur. The parties mostly became frustrated about scheduling. Even if plaintiffs objected to the deposition on substance, the objections would not be sufficient. Deborah Sarkees probably does not have much to say about the substance of the negligence and strict liability claims. Cf. Franco v. Yale Univ., 80 Fed. App’x 707, 710 (2d Cir. 2003) (summary order) (affirming grant of a protective order against the deposition of an employee who “was not employed by Yale when all of the operative events occurred, and had submitted an affidavit attesting to his lack of knowledge”). Still, Deborah might have a lot to say about the daily impact of any alleged injuries on her husband’s life. Deborah also can testify about her claim for loss of consortium. The potential for uncovering relevant information is enough at this stage of the litigation. Cf. Brown v. Astoria Fed. Sav. & Loan Ass’n, 444 Fed. App’x 504, 505 (2d Cir. 2011) (summary order) (affirming the denial of a protective order where the district court “discredited these allegations of abuse of process and credited Astoria’s representations that the opportunity to examine Brown in person to assess his demeanor and credibility was necessary to prepare its defense”).While the Court will allow Deborah’s deposition to occur, it is concerned about the inability of experienced counsel to settle on mutually agreeable circumstances for the deposition. Accordingly, and barring extraordinary circumstances, the Court orders that any deposition of Deborah must conclude on or before May 31, 2019. Failure to conclude the deposition by that date will lead to waiver of the deposition and sanctions as needed.C. Dr. Finkel’s prior reportsNext, defendants seek further production from one of plaintiffs’ experts, Dr. Adam Finkel. Dr. Finkel is a Clinical Professor of Environmental Health Sciences at the University of Michigan School of Public Health. Dr. Finkel has provided defendants with a report that — and the Court apologizes in advance for oversimplification in the name of brevity — focuses on a “what did they know and when did they know it” theme with respect to the cancer risks for ortho-toluidine. (See generally Dkt. No. 36-3.) That is, the report reviews research conducted about cancer risks for ortho-toluidine; how much of this research defendants would have known when supplying the chemical to James Sarkees’s workplace; and what warnings defendants could have provided but did not. Through discovery conducted so far, defendants have identified three other cases in which Dr. Finkel generated reports concerning risks of exposure from beryllium and 1-bromopropane. Defendants suspect similarities between the three prior reports and the report that Dr. Finkel created for this case:Dr. Finkel’s opinions in this case (Sarkees) mirror the issues involved in the three cases referenced above. He opines that OT causes bladder cancer. Ex. A 12. He repeatedly opines that the defendants’ warnings were inadequate, particularly about OT’s alleged ability to cause bladder cancer. Id.
45-101. He opines on industrial hygiene at the Goodyear plant where Mr. Sarkees worked, including lack of urine monitoring and inadequacy of air monitoring (
