Cortazar Laboratories, LLC v. First Citizens Bank and Trust Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CORTAZAR LABORATORIES, LLC,
Plaintiff,
vs. 	Civ. No. 24-993 WJ/SCY
FIRST-CITIZENS BANK AND
TRUST COMPANY,
Defendant.
ORDER REGARDING
MOTIONS FOR PROTECTIVE ORDER
In an attempt to complete all necessary depositions by the March 16, 2026 discovery
deadline, each party noticed several witness depositions to take place the last week of discovery.
These notices resulted in the parties filing cross motions for protective orders. Doc. 46, 48.
Having considered the motions and the relevant law, the Court denies Plaintiff’s motion for a
protective order and grants Defendant’s motion.
PROCEDURAL BACKGROUND
After granting several other extensions, on December 8, 2025, the Court extended the
discovery deadline in this case to March 16, 2026. Doc. 36. On December 18, 2025, Defendant
First-Citizens Bank sent deposition notices to Plaintiff’s counsel, scheduling the following
depositions: Alfredo Cortazar set for January 12, 2026; Melinda Zak set for January 13, 2026;1
and a Rule 30(b)(6) representative of Cortazar Laboratories, LLC set for January 12, 2026. Doc.
48-1. The Rule 30(b)(6) notice listed 15 topics Defendant planned to inquire about at the
1 The notice of deposition sets this deposition for “January 13, 2025,” Doc. 48-1 at 5, but given
that it was transmitted to Plaintiff’s counsel on December 18, 2025, the year appears to be a typo,
id. at 2.
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deposition. Id. at 10-11. Sometime thereafter, the parties began conferring regarding settlement.
Doc. 46 at 2; Doc. 48 at 2-3. As such, on January 7, 2026, Defendant canceled the depositions set
for January 12 and 13. Doc. 48-2. However, the parties were unable to settle and so on February
24, 2026, Defendant unilaterally re-noticed the depositions of Alfredo Cortazar, Melinda Zak,
and Cortazar Laboratories for March 10 and 11, 2026. Doc. 48-3; Docs. 46-1, 46-2, 46-3. The
Rule 30(b)(6) notice of Cortazar Laboratories listed 15 depositions topics, which exactly
mirrored the topics listed in the January 12, 2026 notice of deposition. Compare Doc. 48-3 at 6-
7, with Doc. 48-1 at 10-11.
On March 5, 2025, Plaintiff’s counsel contacted defense counsel to inform them that
“counsel and/or witnesses [were] unavailable on the unilaterally set deposition dates.” Doc. 46 at
3. Defense counsel agreed to move the depositions, as long as they took place before the March
16 discovery deadline. Doc. 48 at 4. Instead, on March 6, 2026, Plaintiff filed a notice of
nonappearance for the March 10 and 11 depositions, Doc. 47, along with the present motion for
protective order, Doc. 46. On March 9, 2026, Defendant filed a response, requesting that the
Court deny Plaintiff’s motion and order that the depositions move forward on March 10 (the
following day) and March 11. Doc. 48.
In its response, Defendant also filed a cross motion for protective order. Doc. 48. That is,
on March 6, 2026, Plaintiff unilaterally issued seven notices of depositions, to depose Defendant
First-Citizens and several employees on March 12, 13, and 16. On March 9, 2026 Defendant
filed a notice of nonappearance for those depositions, Doc. 49, along with its cross motion for
protective order, Doc. 48. Plaintiff filed no reply to its motion for protective order and no
response to Defendant’s motion within the time set forth by the Local Rules. As such, on March
31, the Court issued an order directing Plaintiff to file either a Local Rule 7.4(a) notice that all
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parties have agreed to an extension and identifying the new deadline, a motion for additional
time to file its reply/response, or a Local Rule 7.4(e) notice that briefing is complete. Doc. 50.
Thereafter, Plaintiff filed a notice of completion of briefing. Doc. 51.
DISCUSSION
Under Federal Rule of Civil Procedure 26, “[t]he court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense, including . . . forbidding the disclosure or discovery; specifying terms, including
time and place or the allocation of expenses, for the disclosure or discovery; prescribing a
discovery method other than the one selected by the party seeking discovery; [or] forbidding
inquiry into certain matters or limiting the scope of disclosure or discovery to certain matters . . .
.” Fed. R. Civ. P. 26(c)(1). On the other hand, “[i]f a motion for a protective order is wholly or
partly denied, the court may, on just terms, order that any party or person provide or permit
discovery.” Fed. R. Civ. P. 26(c)(2). The burden is on the moving party to demonstrate good
cause for the requested protective order. Benavidez v. Sandia Nat’l Lab., 319 F.R.D. 696, 721
(D.N.M. 2017).
Under Rule 30(b)(6), a party may name an entity as a deponent and “describe with
reasonable particularity the matters for examination” of that entity. Fed. R. Civ. P. 30(b)(6). The
entity must then designate one or more persons to testify on its behalf. Id. “The [entity] must
produce fully prepared and knowledgeable witnesses on the topics designated, but the
questioning party must be specific in what it wants to know.” Peshlakai v. Ruiz, No. CIV 13-
0752 JB/ACT, 2014 WL 459650, at *25 (D.N.M. Jan. 9, 2014).
The Court will address the parties’ cross motions for protective order in turn.
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1. 	Plaintiff’s Motion for Protective Order
Plaintiff requests that the Court issue a protective order as to the March 10 and 11
depositions given “Defendant’s failure to confer and for its terminating settlement discussions at
the very last moment before the end of the discovery period.” Doc. 46 at 5. That is, Plaintiff
accuses Defendant of gamesmanship regarding settlement negotiations in order to avoid
depositions and to “run out the clock” on the discovery period. Doc. 46 at 2. This argument,
however, fails to provide good cause to protect Plaintiff from the depositions that Defendant did
eventually set.2 Indeed, Defendant provided timely notice of the depositions, as it served the
notices on February 24, 2026, setting the depositions for 14 and 15 days later (on March 10 and
11, 2026). See D.N.M. LR-Civ. 30.1 (“Service of notice of deposition in accordance with Fed. R.
Civ. P. 30(b) must be made at least fourteen (14) days before the scheduled deposition.”); see
also Doc. 13 at 1 n.1 (Scheduling Order, reminding parties that “[a] notice to take a deposition
shall be considered timely only if the deposition takes place prior to the discovery deadline,”—
i.e. before March 16).
However, Local Rule 30.1 also requires that “Counsel must confer in good faith
regarding scheduling of depositions before serving notice of deposition.” Here, it does not appear
that Defendant conferred with Plaintiff before unilaterally setting the March 10 and 11
depositions. Even so, the Court does not find that Defendant’s failure to confer justifies
prohibiting all together the otherwise timely-noticed depositions. Rather, the Court finds that the
appropriate remedy is to grant a limited, 30-day extension of the discovery deadline so that the
2 To the extent Plaintiff would argue that Defendant engaged in gamesmanship regarding
settlement negotiations in order to prevent Plaintiff from setting its own depositions prior to the
close of discovery, Plaintiff does not make this argument in response to Defendant’s motion for
protective order. Indeed, as discussed below, Plaintiff filed no response to Defendant’s motion.
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parties can confer and set the depositions of Alfredo Cortazar, Melinda Zak, and Cortazar
Laboratories.
Lastly, Plaintiff seeks a protective order regarding the topics of the Rule 30(b)(6)
deposition of Cortazar Laboratories, asserting that, “Plaintiff does not seek an order from the
Court providing that it need not respond to the fifteen categories at issue. Plaintiff’s request is
merely that the Court enter an Order requiring the parties . . . to confer regarding the deposition
topics.” Doc. 46 at 1. That is, although Plaintiff agrees to a Rule 30(b)(6) deposition, it argues
that “[g]iven the failure to confer, the short time frame and the list of topics, Plaintiff cannot
reasonably prepare witnesses to testify as to these matters in such a short time frame.” Id. at 5.
However, Defendant first served its notice of the Rule 30(b)(6) deposition on December
18, 2025 and the subsequent notice of the Rule 30(b)(6) deposition, served February 24, 2026,
included the exact same list of topics. Compare Doc. 48-3 at 6-7, with Doc. 48-1 at 10-11. As
Defendant points out, and as Plaintiff does not dispute, despite having notice of the Rule 30(b)(6)
topics since December 18, 2025, Plaintiff raised objections to the topics for the first time in its
motion for protective order, filed March 6, 2026. Thus, the Court does not find good cause to
issue a protective order as to the Rule 30(b)(6) deposition topics.
2. 	Defendant’s Motion for Protective Order
Defendant requests a protective order against the seven depositions Plaintiff noticed on
March 6, which were set for March 12, 13, and 16. Doc. 48. Plaintiff failed to respond to this
cross motion and therefore consents to grant the motion. See D.N.M. LR-Civ. 7.1(a). Further, the
Court finds good cause to grant the protective order given that Plaintiff only provided the
witnesses 6, 7, or 10 days’ notice. See D.N.M. LR-Civ. 30.1 (“Service of notice of deposition in
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accordance with Fed. R. Civ. P. 30(b) must be made at least fourteen (14) days before the
scheduled deposition.”).
CONCLUSION
For the reasons discussed above, the Court DENIES Plaintiff Cortazar Laboratories,
LLC’s Motion for Protective Order (Doc. 46) as follows:
 	The discovery deadline is extended to May 11, 2026 for the limited purpose of
scheduling the depositions of Alfredo Cortazar, Melinda Zak, and Cortazar Laboratories.
The parties should confer regarding the scheduling of depositions and, if they are unable
to reach agreements, Defendant may set the depositions, giving Plaintiff at least 14 days’
notice.
 	The deadline to file pretrial motions is extended to June 10, 2026.
Lastly, the Court GRANTS Defendant’s cross Motion for Protective Order (Doc. 48) as
to the depositions of First-Citizens, Larissa Byrd, Mike Mullinecks, Heather Biagi, Tiffany
Staples, Susan Griffith, and Geroge Sarantos, set for March 12, 13, and 16.
______________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge
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