Gammon v. Fedex Ground Package Systems Inc

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAZMINE CHANTEL GAMMON, )
)
Plaintiff, )
)
v. ) Case No. CIV-24-1317-G
)
FEDEX GROUND PACKAGE )
SYSTEMS, INC., )
)
Defendant. )
ORDER
Plaintiff Jazmine Chantel Gammon herein brings federal and state-law employment
discrimination claims against Defendant FedEx Ground Package Systems, Inc. See Am.
Compl. (Doc. No. 21). Now before the Court are several pending Motions (Doc. Nos. 29,
32, 37) filed by Plaintiff. Defendant has responded (Doc. Nos. 30, 36, 39), Plaintiff has
submitted two Replies (Doc. Nos. 31, 40), and the Motions are now at issue.
I. Plaintiff’s Motion Regarding Expert Testimony
On September 20, 2025, Plaintiff identified Ahmed B. Buksh, DPM, as her treating
physician and retained expert in this matter. See Pl.’s Expert Disclosure (Doc. No. 28);
Buksh Report (Doc. No. 28-1); Fed. R. Civ. P. 26(a)(2).
Plaintiff now requests that she be permitted to use Dr. Buksh’s deposition testimony
at trial, in lieu of Dr. Buksh appearing to present live testimony. See Pl.’s Mot. (Doc. No.
29) at 1 (citing Fed. R. Civ. P. 32(a)(4)(B)). Plaintiff, who is appearing pro se, argues that
she has limited financial resources and “is unable to afford Dr. Buksh’s full-day appearance
at trial.” Id. Plaintiff further asserts that Dr. Buksh agreed to proceed with a deposition
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because it would be less disruptive to his surgical and patient-care schedule than appearing
for trial and that this arrangement would allow Defendant to “retain[] the full opportunity
to cross-examine the expert during the deposition.” Pl.’s Reply (Doc. No. 31) at 1-2.
Defendant opposes Plaintiff’s request, arguing that Plaintiff fails to show
exceptional circumstances warranting such relief or sufficiently establish an inability to
secure the expert’s trial appearance. See Def.’s Resp. (Doc. No. 30) at 1-2.
Pursuant to Rule 32(a)(4)(E), “[a] party may use for any purpose the deposition of
a witness” if the court finds, “on motion and notice, that exceptional circumstances make
it desirable—in the interest of justice and with due regard to the importance of live
testimony in open court—to permit the deposition to be used.” Fed. R. Civ. P. 32(a)(4)(E).
The party invoking the Rule bears the burden of showing that “exceptional circumstances”
are present. See Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 963 (10th Cir.
1993). “[T]he ‘exceptional circumstances’ must be a reason the deponent cannot appear,
not merely serious prejudice that would result if the court did not admit the deposition
testimony.” Id. at 963-64.1
While sympathetic to Plaintiff’s position, the Court finds that the requirements of
Rule 32(a)(4)(E) have not been met. The trial in this case is still more than six months
1 The preference for witnesses’ testimony being “taken in open court” is also reflected in
Federal Rule of Civil Procedure 43:
The very ceremony of trial and the presence of the factfinder may exert a powerful
force for truthtelling. The opportunity to judge the demeanor of a witness face-to-
face is accorded great value in our tradition.
Fed. R. Civ. P. 43(a); id. advisory committee’s note to 1996 amendment.
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away, and the Court expects the parties to work together to minimize the amount of time
any witness—including Dr. Buksh—will need to be present. Cf. Allgeier v. United States,
909 F.2d 869, 876 (6th Cir. 1990) (finding no cases to support a finding of a “federal
practice to regard doctors as ‘automatically unavailable’”). Plaintiff is not proceeding in
forma pauperis and has discretion over her choice of expert. And because Defendant can
obtain Dr. Buksh’s deposition if it chooses, Plaintiff can put those funds toward paying for
Dr. Buksh’s trial time instead. For these reasons, the Court denies Plaintiff’s Motion.
II. Plaintiff’s Motion for Protective Order
In Plaintiff’s Motion for Protective Order (Doc. No. 32), Plaintiff objects that
Defendant noticed Plaintiff’s deposition “without first resolving outstanding discovery
disputes or producing critical documents and information necessary for Plaintiff to
adequately prepare.” Id. at 1. Plaintiff requests that the Court stay or quash the noticed
deposition until Defendant has fully responded to Plaintiff’s outstanding discovery
requests. See id. at 1-2.
Defendant first responds that it has withdrawn the challenged deposition notice.
See Def.’s Resp. (Doc. No. 36) at 1. Accordingly, this aspect of the Motion is moot.
Defendant additionally argues that the parties’ discovery disputes or any
outstanding responses do not permit Plaintiff to avoid deposition. See id. at 1-2 (citing
Fed. R. Civ. P. 26(d)(3)). The Court concurs, as it is well established that, absent
stipulation or a court order, “discovery by one party does not require any other party to
delay its discovery.” Fed. R. Civ. P. 26(d)(3); accord Liguria Foods, Inc. v. Griffith
Laboratories, Inc., 320 F.R.D. 168, 183 (N.D. Iowa 2017) (“[A] party cannot delay
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responding to discovery simply because the other party has not yet responded to its
discovery.”). And Defendant may depose Plaintiff without leave of the Court pursuant to
Federal Rule of Civil Procedure 30(a)(1).
Plaintiff’s Motion for Protective Order shall therefore be denied. The Court
declines to award any payment of expenses.
III. Plaintiff’s Motion to Compel
Plaintiff moves to compel Defendant to provide substantive responses to certain of
Plaintiff’s discovery requests: Interrogatory Nos. 10, 11, 12, 17, 18, 19, 20, and 21; and
Request for Production Nos. 5, 10, 16, 18, 19, and 26. See Pl.’s Mot. to Compel (Doc.
No. 37) at 1-2; Pl.’s Reply (Doc. No. 40) at 1-3.
In response, Defendant argues that, while the parties met and conferred regarding
some of these requests, others were not addressed at the parties’ personal conference on
October 28, 2025. See Def.’s Resp. (Doc. No. 39) at 4-5, 7-8. Defendant also argues that
its objections to Plaintiff’s requests were proper and that Plaintiff’s Motion should be
denied on the merits. See id. at 8-15. Plaintiff disputes Defendant’s characterization of
their meet-and-confer, as well as Defendant’s arguments regarding the discovery
objections. See Pl.’s Reply at 1-3.
Without making any finding as to which party is correct regarding their previous
conference, the Court concludes that, given the clear disagreement and the Court’s recent
granting of the parties’ request for an extension of all deadlines, it is in the interest of justice
for the parties to “personally . . . m[eet] and confer[] in good faith” in “a sincere attempt to
resolve differences” as to Plaintiff’s now-narrowed discovery requests. LCvR 37.1; see
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also Fed. R, Civ. P. 37(a)(1). If this attempt to reach an accord without Court action is
unsuccessful, Plaintiff may re-urge her motion to the Court. The Court declines to award
expenses at this time.
CONCLUSION
For the foregoing reasons:
Plaintiff’s Motion (Doc. No. 29) is DENIED. Plaintiff’s Motion for Protective
Order (Doc. No. 32) is DENIED.
Plaintiff’s Motion to Compel (Doc. No. 37) is DENIED without prejudice.
Plaintiff and Defendant’s counsel are directed to personally MEET AND CONFER, within
twenty-one (21) days, regarding any requests for which Plaintiff still seeks to move for an
order compelling discovery from Defendant.
IT IS SO ORDERED this 18th day of February, 2026.
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