ALBERT v. DRS TECHNOLOGIES, INC.
Filing
88
ORDER denying 83 Plaintiff's Motion to compel. Signed by Magistrate Judge Thomas B. Smith on 8/17/2012. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HEIKE ALBERT,
Plaintiff,
v.
Case No. 6:11-cv-869-ORL-36TBS
DRS RSTA, INC.,,
Defendant.
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ORDER
This cause is before the Court without oral argument on Plaintiff’s Motion to
Compel (Doc. 83) and Defendant, DRS RSTA, Inc.’s Response to Plaintiff, Heike
Albert’s Motion to Compel and Incorporated Memorandum of Law (Doc. 87). For the
following reasons, the motion to compel is due to be denied.
I. Background
Plaintiff was employed by Defendant from October 1, 2007 until she was
terminated effective January 23, 2009. (Doc. 49). In this action, Plaintiff alleges she
was the victim of gender-based discrimination and retaliation in violation of 42 U.S.C.
§ 2000e-2(a); 42 U.S.C. § 2000e-3(a); and §§ 760.10 (1) and (7) Florida Statutes.
(Id.) Defendant denies liability and has alleged fourteen affirmative defenses. (Doc.
51).
On June 28, 2012, Plaintiff served her Fed.R.Civ.P. 30(b)(6) notice of taking
the Defendant’s deposition on four topics. (Doc. 87).1 Defendant objected to the
1
Hereafter, unless another source is indicated, all of the facts in this Order are drawn from
Defendant, DRS RSTA, Inc.’s response to the motion to compel (Doc. 87).
following two topics on the grounds that they were vague, ambiguous, and overbroad:
1. The facts and reasoning underlying each and every denial
and defense by you in your most recent Answer in this case
which facts, in your opinion, are materially relevant to your
defense.
***
4. Any and all reviews, investigations, and other activities
relating to Plaintiff.
Counsel conferred and Defendant’s lawyer said he was prepared to produce
witnesses to testify in response to Topics 2 and 3, about which no objection had been
made. However, Defense counsel told Plaintiff he was not prepared to produce
witnesses in response to Topic 1 because it does not identify which of Defendant’s
denials and affirmative defenses witnesses would be questioned on. Defense
counsel advised Plaintiff that he objected to Topic 4 because it fails to specify the
nature of the “reviews, investigations, and other activities” about which Defendant’s
witnesses should be knowledgeable. Plaintiff refused to provide clarification on either
Topic.
On July 31, 2012, Defendant produced two corporate representatives for
deposition. Plaintiff’s lawyer questioned the first witness for less than an hour. Ten
minutes prior to the start of the deposition of the second witness, Plaintiff’s attorney
said he had what he needed and would not be deposing the second witness. Plaintiff
subsequently filed the pending motion to compel Defendant to produce a witness to
testify in response to Topic 1. (Doc. 83).
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II. Discussion
Federal Rule of Civil Procedure 30(b)(6) provides:
(6) Notice or Subpoena Directed to an Organization. In its notice or
subpoena, a party may name as the deponent a public or private
corporation, a partnership, an association, a governmental agency, or
other entity and must describe with reasonable particularity the matters
for examination. The named organization must then designate one or
more officers, directors, or managing agents, or designate other persons
who consent to testify on its behalf; and it may set out the matters on
which each person designated will testify. A subpoena must advise a
nonparty organization of its duty to make this designation. The persons
designated must testify about information known or reasonably available
to the organization. This paragraph (6) does not preclude a deposition
by any other procedure allowed by these rules.
Rule 30(b)(6) imposes obligations on the proponent of the discovery and the
responding party. “The party seeking discovery must describe the matters with
reasonable particularity and the responding corporation or entity must produce one or
more witnesses who can testify about the corporation’s knowledge of the noticed
topics.” QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688
(S.D.Fla. 2012) (citing Great Am. Ins. Co. v. Vegas Constr. Co., Inc., 251 F.R.D. 534,
539 (D.Nev. 2008)). “The purpose of the reasonable particularity requirement is to
allow the business to identify a witness or witnesses who possesses knowledge
responsive to the subjects identified in the Rule 30(b)(6) notice.” Catt v. Affirmative
Ins. Co., No. 2:08-cv-243-JVB-PRC, 2009 WL 1228605 at *7 (N.D.Ind. Apr. 30, 2009).
In the Middle District of Florida, counsel are advised that “[a] notice or
subpoena to an entity, association, or other organization should accurately and
concisely identify the designated area(s) of requested testimony, giving due regard to
the nature, business, size, and complexity of the entity being asked to testify.” Middle
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District Discovery (2001) at II.A.4. “A responding party or witness, who is unclear
about the meaning and intent of any designated area of inquiry, should communicate
in a timely manner with the requesting party to clarify the matter so that the deposition
may proceed as scheduled. The requesting party is obligated to provide clarification
sufficient to permit informed, practical, and efficient identification of the proper
witness.” Id.
The expansive request in Topic 1 does not describe “with reasonable
particularity the matters for examination.” Rule 30(b)(6). Topic 1 encompasses
approximately thirty denials and fourteen affirmative defenses. There is nothing
concise or accurate about this designation and when Defendant’s lawyer asked in
advance of the deposition, Plaintiff’s lawyer refused to provide clarification.
Topic 1 also instructs Defendant to produce a deponent to testify concerning
“which facts, in [Defendant’s] opinion, are materially relevant to [Defendant’s]
defense.” Although the scope of discovery is broad, there are limits. In Hickman v.
Taylor, the Supreme Court recognized the work product privilege, observing that “it is
essential that a lawyer work with a certain degree of privacy, free from unnecessary
intrusion by opposing parties and their counsel.” 329 U.S. 495, 510-11 (1947).
The work product privilege is codified in Rule 26(b)(3) of the Federal Rules of
Civil Procedure and protects two types of work product. First is fact work product
which consists of “documents and tangible things . . . prepared in anticipation of
litigation or for trial by or for another party or by or for that other party’s representative
. . . .” FED. R. CIV. P. 26(b)(3); Pepper’s Steel, 132 F.R.D. 695, 697 (S.D. Fla. 1990).
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Second is work product consisting of “mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party concerning the
litigation.” Pepper’s Steel, 132 F.R.D. at 698. This is known as “opinion work
product.” Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.
1994). “[O]pinion work product enjoys a nearly absolute immunity and can be
discovered only in very rare and extraordinary circumstances.” Id. (quoting In re
Murphy, 560 F.2d 326, 336 (8th Cir. 1977)). The party asserting the work product
privilege has the burden of demonstrating that the information sought warrants such
protection. Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003); Jackson v.
Geometrica, No. 304CV640J20HTS, 2006 WL 510059, at *1 (M.D. Fla. Mar. 2, 2006);
Chase v. Nova Southeastern Univ., Inc., No. 11-61290-CIV, 2012 WL 2285915, at *4
(S.D. Fla. June 18, 2012).
If the Defendant was required to produce a witness in response to Topic 1, it
would necessarily have to divulge its legal theories and positions on the issues and
how Defendant’s counsel intend to marshal the facts to support Defendant’s position.
This information is opinion work product which is protected by the work product
privilege. EEOC v. McCormick & Schmick’s Seafood Restaurants, Inc., Civil Action
No. WMN-08-CV-984, 2010 WL 2572809, at *4 (D. Md. June 22, 2010).
Accordingly, Plaintiff’s Motion to Compel (Doc. 83) is DENIED.
IT IS SO ORDERED.
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DONE AND ORDERED in Orlando, Florida, on August 17, 2012.
Copies to all Counsel
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