UNITED STATES OF AMERICA, et al v. CITY OF EVANSVILLE, INDIANA
Filing
214
ORDER granting 203 Motion to Compel and Extend Deposition of Non-Party Witness. Third-Party Plaintiffs are hereby allowed four additional hours to complete Williams's deposition and are required to send a copy of the J.W. Armstrong audit to Williams at least seven (7) days before the deposition is taken. Signed by Magistrate Judge William G. Hussmann, Jr., on 9/5/2012. (NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
UNITED STATES OF AMERICA,
STATE OF INDIANA,
Plaintiffs,
vs.
THE CITY OF EVANSVILLE,
EVANSVILLE WATER & SEWER UTILITY
BOARD,
Defendants.
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No. 3:09-cv-00128-WTL-WGH
______________________________________________________________________
THE CITY OF EVANSVILLE,
EVANSVILLE WATER AND SEWER
UTILITY BOARD
Third-Party Plaintiffs,
vs.
ENVIRONMENTAL MANAGEMENT
CORPORATION,
Third-Party Defendant.
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ORDER ON THIRD-PARTY PLAINTIFFS’ MOTION TO COMPEL AND EXTEND
DEPOSITION OF NON-PARTY WITNESS
This matter is before the Honorable William G. Hussmann, Jr., United States
Magistrate Judge, on Third Party Plaintiffs’, City of Evansville and Evansville Water and
Sewer Utility Board (“Third-Party Plaintiffs” or collectively “the City”), Motion to Compel and
Extend the Deposition of Third Party Witness, Tom Williams filed July 18, 2012. (Docket
No. 203). Williams filed a Response on August 2, 2012. (Docket No. 208). Defendant filed
his reply brief on August 7, 2012. (Docket No. 211).
I.
Background
Williams, as EMC’s project manager for EMC starting in October 2006
(Deposition of Tom Williams (“Williams Dep.”) at 9), was deposed on July 11, 2012
pursuant to Federal Rule of Civil Procedure 30 (“Rule 30”). (Third-Party Plaintiffs’
Motion to Compel ¶ 12). Williams testified under oath for a total of seven hours, which
is the presumptive limit for an oral deposition. FED. R. CIV. P. 30(d)(1). During and
after the deposition, the City’s counsel asked to extend the deposition time; Williams’s
counsel refused the City’s request. (Third-Party Plaintiffs’ Motion ¶¶ 4-5). Williams’s
counsel declined City’s request to participate in a telephonic status conference before
Magistrate Hussmann on July 13 (Id. at ¶ 6), at which point the City filed this Motion.
II.
Discussion
Rule 30(d)(1) was changed in 2000 to establish the presumptive limit of one day
for seven hours. To rebut this presumption, the moving party must show that good
cause exists to depose a witness beyond seven hours. Id. at Advisory Comment (2000
Amendment Subdivision (d)). Also, the court must grant additional time in a manner
consistent with Rule 26(b)(2) if the extra time is needed to fairly examine the deponent
or “the deponent, another person, or any other circumstance impedes or delays the
examination.” Id. Even if good cause is found, the court must limit the additional time if
it determines that the party seeking additional discovery has had ample opportunity to
obtain the information, the burden of the proposed discovery outweighs its likely benefit,
the discovery is unreasonably cumulative or duplicative, or it can be obtained through
“some other source that is more convenient, less burdensome, or less expensive.” FED.
R. CIV. P. 26(b)(2)(C). See Edsall v. CSX Transp., Inc., 2007 WL 1385386 (N.D. Ind.,
May 8, 2007).
A. Good Cause
Before this court can engage in the balancing test dictated by Rule 26(b) in
deciding whether to permit additional discovery, the City must demonstrate good cause;
failure to do so means that the City’s motion must be denied. See Wright and Miller, 8A
Fed. Prac. & Proc. Civ. § 2104.1 (3d ed.). The City argues good cause exists to extend
Williams’s deposition for three reasons, which we discuss in turn.
1. Williams is a vital material witness
The City claims that Williams “possesses information that the City has reason to
believe is otherwise unavailable.” (Third Party Plaintiffs’ Motion ¶ 10(a)). It further
claims that other EMC current or former employees have stated Williams is one of the
most significant, if not the most significant, witnesses regarding technical matters.
(Third Party Plaintiffs’ Reply at 3). Furthermore, the City alleges, Williams was the top
operational employee for EMC during the relevant time period, and he was the Project
Manager of EMC’s Evansville operations during the time when all the alleged damages
took place. (Id. at 4, citing Third Party Plaintiffs’ Motion ¶ 10(b)). Williams does not
claim he was not in charge of EMC’s Evansville operations for at least the period of late
2006 through 2010, when the alleged damages took place. It is reasonable to infer that,
due to his position, he is the person best situated, and perhaps possessing unique
knowledge, to answer questions about EMC’s practices in Evansville in the context of a
factually complex, multi-party case. See, e.g., In re Intel Corp. Microprocessor Antitrust
Litig., 2008 WL 5377979, at *3 (D. Del. Dec. 18, 2008). The City has therefore shown
good cause that he is a material witness for whom additional deposition time is required.
2. Length of time covered by case and multitude of documents, facts,
and legal issues
Plaintiffs then claim that the length of time covered by the claims, the fact that
Williams was working there for almost that entire time (seven years), and “the sheer
volume of documents, facts and legal issues involved, each militates in favor of
extending Mr. Williams’s deposition.” (Third Party Plaintiffs’ Brief at ¶ 10(b)).
Allegations of damages spanning many years is a potential justification for allowing
additional time. FED. R. CIV. P. 30(d) at Advisory Comment (2000 Amendment
Subdivision (d)), see Harris v. Miracle Appearance Recording Specialists Int’l, Inc., 2007
WL 2749434, at *1 (S.D. Ind. Sept. 20, 2007).
Plaintiffs in this case have pointed to several areas essential to the City’s breach
claims in which the City claims it was unable to examine Williams. These include: “the
extent of sewer cleaning done by EMC over the course of the Management Agreement,
EMC’s status under and compliance history with the NPDES permits for the Evansville
wastewater treatment plans, and EMC’s response to a request-for-proposals (‘RFP’)
made by the City toward the end of EMC’s tenure.” (Id.) Williams states that his tenure
with EMC in Evansville was only from October 2006-March 2010, and that “[t]his much
shorter relevant employment history does not justify an extension of time beyond the
presumptive limit.” (Williams Response at 5). However, given that the alleged
damages all occurred during Williams’s tenure as Project Manager, and that time did
stretch over several years, this court concludes the City has shown good cause for
additional deposition time on this issue.
3. Unresolved issues from initial deposition
City cites three unresolved important issues from Williams’s deposition that
necessitate Williams being re-disposed. (Third Party Plaintiffs’ Motion ¶ 10(c)). City
claims Williams was not prepared to answer questions regarding a contract compliance
audit of EMC’s Evansville operations when he was project manager. (Id). Williams, on
advice of personal and EMC counsel, refused to answer questions concerning his
severance agreement with EMC and December 2009 meetings involving American
Water and EMC personnel, respectively. (Id). With respect to the first claim, Williams
denies that he was unprepared to answer questions and states that he was never sent
any documents by the City that could have otherwise prepared him to testify on this
issue. (Williams’s Response 6). Williams was the top EMC Evansville employee during
the 2008 audit (Third Party Plaintiffs’ Motion ¶ 2), so the parties’ interests are wellserved by Williams testifying about this issue. Williams correctly states that Rule 30
encourages the deposing party to submit documents ahead of time to the deponent if
the deposing party would like the deponent to familiarize herself with the material. (Id.,
citing FED. R. CIV. P. 30(d) at Advisory Comment (2000 Amendment Subdivision (d)).
This court therefore requires that City sends copies of R.W. Armstrong’s audit to
Williams at least seven (7) days in advance of his deposition.
For the second claim, production of the severance agreement by EMC (Williams
Response 6) is a necessary but not sufficient condition for blocking further deposition
time. Given the length of Williams’s employment with EMC and the importance of his
position there, it is reasonable to allow City to probe Williams on issues of bias and
credibility beyond what is on the face of the severance agreement. Williams, as project
manager (Williams’s Deposition 35-37) similarly has a unique perspective regarding the
meeting with American Water that cannot be equaled simply by deposing another EMC
employee (e.g., Mr. McDonogh) who was at the meeting, as Williams suggests.
(Williams Response 6). The City has therefore shown good cause on these issues, too.
B. Whether additional deposition time constitutes an undue burden on
Williams
With the City having established good cause, the court must now consider
whether granting the additional discovery would constitute an undue burden on
Williams. FED. R. CIV. P. 26(b)(2)(C). The city has shown that Williams is a vital
witness with unique information and perspective stemming from his tenure as the
project manager for EMC in Evansville. Thus, additional deposition time is unlikely to
be duplicative of other methods of discovery, nor could the information be easily
obtained through another discovery method. (Id). Williams still resides in the Evansville
area, is incurring no out-of-pocket legal fees, and the City is allowing him to choose any
date within the next month to continue the deposition. (Third Party Plaintiffs’ Motion ¶
11). The benefit of allowing the City four additional hours to depose such an important
witness outweighs the burden to Williams, even bearing in mind that he is a non-party.
In Harris, a multi-party, multi-year case, the judge ruled it would be reasonable to
slightly modify the allowed deposition time (an additional five hours across three
witnesses) over the presumptive limit. 2007 WL 274934 at *1. The extension of four
hours would qualify as a slight modification.
Finally, the court does not find Williams’s argument that the City wasted time
during the deposition persuasive. (Williams’s Response 4-5). As the City states, the
one hour and fifteen minutes spent on the never-built north treatment plant is at the
heart of City’s claim that EMC’s performance grew worse after the City decided not to
build the plant. (Third Party Plaintiffs’ Reply 2). The court is similarly persuaded that
City asking Williams to read e-mails into the record and Williams’s interpretation of them
was not frivolous, since the e-mails related “to matters at the heart of the underlying
claims and contentions.” (Id).
III.
Conclusion
For the foregoing reasons, City’s Motion to Compel and to Extend Deposition of
non-party witness Tom Williams is GRANTED, the City having shown good cause for its
motion and this court finding the additional discovery not to be unduly burdensome on
Williams. Third-Party Plaintiffs are hereby allowed four additional hours to complete
Williams’s deposition and are required to send a copy of the J.W. Armstrong audit to
Williams at least seven (7) days before the deposition is taken.
SO ORDERED.
Dated: 09/05/2012
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
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