Waste Management of Louisiana, L.L.C. v. River Birch, Inc. et al

Filing 281

ORDER: ORDERED that 267 Motion for Protective Order Order Concerning Certain Proposed Rule 30(b)(6) Deposition Topics is GRANTED IN PART and DENIED IN PART. FURTHER ORDERED that the motion is GRANTED as to Topics 6 and 7.FURTHER ORDERED that the Defendants may amend its proposed Rule 30(b)(6) deposition topics for the limited purpose of including a topic related to the alleged bribery in relation to Ray Nagin or Orleans Parish.FURTHER ORDERED that the motion is DENIED AS MOOT as to Topic 27. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT OF LOUISIANA,
LLC

CIVIL ACTION

VERSUS

NO:

RIVER BIRCH, INC. ET AL

SECTION: “N” (4)

11-2405

ORDER
Before the Court is a Motion for Protective Order Concerning Certain Proposed Rule
30(b)(6) Deposition Topics (R. Doc. 267) filed by the Plaintiff Waste Management of Louisiana,
LLC seeking an order from the Court preventing the Defendants from taking the deposition of the
Plaintiff in relation to three topic areas. The motion is opposed. R. Doc. 269. The motion was
submitted on June 28, 2017 and heard with argument that same day. For the following reasons, the
motion is GRANTED IN PART AND DENIED IN PART.
I.

Background
This action was filed in the District Court on September 23, 2011. R. Doc. 1. Waste

Management of Louisiana, LLC (“Plaintiff”) alleges that the Defendants have engaged in a longrunning conspiracy to limit and exclude competition for landfill disposal services in and around
New Orleans, Louisiana. R. Doc. 140, p. 1. The Defendants in this action are: River Birch, Inc.,
the owner and operator of River Birch landfill; Highway 90 LLC, who owns Highway 90 landfill;
Frederick Heebe, the owner of Shadow Lake Management, Co., which is the parent corporation of
River Birch, Inc.; and Albert Ward, who is the father-in-law of Heebe, and former President of
River Birch, Inc. and Manager of Highway 90 LLC (collectively “Defendants”). In particular, the
Plaintiff states that it suffered direct injury as a result of the Defendants actions in at least two
instances: the premature closure of the Chef Menteur landfill in 2006 as part of a scheme to transfer
more Hurricane Katrina clean-up debris to River Birch’s landfill; and the efforts to prematurely

oust the Plaintiff as operator of the Jefferson Parish landfill as part of a scheme to transfer the
Parish’s municipal solid waste to River Birch landfill under an exclusive 25-year contract. Id. at
p. 2. As such, the Plaintiff has alleged two counts of violations under Federal Racketeer Influenced
and Corrupt Organizations (“RICO”) Sections 1962(c) and Section 1962(d). Id. at p. 39-42.
At this time, the Plaintiff has filed a motion for protective order relating to three proposed
topics for the 30(b)(6) deposition of the Plaintiff. R. Doc. 267. The Plaintiff argues that Topics 6
and 7—which discuss the factual bases for the Plaintiff’s RICO statement and Third Amended
Complaint—are overbroad, seek legal conclusions, and are duplicative of prior discovery. R. Doc.
267-1, p. 6-9. The Plaintiff further argues that Topic 27—which discusses the causation of the
denial of the Two Rivers Landfill permit—is irrelevant and disproportionate to the needs of this
case. Id. at p. 9-10.
The Defendants oppose the motion. R. Doc. 269. The Defendants argue that Topics 6 and
7 are reasonably particular and are not unreasonably cumulative, burdensome, or duplicative. Id.
They further argue that Topic 27 is relevant given the Plaintiff’s own allegations that the
Defendants engaged in a RICO conspiracy to disadvantage competitor landfills such as Two
Rivers. Id. at p. 11-12.
II.

Standard of Review
“Rule 30(b)(6) allows parties to obtain testimony from a corporation, provided the party

describes with reasonable particularity the matters for examination.” Mike Hooks Dredging Co.,
Inc. v. Eckstein Marine Service, Inc., No. 08-3945, 2011 WL 2559821, at *1 (E.D. La. June 28,
2011) (Berrigan, J.) (citing Fed. R. Civ. P. 30(b)(6)). Thereafter, 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.” Fed. R. Civ. P. 30(b)(6); id.; see also, Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416,
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433 (5th Cir. 2006) (quoting 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure § 2103, at 33 (2d ed.1994)) (“‘Obviously it is not literally possible to take
the deposition of a corporation; instead . . . the information sought must be obtained from natural
persons who can speak for the corporation.’”).
As the Fifth Circuit has explained:
the deponent must make a conscientious good-faith endeavor to designate the
persons having knowledge of the matters sought by [the party noticing the
deposition] and to prepare those persons in order that they can answer fully,
completely, unevasively, the questions posed ... as to the relevant subject matters.
[T]he duty to present and prepare a Rule 30(b)(6) designee goes beyond matters
personally known to that designee or to matters in which that designee was
personally involved. The deponent must prepare the designee to the extent matters
are reasonably available, whether from documents, past employees, or other
sources.
Brazos River Auth., 469 F.3d at 433 (internal quotations and citations omitted).
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.”
Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible
in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be “proportional
to the needs of the case, considering the important 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.” Id.
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity
to obtain the discovery sought; or (3) the proposed discovery is outside of the scope permitted
under Rule 26(b)(1).
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Finally, Rule 26(c) governs the issuances of Protective Orders in discovery. A 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)(1). The rule offers a variety of
potential options that the Court may use to protect the moving party, including forbidding or
limiting the scope of discovery into certain matters or requiring that a trade secret or other
confidential commercial information not be revealed or be revealed in only a certain way. Fed. R.
Civ. P. 26(c)(1)(D), (G). “The party seeking the protective order bears the burden to show ‘the
necessity of its issuance, which contemplates a particular and specific demonstration of fact[.]’”
Cazaubon v. MR Precious Metals, LLC, 14-2241, 2015 WL 4937888, at *2 (E.D. La. Aug. 17,
2015) (quoting In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998)). The trial court enjoys wide
discretion in setting the parameters of a protective order. See Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984) (“To be sure, Rule 26(c) confers broad discretion on the trial court to decide
when a protective order is appropriate and what degree of protection is required.”). Finally, Rule
26(c)(1) requires a certification that the moving party has conferred or attempted to confer in good
faith with the other affected party to attempt to resolve the issue without the court’s interference.
III.

Analysis
The Plaintiff has filed the instant motion to compel seeking an order from the Court

preventing the Defendants from taking the deposition of the Plaintiff in relation to three topic areas.
In particular, the Plaintiff seeks an order relating to:
6. The factual basis for the allegations contained in [the Plaintiff’s] RICO
Statement.
7. The factual basis for the allegations contained in [the Plaintiff’s] Third
Amended Complaint…
27. The factual basis for the allegations that the Two Rivers Landfill was never
permitted to open as a result of the conduct of the Defendants.
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R. Doc. 267-3; 267. The Plaintiff argues that Topics 6 and 7 are overly broad, duplicative of prior
discovery, and burdensome. Moreover, the Plaintiff also argues that these topics call for legal
conclusions. And, as to Topic 27, the Plaintiff argues that the topic is irrelevant and disproportional
to the needs of the case. The Defendants challenge these contentions.
First, as to Topics 6 and 7, the Court finds that they are overly broad as written. Under
Federal Rule of Civil Procedure 30(b)(6), the Defendant must state with “reasonable particularity”
the matters that will be explored during the deposition. By simply referring generally to the
Plaintiff’s RICO statement and its Third Amended Complaint without any distinction as to specific
allegations, the Defendant has not provided reasonably particularized notice such that the Plaintiff
can meet its obligation to prepare its representative. See TV Interactive Data Corp. v. Sony Corp.,
No. C10-475, 2012 WL 1413368, at *1 (N.D. Cal. April 23, 2012) (“The Court agrees that Topic
Number 52 is too vague since it seeks the production of a corporate witness regarding all facts and
contentions for each of Funai's affirmative defenses and counterclaims.”). The Court grants the
motion as to Topics 6 and 7.
However, during oral argument, the Defendants indicated that, while most other topics
covered the information they sought, that no other topic covered the factual bases for allegations
related to alleged bribery in relation to Ray Nagin or Orleans Parish. Finding that this information
is relevant and appropriate for deposition, the Court grants leave to the Defendants to amend its
proposed Rule 30(b)(6) deposition topics for the limited purpose of including a topic related to the
alleged bribery in relation to Ray Nagin or Orleans Parish similar to the Topic 34. 1 Upon
questioning by the Court, counsel for the defendant agreed to pay for travel costs of the 30(b)(6)
witness who testified previously about the Orleans Parish Topics.

1

Topic 34 reads: “The factual basis for the claim that the Defendants bribed a Jefferson Parish official,
what the alleged bribe was, and which official Plaintiff contends was bribed, and when.” R. Doc. 267-3, p. 4.
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Because the Court finds the Topics to be overly broad, the Court need not determine if the
30(b)(6) deposition is the most appropriate discovery vehicle to explore the factual bases of
complaints at this time. However, should the Court find the request is not overly broad, there is no
reason to refuse to allow the Defendants to conduct discovery in the manner they see fit provided
that the discovery falls within the scope of Rule 26(b). See Malibu Consulting Corp. v. Funair
Corp., 2007 WL 3995913, at *1 (W.D. Tex. Nov. 14, 2007) (“Rule 26(d) allows those methods of
discovery to be used in any sequence. Although there is authority to the contrary, I agree with the
line of cases which holds that a Rule 30(b)(6) deposition which seeks information concerning the
factual support for allegations found in the complaint, which would be discoverable through
contention interrogatories. . .is permissible.”); United States E.E.O.C. v. Caesars Entm’t, Inc., 237
F.R.D. 428, 435 (D. Nev. 2006) (“The court denies the defendant's request to require the use of
contention interrogatories in lieu of a Rule 30(b)(6) deposition on the areas of examination in
dispute here….The affirmative defenses are obviously legal in nature, but the facts which support
them are not.”); Security Ins. Co. of Hartford v. Trustmark Ins., Co., 218 F.R.D. 29, 34 (D. Conn.
2003) (“It is of no consequence that contention interrogatories may be the more appropriate route
to obtain the information as nothing precludes a deposition either in lieu of or in conjunction with
such interrogatories.”).
Finally, in regards to Topic 27, the Plaintiff argues that it “takes no position on whether
Defendants caused the Two Rivers permit to be denied nor is it a fact Waste Management will
seek to prove.” R. Doc. 267-1, p. 9. Rather, the Plaintiff claims that it will only seek to prove that
the Defendants “engaged in a RICO conspiracy that had as its object to disadvantage other actual
or potential competitor landfills (including Two Rivers).” Id. In response, the Defendants appears
to argue that the Plaintiff is essentially protesting too much and that it should allow the inquiry
into this area or agree to forgo mentioning Two Rivers during trial.
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During oral argument, the counsel for the Plaintiff represented that it had no individual
within Waste Management with personal knowledge concerning the Two Rivers Landfill. Counsel
further conceded that the evidence the Plaintiff does have is circumstantial in nature from reading
the plea of Henry Mouton and also direct evidence obtained from the Defendants. The Defendants
stated that they were satisfied with this representation. Finding the disagreement between the
parties as to this topic to be moot, the Court denies the motion as moot as to Topic 27.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Plaintiff’s Motion for Protective Order Concerning Certain

Proposed Rule 30(b)(6) Deposition Topics (R. Doc. 267) is GRANTED IN PART AND
DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED as to Topics 6 and 7.
IT IS FURTHER ORDERED that the Defendants may amend its proposed Rule 30(b)(6)
deposition topics for the limited purpose of including a topic related to the alleged bribery in
relation to Ray Nagin or Orleans Parish.
IT IS FURTHER ORDERED that the motion is DENIED AS MOOT as to Topic 27.
New Orleans, Louisiana, this 30th day of June 2017.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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