Shapiro v. McManus

Filing 145

MEMORANDUM AND ORDER granting 118 Motion for Protective Order from Rule 30(b)(6) deposition notice by Linda H. Lamone, David J. McManus, Jr.; the notice issued by Plaintiffs under Rule 30(b)(6) is QUASHED. Signed by Judge James K. Bredar on 2/14/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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O. JOHN BENISEK et al..,

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Plaintiffs

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v.

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LINDA H. LAMONE et al..,
Defendants
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CIVIL NO. JKB-13-3233

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MEMORANDUM AND ORDER
Pending before the Court is the motion by Defendants Linda H. Lamone and David J.
McManus, Jr., for a protective order from depositions noticed under Federal Rule of Civil
Procedure 30(b)(6). (ECF No. 118.) Plaintiffs’ opposition (ECF No. 131) and Defendants’ reply
(ECF No. 134) have been considered, and no hearing is necessary, Local Rule 105.6 (D. Md.
2016). The motion will be granted.
Rule 30(b)(6) states in regard to a notice or subpoena for a deposition, that the issuing
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.
The “Notice of Deposition Pursuant to Fed. R. Civ. P. 30(b)(6)” at issue states in
pertinent part, “Plaintiffs shall take the deposition by oral examination of Defendants by one or

more officers, directors, managing agents, or other persons who are designated to testify on
Defendants’ behalf with respect to the categories listed in Schedule A.” (Defs.’ Mot. Ex. 3, ECF
No. 118-3.) The only two defendants in the case are David J. McManus, Jr., and Linda H.
Lamone, who are sued in their official capacities as Chairman of the Maryland State Board of
Elections and State Administrator of Elections, respectively. Neither McManus nor Lamone is
“a public or private corporation, a partnership, an association, a governmental agency, or other
entity” within the context of Rule 30(b)(6).

It is anomalous to notice a deposition of an

individual defendant “by one or more officers, directors, managing agents, or other persons who
are designated to testify” on behalf of the individual defendant.

An individual defendant,

whether or not sued in official capacity, testifies on his or her own behalf, unless testifying as a
Rule 30(b)(6) designee for an entity deponent. It is inappropriate for Plaintiffs to rely upon the
mechanism of Rule 30(b)(6) to notice the depositions of McManus and Lamone.
Besides that obvious infirmity, and even if one construes the notice as one to the State
Board of Elections, Plaintiffs have significantly overreached by indicating that the designee is
expected to testify as to the knowledge possessed by the “Relevant Individuals,” who are listed
in the notice as
You, members of the GRAC,[1] members of the General Assembly, the
Department of Legislative Services, the Department of Planning, former
Governor Martin O’Malley, the Maryland Democratic Party, Patrick Murray,
Yaakov Weissman, Jeremy Baker, Joseph Bryce, John McDonough, Karl Arro,
Michele Davis, Richard Hall, John Favazza, Kristin Jones, Victoria L. Gruber,
Alexandra Hughes, Nancy Earnest, Joy Walker, Raquel Guillroy, Matt Gallagher,
Robert Garagiola, and Rick Abbruzzese.
(Id. ¶ 7.)
Plaintiffs cite no authority that permits one person to testify under Rule 30(b)(6) on
behalf of another person, they have cited no authority for the notion that a designee for one
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Governor’s Redistricting Advisory Committee.

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governmental agency can testify as to the knowledge of another governmental agency, see
Covington v. Semones, Civ. No. 06-614, 2007 WL 1052460, at *1-2 (W.D. Va. Apr. 5, 2007)
(quashing Rule 30(b)(6) notice insofar as it sought to have defendant Town of Christiansburg
testify as to knowledge of Montgomery County Commonwealth’s Attorney’s Office), and they
certainly have cited no authority for an agency designee to testify on behalf of the Maryland
Democratic Party. Plaintiffs rely upon cases pertaining to affiliated corporations and the concept
of “control” under Rule 34(a)(1). The Court acknowledges that, in a proper case, Rule 34(a)(1)
control may be relevant to the Rule 30(b)(6) inquiry, but this is not that case. It is one thing to
find Defendants have the practical ability to obtain documents and basic information from
nonparties, as the Court did in its Memorandum and Order of February 13, 2017 (ECF No. 143);
it is quite another to expect that they should immerse themselves into another state agency’s
records and be able to testify as to that other agency’s knowledge. Moreover, it is wholly
improper to expect Defendants to learn what other individuals know and require Defendants to
testify on their behalf.
Plaintiffs are free to use notices and subpoenas for Rule 30(b)(6) depositions of entities.
If they wish to learn the knowledge of specific individuals, then they may do so via ordinary
deposition methods of those individuals, but not pursuant to Rule 30(b)(6). And Plaintiffs may
not require one entity deponent to testify as to the knowledge of another entity deponent under
the circumstances of this case.
Accordingly, it is hereby ORDERED that Defendants’ motion for a protective order is
GRANTED and that the notice issued by Plaintiffs under Rule 30(b)(6) is QUASHED.

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DATED this 14th day of February, 2017.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge

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