Cook v. Lynn & William, Inc.

Filing 79

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER granting in part and denying in part 48 Motion for Protective Order. (Russo, Noreen).

Case 1:22-cv-10408-PBS Document 79 Filed 05/22/23 Page 1 of 16

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TIMOTHY COOK, JR.,
Plaintiff,
No. 22-cv-10408-PBS
v.
LYNN AND WILLIAM, INC.,
Defendant.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR PROTECTIVE ORDER
(DKT. NO. 48)
CABELL, U.S.M.J.
I.

INTRODUCTION
This case arises out of an injury the plaintiff, Timothy Cook,

Jr. (“plaintiff”) suffered while engaged as the captain of the
defendant’s vessel.

The plaintiff alleges that he fell onto a

fishhook while aboard the vessel, resulting in the loss of his
right eye.

The defendant contends that the plaintiff’s use of

illegal drugs directly caused his injury.
In

this

motion,

the

defendant

limiting the deposition of its

seeks

a

protective

order

principal, Bart McNeel.

The

defendant takes issue with the plaintiff’s planned Rule 30(b)(6)
deposition of McNeel, both because it will likely be duplicative
of McNeel’s personal deposition and unnecessarily burdensome and
because some of the noticed topics are improper.

The plaintiff

Case 1:22-cv-10408-PBS Document 79 Filed 05/22/23 Page 2 of 16

opposes the motion.

For the following reasons, the court grants

the defendant’s motion in part and denies it in part.
II.

RELEVANT BACKGROUND
On March 16, 2023, the plaintiff noticed a deposition of

McNeel in his personal capacity scheduled for March 24.
48-1).

(Dkt. No.

On March 20, the plaintiff noticed a deposition of the

defendant’s designee pursuant to Federal Rule of Civil Procedure
30(b)(6) (“Rule 30(b)(6)”).

(Dkt. No. 48-2).

scheduled for March 29, 2023.

(Id.).

This deposition was

According to the defendant,

McNeel is the only person who can testify on the defendant’s
behalf.

(Dkt. No. 48, p. 2).

On March 21, the day after the Rule 30(b)(6) deposition was
noticed, defense counsel emailed plaintiff’s counsel to inquire
about rescheduling the depositions and moving them to Portland,
Maine (i.e., closer to McNeel’s residence).

(Dkt. No. 48-3).

The

email explained that McNeel was “recovering from Covid, a car
accident, [and] a recent stroke and [was] undergoing physical
therapy.”

(Id.).

In the ensuing days, the parties were unable to

agree as to when McNeel’s depositions would take place, whether
there needed to be two separate depositions, and whether McNeel
would

testify

to

every

topic

noticed

for

the

Rule

30(b)(6)

deposition.

(Dkt. No. 48-4; Dkt. No. 48-5; Dkt. No. 56-1, ¶¶ 3-

9).

24

March

deposition.

passed

without

McNeel

(Dkt. No. 56-1, ¶ 5).
2

attending

his

personal

On March 28, plaintiff’s

Case 1:22-cv-10408-PBS Document 79 Filed 05/22/23 Page 3 of 16

counsel emailed defense counsel to confirm that the Rule 30(b)(6)
deposition remained scheduled for the next day and that the
plaintiff would seek relief from the court if McNeel did not
attend.

(Dkt. No. 48-4).

Defense counsel notified plaintiff’s

counsel that McNeel would not appear the next day, citing McNeel’s
health

concerns,

discovery,

and

the

the

plaintiff’s

plaintiff’s

failure

to

insistence

separate, potentially day-long depositions.

provide

on

certain

conducting

two

(Dkt. No. 48-5).

The

defendant filed its motion for a protective order the same day.
(Dkt. No. 48).
III. DISCUSSION
As many of the parties’ arguments touch on the appropriateness
of the noticed Rule 30(b)(6) deposition, it is instructive at the
outset to note the purpose and limits of such depositions.
30(b)(6) governs depositions of organizations.

Rule

Under the rule, an

organization named in a notice or subpoena “must designate one or
more officers, directors, or managing agents, or designate other
persons to testify on its behalf.”

Fed. R. Civ. P. 30(b)(6).

This

is so because “[o]bviously 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.”

8A Charles Alan Wright, Arthur R. Miller & Richard

L. Marcus, Federal Practice & Procedure § 2103 (3d ed. 1998) (April
2023

Update).

“The

persons

designated
3

must

testify

about

Case 1:22-cv-10408-PBS Document 79 Filed 05/22/23 Page 4 of 16

information known or reasonably available to the organization,”
Fed. R. Civ. P. 30(b)(6), even if that information lies “beyond
matters personally known to th[ose] designee[s] or to matters in
which the designee[s] w[ere] personally involved,” Briddell v.
Saint Gobain Abrasives Inc., 233 F.R.D. 57, 60 (D. Mass. 2005)
(internal quotation marks omitted).

It is the named organization,

and not the party noticing the deposition, that is responsible for
choosing the designee(s).

See Foster-Miller, Inc. v. Babcock &

Wilcox Canada, 210 F.3d 1, 17 (1st Cir. 2000) (finding organization
could not shift burden to party by asking party “whom it wished to
testify on behalf of [organization] for Rule 30(b)(6) purposes”)
(emphasis in original).
Although a Rule 30(b)(6) deposition may fairly cover all
relevant information available to an organization, it is not
without its limits.

“A Rule 30(b)(6) deposition is an overbroad,

inefficient, and unreasonable means of discovering an opponent’s
factual and legal basis for its claims.”

Trs. of Bos. Univ. v.

Everlight Elecs. Co., Civil Action Nos. 12-11935-PBS, 12-12326PBS, 12-12330-PBS, 2014 WL 5786492, at *4 (D. Mass. Sept. 24,
2014).

“Even under the present-day liberal discovery rules, the

recipient of a Rule 30(b)(6) request is not required to have
counsel marshal[] all of its factual proof and prepare a witness
to be able to testify on a given defense or claim.”
up).

Id. (cleaned

Where a party seeks not only facts but an explanation of the
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legal consequences of said facts, contention interrogatories are
a better discovery vehicle than a Rule 30(b)(6) deposition.

Fid.

Mgmt. & Rsch. Co. v. Actuate Corp., 275 F.R.D. 63, 64 (D. Mass.
2011); see also E.E.O.C. v. Tex. Roadhouse, Inc., Civil Action No.
11-11732-DJC, 2014 WL 4471521, at *3-*4 (D. Mass. Sept. 9, 2014)
(finding Rule 30(b)(6) deposition on contested topics unnecessary
where “[t]he information requested can be adequately provided by
written

discovery,

interrogatories,

[plaintiff’s] expert on damages”).

and

a

deposition

of

the

In short, a Rule 30(b)(6)

deposition is not a substitute for interrogatories or written
discovery requests.
A.

Propriety of Dual Depositions

The defendant argues that requiring McNeel to sit for two
potentially seven-hour-long depositions would be excessive and
unduly burdensome even without considering his medical condition,
particularly since “McNeel was not present aboard the [v]essel at
the time of the incident,” and thus is not a percipient witness to
the plaintiff’s injury.

(Dkt. No. 48, p. 3).

The court agrees

that, under the circumstances, McNeel’s personal deposition likely
will not require the full seven hours allotted by rule.
R. Civ. P. 30(d)(1).

See Fed.

At the same time, though, the court notes

that it is the defendant, not the plaintiff, who designated McNeel
as its Rule 30(b)(6) deponent.

See Foster-Miller, 210 F.3d at 17.

This may have been a matter of necessity rather than deliberate
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choice, but it was nonetheless the defendant’s decision.

The

plaintiff is entitled to depose both McNeel and the defendant.

He

has no control over who testifies on the defendant’s behalf.

It

is hardly fair for the defendant to make McNeel its Rule 30(b)(6)
designee and then claim that this designation places an undue
burden on McNeel.

The court will not limit the depositions on

this ground.
B.

McNeel’s Health Concerns

Notwithstanding the above, the fact remains that McNeel has
reportedly suffered a series of serious illnesses and injuries in
the past few months.

The presumptive difficulties that these

setbacks impose on McNeel are more compelling as the “good cause”
required to justify a protective order.

See Fed. R. Civ. P.

26(c)(1).
The

plaintiff

takes

issue

with

the

defendant

seeking

a

protective order on this basis because the defendant has not
provided any evidence to prove that McNeel indeed experienced the
claimed car accident, bout of Covid, and stroke or that these
misfortunes

will

impair

his

ability

to

testify.

The

court

acknowledges the plaintiff’s frustration but declines to make
further inquiry of counsel here.

Defense counsel, like every

lawyer, “is an officer of the court [and] has a duty of candor to
the tribunal.”

Ark. Tchr. Ret. Sys. v. State St. Bank and Tr.

Co., 512 F. Supp. 3d 196, 209 (D. Mass. 2020) (quoting Pearson v.
6

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First NH Mortg. Corp., 200 F.3d 30, 38 (1st Cir. 1999)) (internal
quotation marks omitted and alteration in original); see Mass. R.
Prof. C. 3.3(a)(1) “A lawyer may not make a false statement of
fact or law to a tribunal.”).

That ongoing duty of candor, and

more importantly an attorney’s awareness of it, in turn gives rise
to

a

presumption

of

trustworthines,

and

an

attorney’s

representations are presumed to be truthful absent any indication
that they are untrustworthy. In the absence of any such indication
here, the court accepts counsel’s representations regarding McNeel
(just as it would tend to credit representations from plaintiff’s
counsel were the situation reversed).

The court also presumes

that counsel is familiar with the ongoing ethical obligation to
correct any incorrect statements of material fact, Mass. R. Prof.
C. 3.3(a)(1), and the consequences of failing to do so.

See Mass.

R. Prof. C. 8.4(a), 8.4(c).
The

court

finds

that

McNeel’s

medical

difficulties,

as

described, constitute good cause for limiting the depositions.
Accordingly, the plaintiff may depose McNeel for a total of eight
hours, exclusive of any breaks.

The deposition may be conducted

in one day or over the course of two days, at McNeel’s option.
The plaintiff may choose how much time to apportion to McNeel’s
personal deposition and to the Rule 30(b)(6) deposition.

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C.

Plaintiff’s Production of Documents

The defendant further argues that McNeel’s deposition should
not go forward until the plaintiff fully complies with this court’s
order compelling certain written discovery.

(Dkt. No. 58).

In

resolving another motion, the court has since ordered that the
plaintiff may not conduct any further depositions until it produces
the compelled discovery.

(Dkt. No. 78).

This ruling applies with

equal force to McNeel’s deposition.
D.

30(b)(6) Deposition Topics

Finally, the defendant objects to certain topics listed in
the Rule 30(b)(6) deposition notice.

The plaintiff argues that

each of the disputed topics is proper and that the defendant’s
objections are not made in good faith.
At

the

outset,

the

court

notes

that

nearly

all

of

defendant’s objections are generic, boilerplate objections.
(Dkt. No. 48, pp. 7-8).

the
See

For example, the defendant asserts that

several topics are “overly broad and unduly burdensome” without
articulating why they are overly broad or what burden responding
to

them

would

impose.

See

(id.

at

p.

8).

“Boilerplate,

generalized objections are inadequate and tantamount to not making
any objection at all.”

Walker v. Lakewood Condominium Owners

Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999), quoted with approval
by HealthEdge Software, Inc. v. Sharp Health Plan, Civil Action
No. 19-11020-ADB, 2021 WL 1821358, at *4 (D. Mass. May 6, 2021);
8

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see Katz v. Shell Energy N. Am. (US), LP, 566 F. Supp. 3d 104, 107
(D. Mass. 2021) (“It is not enough to merely assert overbreadth,
burden, or oppression; instead, the party resisting discovery must
specifically show how each request for production is either not
relevant or overbroad, burdensome, or oppressive.”).
declines to consider these unsubstantiated objections.

The court
Instead,

the court will consider the topics standing alone, only striking
or limiting those that are facially improper.1

See Fed. R. Civ.

P. 26(b)(2)(C) (requiring court to limit discovery under certain
conditions).
a.

Topic 1

Topic 1 seeks testimony on “[t]he Defendant’s Answers to
Interrogatories Propounded by the Plaintiff dated November 17,
2023, [sic] including, without limitation, the source of the
information contained within Defendant’s answers and what steps
were taken by the Defendant to acquire information requested by
each interrogatory question.”2

As noted above, a Rule 30(b)(6)

deposition is not an appropriate substitute for written discovery.
It is not an opportunity for the plaintiff to seek assurances that
the defendant diligently compiled its (presumably signed) answers
to the plaintiff’s interrogatories, especially since nothing in

The defendant does not object to, and so the court will not consider, Topics
3, 5, 12, 13, and 14, (Dkt. No. 48, p. 6).
1

This and all subsequent quoted language from the deposition topics comes
from the Rule 30(b)(6) deposition notice, (Dkt. No. 48-2).
2

9

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the record (apart from plaintiff’s counsel’s assertions in his
affidavit) suggests that the defendant made a less than fulsome
effort in formulating its answers. The court will therefore strike
this topic.
b.

Topics 2 and 4

Topic 2 calls for testimony regarding “[a]ll communications
between A) Steffen Hollis and B) the Defendant, including without
limitation,

the

Defendant’s

officers,

agents,

employees,

adjusters, and investigators[,] which occurred after the August 5,
2021 alleged incident.”

Topic 4 is identical except that it

regards communications between the defendant and Steffen Hollis’s
mother.

Nothing in the record before the court sheds any light on

how Steffen Hollis or his mother relate to this case.

However,

the court notes that the defendant does not object to Topics 3 and
5, which concern the defendant’s payment of money to Hollis and
his

mother.

inquiries

into

The

defendant’s

communications

objections
between

the

do

not

explain

defendant

and

how
the

Hollises are irrelevant or improper when inquiries into payments
between them are fair game.

See Jagex Ltd. V. Impulse Software,

273 F.R.D. 357, 358 (D. Mass. 2011) (citing Pub. Citizen v. Liggett
Grp., Inc., 858 F.2d 775, 789 (1st Cir. 1988)) (“The burden of
demonstrating good cause rests on the proponent of the protective
order.”).

The court presumes that, pursuant to these topics, the

plaintiff will expect McNeel to be prepared to summarize and speak
10

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on the circumstances surrounding certain communications rather
than reciting the exact contents of the communications from memory.
Subject to that presumption, and in the absence of a particularized
objection, these topics appear reasonable and thus may be explored.
c.
Topic
within

Topics 6, 7 and 9

6

seeks

Plaintiff’s

testimony

on

“[t]he

Interrogatories

to

information
the

requested

Defendant

dated

9/7/2022.” Topic 7 is similar: “The existence and present location
of all documents requested with the attached Plaintiff’s Request
for Production of Documents to the Defendant dated 9/7/2022.”3
Topic 9 is the same as Topic 7 except that it only applies to “any
documents which were requested . . . but which were not produced
to Plaintiff for any reason.”

Again, the purpose of a Rule

30(b)(6) deposition is not to confirm or test the written discovery
that a party has already provided, and nothing in the record
suggests that the defendant has concealed any documents from the
plaintiff.

The court strikes these topics for substantially the

same reason as Topic 1.
implies

that

the

Nonetheless, to the extent that Topic 9

defendant

did

not

confirm

whether

certain

requested documents exist, the parties are reminded of their
obligation to “state whether any responsive materials are being

The version of the notice on the docket does not have the plaintiff’s
request for production of documents attached.
3

11

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withheld on the basis of [an] objection.”

Fed. R. Civ. P.

34(b)(2)(C).
d.

Topic 8

Topic 8 regards “[t]he steps taken by the Defendant to
determine

whether

any

of

the

documents

described

within

the

attached Plaintiff’s Request for Production of Documents to the
Defendant dated 9/7/2022 were within the Defendant’s possession[,]
custody and/or control.”

This topic, like Topic 9, appears to

suggest that the defendant’s response to the request for production
may have omitted some documents.

Assuming this premise (without

making any finding), it would be reasonable for the defendant to
explain the steps it took to attempt to find documents that it
ultimately determined it did not possess so as to satisfy the
plaintiff that the defendant acted with reasonable diligence.

It

is much less clear how this is relevant to documents that the
defendant admits are in its possession. Accordingly, the plaintiff
may inquire into, and McNeel should be prepared to testify about,
the steps the defendant took to try to find the requested documents
that the defendant ultimately determined it did not have.
e.

Topics 10 and 11

Topics 10 and 11 concern alleged communications about the
plaintiff between the defendant and defense counsel on the one
hand and the Essex County District Attorney’s Office on the other
hand.

The plaintiff is currently facing criminal drug charges in
12

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Essex Superior Court arising from an incident separate from and
predating the injury at issue in this case.

(Dkt. No. 43, p. 2).

Topic 10 specifically seeks testimony on “[a]ll written and/or
verbal Communications between the Defendant, including its legal
counsel,

and the Essex County District attorney’s office relating

to Plaintiff Timothy Cook.”
and

if

not

known

the

Topic 11 seeks “[t]he precise words

substance

of

any

written

or

verbal

communications between the Defendant, including its legal counsel,
and

the

Essex

County

District

Plaintiff Timothy Cook.”

attorney’s

office

relating

to

The defendant argues that it has had no

improper communications with the Essex County District Attorney’s
Office and that any such communications would anyway be irrelevant.
The

plaintiff

asserts

that

he

has

reason

to

believe

such

communications occurred and that he needs to know about them, “at
a minimum, for the purpose of seeking a confidentiality order
particularly with respect to medical records.”

(Dkt. No. 56, p.

9).
Since the defendant filed this motion, the court has issued
a protective order prohibiting either party or its counsel from
sharing

the

plaintiff’s

medical

records

with

third

including the Essex County District Attorney’s Office.
74).

parties,
(Dkt. No.

This order ought to resolve the plaintiff’s concerns about

the defendant sharing his information. Certainly, if the plaintiff
has reason to believe that the defendant has violated the order
13

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going forward, the plaintiff can raise that issue with the court.
Apart from this concern about the defendant sharing the plaintiff’s
sensitive medical information, Topics 10 and 11 are facially
irrelevant to the subject matter of this case, and so the court
strikes them.
f.

Topics 15 and 16

Topic 15 requests testimony on “[t]he factual basis for
Defendant’s claim that Plaintiff’s injury was caused by his own
negligence including without limitation specifically what act or
omission Defendant claims was negligent or otherwise constituted
fault, and how and why those negligent acts or fault caused the
Plaintiff’s injury.”
basis

of

the

Topic 16 more broadly covers “[t]he factual

affirmative

defenses

raised

within

Defendant’s

Answer.”
“[A] Rule 30(b)(6) witness may not be expected to testify
about the factual basis of legal theories.”

Sec. and Exch. Comm’n

v. Present, Civil Action No. 14-14692-LTS, 2016 WL 10998439, at *2
(D. Mass. May 12, 2016) (citing Cooper v. Charter Commc’ns, Inc.,
Civil Action No. 12-10530-MGM, 2016 WL 128099, at *2 (D. Mass.
Jan. 12, 2016)); see also Trs. of Bos. Univ., 2014 WL 5786492, at
*4 (“A Rule 30(b)(6) deposition is an overbroad, inefficient, and
unreasonable means of discovering an opponent’s factual and legal
basis for its claims.”).

A Rule 30(b)(6) designee, who (like

McNeel) is typically not a lawyer, is not well-suited to answer
14

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questions about the legal consequences of certain facts, such as
explaining how they might demonstrate contributory negligence.
Fid. Mgmt. & Rsch. Co., 275 F.R.D. at 64.

Any such testimony also

runs a substantial risk of disclosing protected attorney work
product.

Id.

Other discovery vehicles, such as contention

interrogatories or a deposition by written questions, avoid these
difficulties.
not

pursue

Id. at 64-65.

Topics

15

and

For these reasons, the plaintiff may
16

through

an

oral

Rule

30(b)(6)

deposition.
g.

Topic 17

Finally, Topic 17 seeks testimony on “[a]ll communications
between the Timothy Cook [sic] and the Defendant, including the
Defendant’s agents and employees, relating too [sic] the wooden
decking on the main deck of the F/V Lynn & William immediately aft
of the vessel’s living quarters in the general vicinity of the
winches and the ladder leading up to the Pilothouse deck.”

As

with Topics 2 and 4, the court presumes that McNeel will only have
to summarize and discuss the context of certain communications.
With that caveat, this topic is both relevant and reasonable and
may be explored.
IV.

CONCLUSION
For the reasons stated above, the court GRANTS the motion in

part and DENIES it in part.

The plaintiff may depose McNeel for

no more than eight hours.

McNeel may choose to divide his
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deposition into two sessions if he wishes.

The Rule 30(b)(6)

portion of McNeel’s deposition may cover noticed Topics 2, 3, 4,
5, 8, 12, 13, 14, and 17 subject to any limitations set out above.

So ordered.
DATED:

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.

May 22, 2023

16