LIBERTY INSURANCE UNDERWRITERS, INC., V. BEAUFURN, LLC, ET AL.

Filing 99

MEMORANDUM OPINION AND RECOMMENDATIONOF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/19/2021, that (A) the instant Motion (Docket Entry 94 ) be denied, and (B) Defendant and its counsel be made to show cause why they should not "pay [Plaintiff] its reasonable expenses incurred in opposing the [instant M]otion, including attorney's fees," Fed. R. Civ. P. 37(a)(5)(B).(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LIBERTY INSURANCE UNDERWRITERS, )
INC.,
)
)
Plaintiff,
)
)
v.
)
)
BEAUFURN, LLC,
)
)
Defendant.
)

1:16CV1377

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommended ruling on Defendant’s Motion to
Compel Deposition Testimony and Motion for Sanctions (Docket Entry
94).1

Because Defendant’s counsel did not (and could not) certify

that he (A) engaged in good-faith, pre-filing consultation with
Plaintiff’s counsel, and/or (B) diligently tried to resolve this

1 Generally, “motions to compel discovery” under the Federal
Rules of Civil Procedure (the “Rules”) constitute “[n]ondispositive
matters [which] may be referred to a magistrate judge [for rulings]
without the parties’ consent.” Mvuri v. American Airlines, Inc.,
776 F. App’x 810, 810-11 (4th Cir. 2019) (citing Fed. R. Civ. P.
72(a)), cert. denied, ___ U.S. ___, 140 S. Ct. 1227 (2020).
Similarly, as a general proposition, “[an] order disposing of [a]
Rule 37 motion for sanctions is undoubtedly a nondispositive matter
[for purposes of] Rule 72.”
Kebe ex rel. K.J. v. Brown, 91
F. App’x 823, 827 (4th Cir. 2004). However, because the instant
Motion seeks (as one alternative form of relief) “an order
dismissing [Plaintiff’s] claim for equitable subrogation” (Docket
Entry 94 at 4), the undersigned Magistrate Judge will enter a
recommendation in this instance, see Fed. R. Civ. P. 72(b)(1)
(mandating that, “when assigned, without the parties’ consent, to
hear a pretrial matter dispositive of a claim,” a “magistrate judge
must enter a recommended disposition”).

discovery dispute without litigation, the Court should deny the
instant Motion pursuant to Local Rule 37.1(a).
INTRODUCTION
Defendant brought the instant Motion (at least nominally)
“pursuant to Rule 37(a)(3)(B)(iv)” (id. at 1),2 to secure either:
1) an order directing Plaintiff “to provide full and complete
responses to questions posed during [Defendant’s] deposition of
[Plaintiff] to which [Plaintiff’s] counsel instructed [Plaintiff’s]
designee not to respond or answer” (id.; see also id. at 4
(“request[ing
[Plaintiff]

to

that]
attend

this

Court

another

enter

[Rule]

an

order

30(b)(6)

compelling

deposition,

to

compensate [Defendant] for the time and expense of both the first
deposition and any further depositions ordered by this Court, and
to respond in full to all questions regarding [] topics [pertaining

2 The provision of the Rules cited by Defendant permits
motions to compel when “a party fails to produce documents or fails
to respond that inspection will be permitted – or fails to permit
inspection – as requested under Rule 34.”
Fed. R. Civ. P.
37(a)(3)(B)(iv). Given that the instant Motion seeks to compel
oral deposition testimony (see Docket Entry 94 at 1), Defendant
likely intended to invoke the provision of the Rules permitting
motions to compel when “a deponent fails to answer a question asked
under Rule 30,” Fed. R. Civ. P. 37(a)(3)(B)(i); see also Fed. R.
Civ. P. 30 (providing for “Depositions by Oral Examination” (bold
omitted)). The instant Motion does not identify the basis for its
sanctions request (see Docket Entry 94 at 1-4), but the
accompanying Memorandum in Support grounds that request on Rule 30,
which (as quoted by Defendant) authorizes “‘impos[ition of] an
appropriate sanction – including the reasonable expenses and
attorney’s fees incurred by any party – on a person who impedes,
delays, or frustrates the fair examination of the deponent’”
(Docket Entry 95 at 20 (quoting Fed. R. Civ. P. 30(d)(2))).
2

to Plaintiff’s involvement in the underlying action], regardless of
any claimed privilege or protection”)); or
2)

“[i]n

the

alternative,

.

.

.

an

order

prohibiting

[Plaintiff] from introducing at trial any evidence regarding []
topics [pertaining to Plaintiff’s involvement in the underlying
action] as a sanction for the intentional refusal to conduct
discovery

on

those

topics

and

for

the

untimely

objection

to

deposition questions regarding those topics; or . . . an order
dismissing [Plaintiff’s] claim for equitable subrogation for lack
of evidence” (id. at 4).
Plaintiff has responded that, inter alia, the Court should
deny the instant Motion under the terms of Local Rule 37.1(a).
(See Docket Entry 97 at 4-5.)

That Local Rule states:

The Court will not consider motions and objections
relating to discovery unless moving counsel files a
certificate that after personal consultation and diligent
attempts to resolve differences the parties are unable to
reach an accord. The certificate shall set forth the
date of the conference, the names of the participating
attorneys, and the specific results achieved. It shall
be the responsibility of counsel for the movant to
arrange for the conference and, in the absence of an
agreement to the contrary, the conference shall be held
in the office of the attorney nearest the court location
where the initial pretrial conference was convened or, in
the
absence
thereof,
nearest
to
Greensboro.
Alternatively, at any party’s request, the conference may
be held by telephone.
M.D.N.C. LR 37.1(a) (emphasis added); see also Fed. R. Civ. P.
37(a)(1) (requiring that motions to compel “include a certification
that the movant has in good faith conferred or attempted to confer

3

with the . . . party failing to make . . . discovery in an effort
to obtain it without court action”).
Neither the instant Motion nor the accompanying Memorandum of
Law in Support certifies “that after personal consultation and
diligent attempts to resolve differences the parties [we]re unable
to reach an accord,” M.D.N.C. LR 37.1(a).
95.)

(See Docket Entries 94,

Per Plaintiff, “Defendant’s moving papers include no such

certification as Defendant did not seek to arrange the required
conference.”

(Docket Entry 97 at 5.)

As a result, Plaintiff’s

Response contends “the Court should not consider [the instant
M]otion.”

(Id.)

Defendant has replied to that contention thusly:

During the [Rule] 30(b)(6) deposition of [Plaintiff],
counsel for both parties stated their positions, both
parties made their arguments regarding objections, and
neither party showed any interest in compromising or in
resolving the dispute over the objections made during the
deposition. While this may not function to the exact
letter of the Local Rules regarding “meet and confer” and
the certification of such an attempt when filing a motion
to compel discovery, it certainly functioned in the
spirit of the Rule. During the deposition, each party
had the chance to discuss with counsel and persuade the
other party to agree to its position.
Neither party
agreed
to
the
other
party’s
position.
.
. .
[Plaintiff’s] insistence that the parties needed to
schedule
a
post-deposition
conference
prior
to
[Defendant’s filing of the] instant [M]otion amounts to
a procedural objection that would have accomplished
nothing and wasted both parties’ time and resources. It
is clear from the deposition transcript — filed with the
instant [M]otion — that the parties met, conferred, and
were unable to reach an agreement as to the disputed
deposition objections.
(Docket Entry 98 at 1-2 (internal citation omitted) (citing Docket
Entry 94-4 at 28-30).)
4

DISCUSSION
Because the record does not support Defendant’s position that
counsel for the parties conducted the functional equivalent of the
conference required by Local Rule 37.1(a) during the Rule 30(b)(6)
deposition

of

Plaintiff,

the

Court

should

reject

Defendant’s

argument that it complied with the “spirit” (id. at 2) – if not the
“letter” (id. at 1) – of Local Rule 37.1(a).

Further, the Court

should

treat

Plaintiff’s

pointless

“procedural

decline

invocation

of

Defendant’s
Local

Rule

invitation

37.1(a)

as

to
a

objection” (id. at 2) and the consultation obligation imposed by
Local

Rule

37.1(a)

as

a

“waste[

of]

both

parties’

time

and

resources” (id.), as inconsistent with sound principles of judicial
economy and respect for the rule of law.

Accordingly, the Court

should deny the instant Motion pursuant to Local Rule 37.1(a).
Starting with Defendant’s compliance-in-spirit argument, the
transcript of the Rule 30(b)(6) deposition of Plaintiff reflects
that, after (A) Defendant’s counsel had asked Plaintiff’s designee
slightly more than 100 questions (see Docket Entry 94-4 at 5-28),
five of which Plaintiff’s counsel instructed Plaintiff’s designee
not to answer (see id. at 22 (“Q
separate
counsel]:

counsel

from

[its

Why did [Plaintiff] retain

insured’s]

counsel?

[Plaintiff’s

. . . I’m going to advise you not to answer that

question. . . .

Q

Okay.

Did [Plaintiff] have any authority or

influence over the decision to settle the lawsuit?

5

[Plaintiff’s

counsel]:
(“Q

. . . I’m going to advise you not to answer.”), 27-28

How did [Plaintiff] arrive at the number that it paid for its

share of the settlement?

[Plaintiff’s counsel]:

to advise you not to answer. . . .

Q

. . . I’m going

Did [Plaintiff] believe that

[its insured] was liable for [the plaintiff’s] injuries in the
underlying lawsuit?
not to answer.

Q

[Plaintiff’s counsel]:

Did [Plaintiff] . . . believe that [Defendant]

was responsible for [those] injuries?
.

.

.

[S]ame

. . . I’ll advise you

instruction.”)),

and

[Plaintiff’s counsel]:
(immediately)

after

(B) Plaintiff’s designee had answered “Yes” to the questions “Is it
fair to say that you will not be answering any questions about how
the settlement value was reached on advise [sic] of your counsel?”
and “Is it fair [to say] you will not be offering any testimony
today about [Plaintiff’s] belief as to liability in the underlying
action on advise [sic] of your counsel?” (id. at 28), this exchange
occurred between counsel for the parties:
[Defendant’s counsel]:
At this time I’m going to
terminate this deposition until we can file a motion to
compel. I believe [Plaintiff’s designee’s] testimony is
necessary to the prosecution of defense of this case. I
do not believe it is appropriate to be withheld. . . .
I don’t want to waste several hours of [Plaintiff’s
designee’s] time asking questions that [he has] been
instructed not to answer. And I’m certainly not going to
try to bully [him] or try to run over [him].
[Plaintiff’s] counsel’s made it clear [Plaintiff’s
designee] will not be answering questions on those
topics.
[Defendant] reserve[s] the right to hold this deposition
open and renew it at a further date pending any results
from the Court . . . . I think [Plaintiff’s counsel] and
6

I agree that a motion has been filed that will have
direct bearing on this in the future. And we will reach
a new deposition time and date as agreed between the
parties if the Court so orders it.
[Plaintiff’s counsel]: So, okay, I will just respond to
that. And [I] appreciate that there is an issue that we
already discussed. To a certain extent, it is true that
I will continue to object on the same grounds; however,
[Plaintiff’s designee] is available here today, he’s been
made available after the close of discovery to discuss
the underlying facts as they are understood by
[Plaintiff] as to the subrogation claim, including as to
its knowledge of the underlying lawsuit. So he is here
available today to discuss with counsel, and answer and
respond to those types of questions. As I understand it,
though, [Defendant’s] counsel would like to take to the
Court the other issues that we’ve discussed previously.
So if that is what counsel’s choice is, that’s the choice
that they are making.
But just to reiterate again,
[Plaintiff’s designee] is available here to talk about
the facts of the underlying case and the subrogation
claim. We just will not get into any information as to
-- the last several questions have indicated [sic] into
what we believe is pretty clearly work product,
information protected by work product. So with that -[Defendant’s counsel]: Well, hold on. I’m happy to go
through these topics and have you object on the record to
each of them if you would like to?
[Plaintiff’s counsel]: Well, I mean, that’s perfectly
fine.
You can do whatever you want.
I think I
understand what your objections are. All I’m saying is
that if you [would] like to question the witness as to
the facts, he is available to do that. If you choose not
to do that and want to address the other issues with the
Court, then I guess that’s what you’re going to do.
[Defendant’s counsel]:
fine with me.

Well, we can continue.

That’s

(Docket Entry 94-4 at 28-30; see also id. at 30-72 (documenting
over 150 more questions by Defendant’s counsel, nine of which met
with instructions that Plaintiff’s designee not answer).)

7

Contrary to Defendant’s assertion, the above-quoted exchange
does

not

show

that

“counsel

for

both

parties

stated

their

positions[ or] . . . made their arguments regarding objections”
(Docket Entry 98 at 1 (citing Docket Entry 94-4 at 28-30)); rather,
Defendant’s

counsel

abruptly

threatened

“to

terminate

th[e]

deposition” (Docket Entry 94-4 at 28), based on the vague rationale
that unspecified “testimony [wa]s necessary to the prosecution of
defense of this case” (id.), and then ambiguously declared that
“[Plaintiff’s] counsel’s made it clear [Plaintiff’s designee] will
not be answering questions on those topics” (id. at 29 (emphasis
added)), without elucidating the “topics” to which Defendant’s
counsel referred (see id.), before cryptically invoking Defendant’s
Motion to Compel Production of Documents (see id. (referring to
Docket Entry 90)). Plaintiff’s counsel thereafter acknowledged the
existence of “an issue that [counsel for the parties] already
discussed” (id.), but never described Plaintiff’s “positions[ or]
. . . made [any] arguments” (Docket Entry 98 at 1) regarding any
such

issue

(see

Docket

Entry

94-4

at

29).

At

that

point,

Plaintiff’s counsel alluded in jumbled fashion to “the last several
questions”

soliciting

“what

[Plaintiff]

believe[d

wa]s

pretty

clearly work product” (id. at 30), whereupon Defendant’s counsel
elected to proceed with the deposition (see id.).3

3 Notably, the instant Motion seeks relief for events during
the Rule 30(b)(6) deposition of Plaintiff beyond the objections/
(continued...)
8

Simply put, the interaction cited by Defendant’s counsel as
proof “that the parties met[ and] conferred . . . [about] the
disputed deposition objections” (Docket Entry 98 at 2) does not
come close to satisfying even the spirit (let alone the letter) of
the Court’s pre-filing requirement of “personal consultation and
diligent attempts to resolve differences,” M.D.N.C. LR 37.1(a).
Indeed, the statement in Defendant’s Reply that, in the course of
the deposition, “neither party showed any interest in compromising
or in resolving the dispute over the objections made during the
deposition” (Docket Entry 98 at 1) only underscores the conclusion
that nothing that occurred in the deposition even approached
compliance with Local Rule 37.1(a). Phrased another way, the Court
should not allow litigants to convert disinterest in compromise
into a license to dispense with pre-filing consultation.

3(...continued)
instructions by Plaintiff’s counsel concerning “work product,” to
which the above-quoted exchange awkwardly adverts (see, e.g.,
Docket Entry 94 at 2 (“[Plaintiff’s] designated representative
repeatedly lacked knowledge directly pertaining to a number of
topics, despite [its] obligation to designate a deponent who was
prepared to testify regarding those same topics.”)), including
events that occurred after the supposed mid-deposition, “meet-andconfer” (see, e.g., id. (“[Plaintiff’s] counsel instructed
[Plaintiff’s] designated representative not to answer questions on
the basis of attorney-client privilege even after [the] designated
representative waived that privilege by providing responses that
included communications with its attorney.”); Docket Entry 95 at 15
(elaborating on that aspect of instant Motion and citing Docket
Entry 94-4 at 34-35)). Defendant indisputably failed to fulfill
its duties under Local Rule 37.1(a), as to such matters that
counsel for the parties did not discuss and/or could not have
discussed (because they had not yet happened), when the “meet-andconfer” purportedly took place in the midst of the deposition.
9

As one court explained in connection with its own parallel,
pre-filing consultation local rule:
Inherent in [the local r]ule[]’s language, and essential
to the [local r]ule’s proper operation, is the
requirement that parties treat the informal negotiation
process as a substitute for, and not simply a formalistic
prerequisite to, judicial resolution of discovery
disputes. To that end, the parties must present to each
other the merits of their respective positions with the
same candor, specificity, and support during informal
negotiations as during the briefing of discovery motions.
Only after all of the cards have been laid on the table,
and a party has meaningfully assessed the relative
strengths and weaknesses of its position in light of all
available information, can there be a sincere effort to
resolve the matter.
Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev.
1993) (emphasis added) (internal citations and quotation marks
omitted); see also Dondi Props. Corp. v. Commerce Sav. & Loan
Ass’n, 121 F.R.D. 284, 289 (N.D. Tex. 1988) (“The purpose of the
conference requirement is to promote a frank exchange between
counsel to resolve issues by agreement or to at least narrow and
focus the matters in controversy before judicial resolution is
sought.

Regrettably

over

the

years,

in

many

instances

the

conference requirement seems to have evolved into a pro forma
matter.” (italics in original)).4

4 Consistent with the notion that the Court should expect a
better endeavor at diffusing discovery disputes than Defendant’s
counsel made here, no less an authority than the Chief Justice of
the United States has remarked that Rule 1 “charge[s] counsel to
‘affirmatively search out cooperative solutions, chart a costeffective course of litigation, and assume shared responsibility
with opposing counsel to achieve just results.’”
Stultz v.
(continued...)
10

Likewise, the Court should deny Defendant’s attempt to slip
the constraints imposed by Local Rule 37.1(a) by dismissing any
obligation to participate in “a post-deposition conference prior to
[filing the] instant [M]otion” (Docket Entry 98 at 2), as a mere
“procedural objection that would have accomplished nothing and
wasted both parties’ time and resources” (id.).

To begin, that

myopic view ignores the fact that “[p]roperly utilized [pre-filing
consultation rules] promote[] judicial economy while at the same
time reducing litigants’ expenses incurred for attorneys’ time in
briefing issues . . . .”

Dondi Props., 121 F.R.D. at 290; see also

Payne v. Britten, 749 F.3d 697, 706 (8th Cir. 2014) (Riley, C.J.,
concurring in part and dissenting in part) (inveighing against
“implication that procedural rules . . . are not worth following
whenever they might appear inexpedient”); Burton v. R.J. Reynolds
Tobacco Co., 203 F.R.D. 624, 626-27 (D. Kan. 2001) (“Without citing
any

authority,

[the

plaintiff’s

counsel]

argued

that

the

circumstances of this case were unique and . . . any [pre-filing]
conference among counsel would have been futile . . . .
respectfully disagrees. . . .

The court

[T]he requirement that counsel

confer about discovery disputes before filing such motions is

4(...continued)
Virginia, No. 7:13CV589, 2019 WL 4741315, at *1 (W.D. Va. Aug. 15,
2019) (unpublished) (quoting Chief Justice John Roberts, “2015
Year-End
Report
on
the
Federal
Judiciary,”
https://www.supremecourt.gov/publicinfo/year-end/2015year-endrepo
rt.pdf), adopted as modified, 2019 WL 4740241 (W.D. Va. Sept. 27,
2019) (unpublished).
11

mandatory . . . .”); Nevada Power, 151 F.R.D. at 120 (“The purpose
of this [pre-filing consultation] rule is simple:

to lessen the

burden on the court and reduce the unnecessary expenditure of
resources

by

litigants,

through

promotion

of

informal,

extrajudicial resolution of discovery disputes.”).
The Court “must also insist on compliance with procedural
rules . . . to promote [its] interest in the uniform administration
of justice.”

Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.

2001). “Doing justice between litigants, after all, hinges as much
on respect for the procedural rules governing the progress of the
lawsuit as on affording parties liberal scope in making their
arguments on the merits.”

Coleman v. Frierson, 607 F. Supp. 1566,

1575 (N.D. Ill. 1985); see also Atkins v. Hooper, 979 F.3d 1035,
1052 (5th Cir. 2020) (Costa, J., dissenting in part) (“[F]air
treatment depends on the neutral application of procedural rules.
That evenhandedness is part of what is meant by the ‘rule of law’
or ‘equal justice under law,’ ideals that are guiding lights of our
justice system.”).

With that imperative in mind, the Court should

deny the instant Motion, because Defendant’s failure to adhere to
Local Rule 37.1(a), which “ha[s] the force of law,” Hollingsworth
v. Perry, 558 U.S. 183, 191 (2010) (internal quotation marks
omitted), “evidences a lack of respect for the Court and the
judicial process,” Davis v. Wilkie, No. 15CV1521, 2019 WL 1596134,
at *12 (D. Colo. Apr. 15, 2019) (unpublished); see also Collins v.

12

Citty, No. CIV-09-756, 2011 WL 13285137, at *2 (W.D. Okla. Aug. 30,
2011) (unpublished) (“[F]ailure to abide by, and comply with,
[local] rules demonstrates a lack of respect for the judicial
process and hampers this [c]ourt’s ability to exercise its caseadministration authority.” (internal footnote omitted)).
CONCLUSION
The plain language of Local Rule 37.1(a) and “[t]he state of
the record clearly preclude[] the [C]ourt from even considering
whether

to

grant

[Defendant

the

instant

Motion’s

requested]

relief,” Burton, 203 F.R.D. at 626-27.5

5 Plaintiff and its California-based counsel, Rohit A. Sabnis
of Burnham Brown, PLLC, should not misconstrue this proposed
determination as an endorsement of their handling of Plaintiff’s
Rule 30(b)(6) deposition.
Three points merit mention in that
regard. First, Plaintiff possessed an obligation, “[b]efore or
promptly after the [deposition] notice . . . [wa]s served, . . .
[to] confer in good faith about the matters for examination,” Fed.
R. Civ. P. 30(b)(6); waiting until the eve of the deposition to
serve Defendant with (boilerplate) objections to deposition topics
(see Docket Entry 94-3) appears inconsistent with that duty of
good-faith conferral.
Further, as Defendant has observed, the
deposition transcript confirms that Mr. Sabnis routinely lodged
“objections [that] directly violated [this] Local Rule[:] . . .
‘Counsel shall not make objections or statements which might
suggest an answer to a witness. Counsels’ statements when making
objections should be succinct, stating the basis of the objection
and nothing more.’” (Docket Entry 95 at 5 n.4 (quoting M.D.N.C. LR
30.1(2))).
(See, e.g., Docket Entry 94-4 at 13 (“MR. SABNIS:
Vague and ambiguous. . . . [A]nswer to the extent you understand.
THE WITNESS:
I don’t understand.” (emphasis added)), 14 (“MR.
SABNIS: . . . To the extent that you know. THE WITNESS: To the
extent that I know . . . .” (emphasis added)), 25 (“MR. SABNIS:
. . . [O]nly if you know. THE WITNESS: I don’t know.” (emphasis
added)), 31 (“MR. SABNIS: To the extent you can understand. And
if you need clarification from counsel, please feel free to ask.
THE WITNESS:
Yeah.
To my understanding . . . .” (emphasis
(continued...)
13

IT IS THEREFORE RECOMMENDED that (A) the instant Motion
(Docket Entry 94) be denied, and (B) Defendant and its counsel be
made to show cause why they should not “pay [Plaintiff] its
reasonable expenses incurred in opposing the [instant M]otion,
including attorney’s fees,” Fed. R. Civ. P. 37(a)(5)(B).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 19, 2021

5(...continued)
added)), 48 (“MR. SABNIS: . . . [A]nswer to the extent that you
know . . . . THE WITNESS: To the extent that I know . . . .”
(emphasis added)), 49 (“MR. SABNIS: . . . [A]nswer to the extent
that you have information on the pleadings and reports . . . . THE
WITNESS: To the extent that I was made aware of the pleadings and
answers . . . .” (emphasis added)), 54 (“MR. SABNIS: Based on the
facts.
THE WITNESS:
Based on the facts . . . .” (emphasis
added)).) Misconduct of that sort could result in the revocation
of Mr. Sabnis’s authorization to appear specially in this Court.
See generally Bills v. United States, 11 F. App’x 342, 343 (4th
Cir. 2001) (describing special appearance by out-of-state counsel
as “a privilege” and “‘a matter of grace resting in the sound
discretion of the presiding judge’” (quoting Thomas v. Cassidy, 249
F.2d 91, 92 (4th Cir. 1957))). Finally, the refusal of Plaintiff’s
designee to answer certain questions ultimately may not stand, if
– in adjudicating Defendant’s Motion to Compel Production of
Documents – the Court overrules Plaintiff’s objections to document
requests which mirror its deposition objections. In that event,
the Court likely would authorize another Rule 30(b)(6) deposition
at which (A) Defendant could use documents subject to compelled
production, and (B) Plaintiff could not maintain objections
overruled by the order that compelled production. See generally
Fed. R. Civ. P. 30(a)(2)(A)(ii) (recognizing authority of “court[s
to] grant leave to . . . [depose a] deponent [who] has already been
deposed in the case”). Given that possibility, the parties (and
their counsel) should (strongly) consider conducting a (legitimate)
good-faith conference about their overarching work-product
doctrine/attorney-client privilege dispute(s) for the purpose of
genuinely pursuing a mutually acceptable, carefully calibrated
compromise, rather than just hoping the (at best) rough justice the
Court otherwise would administer will better suit their side.
14