Pauls v. The Prudential Insurance Company of America et al

Filing 35

Memorandum Opinion and Order granting in part and denying in part 28 Amended Motion to Quash and Motion for Protective Order. (Ordered by Magistrate Judge David L Horan on 10/28/2016) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CYNTHIA PAULS,

§
§
Plaintiff,
§
§
V.
§
§
THE PRUDENTIAL INSURANCE
§
COMPANY OF AMERICA and
§
PRUCO LIFE INSURANCE COMPANY, §
§
Defendants.
§

No. 3:16-cv-2116-M-BN

MEMORANDUM OPINION AND ORDER1
Defendants The Prudential Life Insurance Company of America (“Prudential”)
and Pruco Life Insurance Company (“Pruco”) (collectively, “Defendants”) have filed an
Amended Motion to Quash and Motion for Protective Order. See Dkt. No. 28. All
discovery matters in this case have been referred to the undersigned United States
magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from
Chief Judge Barbara M. G. Lynn. See Dkt. No. 24.
Plaintiff Cynthia Pauls and Defendants then filed a Joint Report that explained
that they had been “able to report that many of the issues in dispute [on Defendants’
Motion to Quash and Motion for Protective Order [Dkt. No. 23] (the “Original MPO”)]

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of
“written opinion” adopted by the Judicial Conference of the United States, this is a
“written opinion[] issued by the court” because it “sets forth a reasoned explanation for
[the] court's decision.” It has been written, however, primarily for the parties, to decide
issues presented in this case, and not for publication in an official reporter, and should
be understood accordingly.
1

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have been resolved amicably by agreement” other than those at issue in the Amended
Motion to Quash and Motion for Protective Order [Dkt. No. 28] (the “MPO”). In the
MPO, Defendants request that the Court enter an order properly limiting the scope of
the depositions of Pruco Life Insurance Company corporate representative, quashing
the deposition of Nancy Opdyke, and entering an appropriate protective order.
Plaintiff then filed a response to the MPO, see Dkt. No. 30, and, after the Court
terminated the Original MPO as moot, see Dkt. No. 31, Defendants filed a reply in
support of their MPO, see Dkt. No. 33.
The Court heard oral argument on the MPO on October 28, 2016. See Dkt. No.
34.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part Defendants The Prudential Life Insurance Company of America
and Pruco Life Insurance Company’s Amended Motion to Quash and Motion for
Protective Order [Dkt. No. 28].
Background
In the MPO, “Defendants seek to quash and seek a protective order regarding
two separate Notices of Depositions, including the 30(b)(6) deposition of Pruco Life
Insurance Company, because: (1) Plaintiff’s amended corporate representative
deposition notice improperly expanded the areas of testimony and added a duces
tecum; (2) the corporate representative topics are vague and not limited in time; and
(3) Plaintiff has still failed to withdraw the Opdyke deposition notice.” Dkt. No. 28 at
1. According to Defendants, “[o]nly after Defendants were forced to file a motion to
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quash did Plaintiff’s counsel agree to the date and location of the deposition of the
Pruco corporate representative. Despite efforts to narrow the scope of disputes
regarding the corporate representative topics, Plaintiff’s counsel issued a new notice
not only expanding the scope of the topics, but adding a duces tecum that is
inconsistent with the parties’ agreement and places an unnecessary burden on
Defendant.” Id.
Plaintiff responds that, in her Amended Notice of Intention to Take Videotaped
Oral Deposition Duces Tecum of Pruco Life Insurance Company, which notices Pruco’s
corporate representative deposition for November 30, 2016, see Dkt. No. 28-2 (the
“Amended Pruco Notice”), Plaintiff has limited the topics of requested testimony of
Defendant Pruco, including (exactly as Defendants’ counsel requested) specifically
including limiting date restrictions for the vast majority of the requested topics” and
that “all of the topics requested by Plaintiff are appropriate and all of Defendants’
objections to such should be overruled,” Dkt. No. 30 at 2-3. Plaintiff also explains that
she “included a duces tecum in her Amended [Pruco] Notice – a deposition notice that
was issued fifty-one (51) days in advance of the agreed-upon deposition date”; that
“Plaintiff never agreed not to include a duces tecum in her amended deposition notice”;
that “[f]ederal law specifically allows Plaintiff the right to request a deponent to bring
documents to a deposition”; and that “Plaintiff has done so.” Id. at 3. According to
Plaintiff, this Rule 30(b)(6) “deposition will be about the Ballinger Policy and the Pauls
Claim and Plaintiff wants to insure that the relevant documents are present at the
deposition so they can be properly discussed and cross-examined – which is Plaintiff’s
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right (not to mention the custom and practice of bad faith insurance policy litigation),”
and “[s]uch request is not improper or unduly burdensome.” Id.
Finally, Plaintiff reports that she “has entered into a formal written agreement
with Defendants to withdraw the deposition notice of Nancy Opdyke” and “and has
formally withdrawn the deposition notice of Nancy Opdyke pursuant to such
agreement.” Id. at 2. Plaintiff contends that she “has no idea why Defendants have
suggested to this Court that Plaintiff has not withdrawn this deposition notice,” where
“Plaintiff has fully and completely withdrawn the deposition notice of Nancy Opdyke
and there is no issue regarding the deposition of Nancy Opdyke being presented to the
Court at this time.” Id.
Although Defendants’ reply reiterates their request for an order quashing the
Opdyke deposition, Defendants do not otherwise address this matter in reply. See Dkt.
No. 33 at 5. And, at oral argument, Defendants’ counsel acknowledged that this issue
is moot. The MPO will therefore be denied as moot as to the request to quash the
notices deposition of Nancy Opdyke.
As to the Pruco Rule 30(b)(6) deposition topics, Defendants reply that “[m]ore
than doubling the listed areas of examination is not a contraction of the overbroad
nature of Plaintiff’s Notice of Deposition demanding Pruco present a corporate
representative prepared to testify about ‘each and every document,’ ‘every person’ and
‘all policies and procedures’ regardless of materiality or relevance to the issues in
dispute” and that “[t]he sixty-eight areas of examination set forth in Plaintiff’s
Amended [Pruco] Notice [] should be sufficiently definite and narrowly tailored to the
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relevant issues in dispute and the relevant time period to reasonably allow Pruco the
opportunity to prepare and present an individual or individuals to speak on behalf of
the company.” Dkt. No. 33 at 1. And, Defendants contend, “nothing in Plaintiff’s
Response explains why Defendants should be required to produce the same documents
twice”; that, “[s]ince the filing of this [MPO], Defendants have responded to Plaintiff’s
First Set of Request for Production and have produced documents in accordance with
the parties’ agreement set forth in their joint report”; and that “[t]here simply is no
basis to require Defendants to produce the same documents again at the deposition.”
Id. at 5.
Legal Standards
As amended effective December 1, 2015, Federal Rule of Civil Procedure 26(c)(1)
authorizes protective orders, for good cause shown, “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or
more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms,
including time and place or allocation of expenses, for the disclosure or discovery; (C)
prescribing a discovery method other than the one selected by the party seeking
discovery; (D) forbidding inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters; (E) designating the persons who may be
present while the discovery is conducted; (F) requiring that a deposition be sealed and
opened only on court order; (G) requiring that a trade secret or other confidential
research, development, or commercial information not be revealed or be revealed only
in a specified way; and (H) requiring that the parties simultaneously file specified
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documents or information in sealed envelopes, to be opened as the court directs.” FED.
R. CIV. P. 26(c)(1); see also Talon Transaction Technologies, Inc. v. StoneEagle Servs.
Inc., No. 3:13-cv-902-P, 2014 WL 6819846, at *3 (N.D. Tex. Dec. 4, 2014) (explaining
that, “‘[w]hen a Rule 30(b)(6) deposition notice references multiple topics, the party
named in the deposition notice must either move for a protective order regarding each
topic or designate a person to testify regarding each topic’”; that “[f]ailing to appear
and testify as to designated topics for a Rule 30(b)(6) deposition ‘is not excused on the
ground that the discovery sought was objectionable, unless the party failing to act has
a pending motion for a protective order under Rule 26(c)’”; and that “a pending motion
for protective order only protects a party from designating a witness to appear and
testify as to the particular topics addressed in the pending motion” (quoting Ferko v.
Nat’l Ass’n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 142 (E.D. Tex. 2003); FED.
R. CIV. P. 37(d)(2))).
“[T]he burden is upon [the party seeking the protective order] to show the
necessity of its issuance, which contemplates a particular and specific demonstration
of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int’l,
134 F.3d 302, 306 (5th Cir. 1998) (citation omitted). A protective order is warranted in
those instances in which the party seeking it demonstrates good cause and a specific
need for protection. See Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th Cir.
1990). And the United States Court of Appeals for the Fifth Circuit recently explained
that “[t]he federal courts have superimposed a somewhat demanding balancing of
interests approach to the Rule. Under the balancing standard, the district judge must
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compare the hardship to the party against whom discovery is sought against the
probative value of the information to the other party. Courts also weigh relevant public
interests in this analysis.” Cazorla v. Koch Foods of Mississippi, L.L.C., ___ F.3d ___,
No. 15-60562, 2016 WL 5400401, at *10 (5th Cir. Sept. 27, 2016) (footnotes and
internal quotation marks omitted).
The Court has broad discretion in determining whether to grant a motion for a
protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The
trial court is in the best position to weigh fairly the competing needs and interests of
parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
Federal Rule of Civil Procedure 26(c)(3) provides that, in connection with a
motion under Rule 26(c) for a protective order, Federal Rule of Civil Procedure “37(a)(5)
applies to the award of expenses.” FED. R. CIV. P. 26(c)(3).
The United States Court of Appeals for the Fifth Circuit has explained in this
context of a Federal Rule of Civil Procedure 30(b)(6) deposition of a corporate
representative:
Rule 30(b)(6) is designed “to avoid the possibility that several
officers and managing agents might be deposed in turn, with each
disclaiming personal knowledge of facts that are clearly known to persons
within the organization and thus to the organization itself.” Therefore,
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
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sources.
“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.” Thus, a rule 30(b)(6)
designee does not give his personal opinions, but presents the
corporation’s “position” on the topic. When a corporation produces an
employee pursuant to a rule 30(b)(6) notice, it represents that the
employee has the authority to speak on behalf of the corporation with
respect to the areas within the notice of deposition. This extends not only
to facts, but also to subjective beliefs and opinions. If it becomes obvious
that the deposition representative designated by the corporation is
deficient, the corporation is obligated to provide a substitute.
We agree with BRA that Cajun violated rule 30(b)(6) by failing to
prepare Grigsby with respect to issues that although not within his
personal knowledge, were within the corporate knowledge of the
organization, such as whether BRA had presented a warranty claim to
Cajun. At the very least, Cajun could have designated another witness
with personal or corporate knowledge of the questions asked.
If the designated “agent is not knowledgeable about relevant facts,
and the principal has failed to designate an available, knowledgeable, and
readily identifiable witness, then the appearance is, for all practical
purposes, no appearance at all.” Resolution Trust [Corp. v. S. Union Co.,
Inc., 985 F.2d 196, 187 (5th Cir. 1993).] In Resolution Trust we affirmed
sanctions against a party that possessed documents that plainly
identified a witness as having personal knowledge of the subject of the
deposition but did not furnish those documents or designate the witness
until after it had designated two other witnesses with no personal
knowledge.
Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 432-34 (5th Cir. 2006) (footnotes
and citations omitted).
Rule 30(b)(6) requires that a party seeking to depose an organization “must
describe with reasonable particularity the matters for examination.” FED. R. CIV. P.
30(b)(6) (“In its notice or subpoena, a 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.
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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. .... The persons
designated must testify about information known or reasonably available to the
organization.”). “For Rule 30(b)(6) to effectively function, the requesting party must
take care to designate, with painstaking specificity, the particular subject areas that
are intended to be questioned, and that are relevant to the issues in dispute.
Otherwise, an overly broad Rule 30(b)(6) notice may subject the noticed party to an
impossible task. If the noticed organization cannot identify the outer limits of the areas
of inquiry noticed, compliant designation is not feasible.” Hartford Fire Ins. Co. V. P
& H Cattle Co., No. 05-cv-2001, 2009 WL 2951120, at *10 (D. Kan. Sept. 10, 2009).
Federal Rule of Civil Procedure 30(b)(2) provides: “If a subpoena duces tecum
is to be served on the deponent, the materials designated for production, as set out in
the subpoena, must be listed in the notice or in an attachment. The notice to a party
deponent may be accompanied by a request under [Federal Rule of Civil Procedure] 34
to produce documents and tangible things at the deposition.” FED. R. CIV. P. 30(b)(2).
Federal Rule of Civil Procedure 34(b)(2)(A) provides that “[t]he party to whom the
request is directed must respond in writing within 30 days after being served” but that
“[a] shorter or longer time may be stipulated to under Rule 29 or be ordered by the
court.” FED. R. CIV. P. 34(b)(2)(A).
Finally, once discovery is authorized by rule, stipulation, or court order or
because the parties have conferred as Federal Rule of Civil Procedure 26(f) requires,
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“[u]nless, on motion, the court orders otherwise for the parties’ and witnesses’
convenience and in the interests of justice: (A) methods of discovery may be used in any
sequence; and (B) discovery by one party does not require any other party to delay its
discovery.” FED. R. CIV. P. 26(d)(2). “Rule 26(d) generally governs the sequencing of
discovery unless the Court enters a protective order under Rule 26(c) or another order
governing the sequence of conducting discovery under Federal Rule of Civil Procedure
16(b) or 26(d) or the parties make a stipulation under Federal Rule of Civil Procedure
29. Absent a court order providing otherwise or a binding stipulation, Rule 26(d)(2)(A)
generally dictates that Plaintiffs may seek information through an interrogatory even
if Defendant believes the subject matter would be better explored through a
deposition.” Heller, 303 F.R.D. at 493.
But “Rule 26(d) gives [the] court wide discretion to craft flexible and nuanced
terms of discovery.” Cazorla, 2016 WL 5400401, at *18 (footnote omitted); accord
Celanese Corp. v. Clariant Corp., No. 3:14-cv-4165-M, 2015 WL 9269415, at *4 (N.D.
Tex. Dec. 21, 2015) (“Regardless of whether North Carolina or Texas law applies to
Celanese’s claim in this case, to establish the reasonableness of the defense costs that
Celanese incurred in the Courtaulds Cases and the Selby Site Litigation, Clariant
made clear at oral argument that it primarily wants access to these documents to
determine if additional settlement offers or demands were made to Celanese in those
cases that might not be reflected in documents already produced, whether Celanese
accepted or rejected those demands, and, if any demand was rejected, why Celanese
rejected it. As the Court discussed with counsel at oral argument, that information can
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best be obtained in the first instance by an interrogatory to Celanese asking for
precisely that information, which, subject to any proper objections, see generally Heller
v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014), Celanese would be obligated to pull
together into a verified answer by reviewing all sources of responsive information
reasonably available to it (including these documents at issue on this motion), and as
to which Clariant could then, if appropriate, take a follow-on deposition.”). And, “while,
as a general matter, under Rule 26, a party may seek discovery through any permitted
method in any sequence, ... ‘there’s certainly case law where there are some kinds of
contention interrogatories where courts have felt that, in their discretion, they could
say it ought to be a deposition instead, like a 30(b)(6) deposition.’” Heller, 303 F.R.D.
at 493 (citing IBP, Inc. v. Mercantile Bank of Topeka, 179 F.R.D. 316, 321 (D. Kan.
1998) (sustaining objections to contention interrogatories where “[o]ther discovery
procedures, such as depositions and production of documents, better address whatever
need there be for [any] kind of [requested] secondary detail”)).
Analysis
I.

Deposition topics
“Pruco objects to, moves to quash, and seeks a protective order because the

corporate representative topics identified in the Amended Pruco Notice are overly
broad, unduly burdensome, and fail to describe the topics for testimony with
reasonable particularity,” and Pruco contends that “[t]he Amended Pruco Notice
contains a number of extremely broad topics, many of which have little specificity and
some have no discernable connection to Plaintiff’s claims in this case” and that “[t]he
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Amended Pruco Notice did not narrow any of Plaintiff’s overly broad deposition topics
and, in fact, added more objectionable topics.” Dkt. No. 28 at 3-4.
Pruco explains that its “objections to the Amended Pruco Notice generally fall
into the following categories: (1) Pruco objects to the deposition topics because they fail
to describe with reasonable specificity the time period covered by the topics; (2) Pruco
objects to the deposition topics because they are overly broad, unduly burdensome,
vague, harassing, and fail to describe with reasonable specificity the subject matter of
the questions to be asked and seek information beyond the matters in dispute.” Id. at
4.
As to the first category, Pruco contends that “[f]ew of Plaintiff’s proposed topics
in the Amended Pruco Notice are limited in time, however the broadest request in
particular contain no time limitation nor is the relevant time period defined within the
deposition notice” and that “Pruco seeks protective order to narrow the time period if
the corporate representative topics in the Amended Pruco Notice to the relevant time
period in this case.” Id. at 4.
As to the second category, Pruco asserts that the 68 topics of examination are
overly broad, unduly burdensome, and seek deposition testimony from Pruco that is
properly directed to third parties [Topic Nos. 1, 14, and 19] and, more specifically, that
“Defendants object [(1)] to the deposition topics in the Amended Pruco Notice that seek
testimony regarding undefined sets of documents” [Topic Nos. 4, 6, 7, 9, 10, 32, 39-44,
and 54-55], (2) “to the deposition topics in the Amended Pruco Notice that seek
testimony regarding undefined groups of people” [Topic Nos. 12, 15, 18, 33, and 53], (3)
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“to the deposition topics in the Amended Pruco Notice that seek discovery of
information related to Pruco’s issuance of insurance policies generally without any
limitation” [Topic Nos. 21, 22, 23, 24, 25, 26, and 37], and (4) “to the deposition topics
in the Amended Pruco Notice that seek Pruco’s testimony regarding its interpretation
of Louisiana law and corresponding claim handling procedures” [Topic Nos. 45, 46, 47,
48, and 58]. Id. at 4-7.
Finally, Pruco notes that Plaintiff seeks testimony regarding “[t]he relationship
between the Prudential Insurance Company of America and Pruco Life Insurance
Company” and asserts that “[t]his topic is impermissibly vague and not connected in
any way to the Policy and Claim at issue.” Id. at 7.
Plaintiff responds that all of the topics in the Amended Pruco Notice “are focused
directly to the issues involved in this case”; that “[t]he Amended Notice does not
expand the areas of inquiry from the original notice”; and that, “exactly as Defendants
requested, the Amended [Pruco] Notice narrows the topics to very focused specific time
frames and to the issues directly related to this lawsuit.” Dkt. No. 30 at 4. And,
Plaintiff contends, “there is not a single requested topic that is overly broad and not
directly related to the specific issues in this case. Each such topic is described with very
specific particularity. And while the Defendants suggest it is ‘overly burdensome’ to
present a witness on some topics, it is hard to understand or see any burden placed
upon Defendant Pruco at all and Defendants do not set forth what any particular
burden may be. In addition (which goes hand-in-hand with not being able to
understand exactly what the alleged burden on Defendants might be), Defendants have
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failed to provide this Court with any evidence of any alleged burden – and by failing
to do so has waived their burdensome objection.” Id. at 6.
And Plaintiff reports that “most all of the topics set forth in the amended notice
are greatly limited in time – the majority limited to only a few months” – and that
“[t]here are only six (6) of the total of sixty-eight (68) requests that aren’t limited to a
very specific time in the request itself” and “those six (6) topics are topics that don’t
lend themselves to being date restricted.” Id. at 7, 9. But, Plaintiff contends, “a simple
elementary straight forward reading of these six (6) requests demonstrate that the
requested topics are relevant, sufficiently focused and very specific to this lawsuit.” Id.
at 9.
Plaintiff further responds that “Defendants’ objection that a few of the requested
topics ‘should not be directed to them but instead directed to a third party’ is
inappropriate, misplaced and simply not understood by Plaintiff’s counsel” and that the
Amended Pruco Notice “seeks what ‘Defendant Pruco knows’ not what third parties
know.” Id. “If Defendant Pruco knows something relevant that a third party did, that
is fair game to be explored in deposition. If they do not have any such knowledge, then
a simple ‘We don’t know’ is a responsive appropriate answer in the deposition.” Id.
As a preliminary matter, the Court is not persuaded by Defendants’ contention
that Plaintiff improperly expanded the topics of examination from the original notice
to the Amended Pruco Notice and will deny the MPO on that basis.
At oral argument, the Court went through the categories of objections with
counsel and clarified several matters, as reflected below.
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Defendants’ counsel reported at oral argument that Pruco is not pressing its
objections to Topic Nos. 34 and 36 and confirmed that Pruco is no objecting to Topic
Nos. 2, 3, 6, 7, 8, 9, 10, 11, 13, 28, 29, 30, 31, 35, 49, 50, 56, 57, 64, and 65. Defendants’
counsel also clarified their understanding that, in the Amended Pruco Notice, Plaintiff
is no longer seeking Rule 30(b)(6) representative testimony on Plaintiff on a broadly
worded topic of “[t]he relationship between the Prudential Insurance Company of
America and Pruco Life Insurance Company.”
Defendants’ counsel and Plaintiff’s counsel confirmed an understanding, after
discussion with the Court, that the scope of topics directed toward Defendants’
insurance policies and claims handling procedures and understandings of Defendants’
obligations under Louisiana law and a duty of good faith and fair dealing is limited to
the policy, claim, and insured at issue in this case and similar policies and claims and
insured of the same type or kind during the time frame applicable to the claim at issue
in this case. With that understanding and the understanding that Pruco’s
representative as well as Plaintiff’s counsel will have the benefit of Defendants’
recently served answers to interrogatories and requests for production that Defendants
contend overlap with many of the topics in the Amended Pruco Notice, the Court denies
the MPO as to, and overrules Pruco’s objections (including based on asking for
improper legal opinions or misstating the governing legal standard) to, Topic Nos. 4,
5, 12, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 32, 33, 37, 38, 39, 40, 41, 42, 43, 44,
45, 46, 47, 48, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, and 68. With the agreed
understanding explained above of the limited scope of the scope of the topics, and with
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the particular limitations that the amended topics include on the documents at issue
in the topics, the Court determines that these are appropriate matters for examination
that Plaintiff has described with reasonable particularity in compliance with Rule
30(b)(6). Particularly in light of Defendants’ counterclaim, Plaintiff is entitled to
examine a corporate representative under oath regarding the documents that form the
basis for Pruco’s actions on (and denial of) the claim at issue and its counter-claim for
rescission of the policy at issue as well as other aspects of Defendants’ actions on that
policy and understanding of its application for insurance and its insurance policy and
the governing law and its legal obligations as to the claim and policy at issue. To the
extent that Defendants have a different view of the governing legal standards as to the
claims and defenses at issue in this case, Pruco’s representative can appropriately
qualify any answers, as necessary. The Court does not find that the topics are
inappropriate for a Rule 30(b)(6) deposition or improperly ask Defendants to marshal
their evidence or are so much more appropriately conveyed through an interrogatory
answer or a request for production of documents that it is appropriate under Rule 30(d)
to require Plaintiff to proceed first – or only – by way of interrogatories or requests for
production.
At oral argument, Defendants’ counsel acknowledged that most of the topics are
not more specifically limited in their referenced time frame. Pruco’s objections as to the
time period covered by Topic No. 58 are sustained only insofar as the Court determines
that the proper scope of examination under these topics is limited to the time frame
applicable to the claim at issue in this case. Pruco’s objection to the time period covered
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by Topic No. 66 is overruled where the Court determines that the area of examination
described by the topic is appropriate under Rule 26(b). To the extent that, as to Topic
Nos. 41, 42, 43, 44, 46, 55, and 66, Pruco has raised a privilege or work product
objection to the extent that these topics seek privileged information as the time period
that they each cover includes a period after Defendant reasonably anticipated
litigation, or, more specifically, served a demand letter on January 26, 2016, the Court
determines that those privilege and work product concerns can be most appropriately
addressed through objections to, and, as appropriate, instructions not to answer (in
whole or in part), to particular questions at deposition under Federal Rule of Civil
Procedure 30(c)(2).
The Court sustains in part Pruco’s objections that the matters for examination
under Topic No. 14 seek information within the control of third parties. The matters
for examination under these topics will be limited to Pruco’s knowledge of “medical
exams Pruco (or someone on Pruco’s behalf) requested be given to David Ballinger in
connection with his application and/or the underwriting for the Ballinger Policy” and
the information requested from or provided to Pruco as a result of the relevant work
by third parties. The Court overrules Pruco’s objections that the matters for
examination under Topic Nos. 1 and 19 seek information within the control of third
parties because those topics, as worded, are limited to Pruco’s knowledge and the
information that it has.
The Court overrules Pruco’s objections to Topic Nos. 63 and 67, which the Court
determines are appropriate matters for examination that Plaintiff has described with
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reasonable particularity in compliance with Rule 30(b)(6). Plaintiff can appropriate ask
Pruco’s corporate representative about authorizations that Pruco possessed that
purported to allow Pruco to obtain the medical records of David Ballinger and about
the terms and provisions of a policy at issue in this case.
Except to the extent that the Court has granted the MPO and sustained Pruco’s
objections to particular topics in the Amended Pruco Notice, as discussed above, or to
the extent that the disputes at issue in the MPO have been resolved by agreement,
Defendants’ MPO as to the Rule 30(b)(6) deposition topics is otherwise denied, and
Pruco’s objections to the topics in the Amended Pruco Notice are overruled.
II.

Duces tecum
In Pruco’s objections to the Amended Pruco Notice, Pruco contends that the

duces tecum in the Amended Notice “mirrors word for word Plaintiff’s First Set of
Request for Production, the responses to which are not yet due”; that “Pruco will
respond to Plaintiff’s First Set of Request for Production in accordance with the
deadlines required by the Federal Rules of Civil Procedure” and “refers Plaintiff to
such responses”; and that “Pruco objects to the production of documents at the
deposition on the grounds that it is unreasonable and seeks to impose an unreasonable
burden on Pruco to produce the same documents twice,” where “[t]he parties expressly
agreed in their joint report following the Rule 26(f) conference that responsive
documents which are greater than fifty (50) pages would be produced in a bates-labeled
electronic format,” where “Defendant’s Responses to the Requests for Production are
due prior to the scheduled deposition,” and where, “[s]ubject to its objections, the
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non-privileged responsive documents will be produced in bates-labeled electronic prior
to the deposition and Defendant Pruco should not be required to provide a duplicate
set.” Dkt. No. 28-5 at 19 of 21.
The Court agrees. “The notice to a party deponent may be accompanied by a
request under Rule 34 to produce documents and tangible things at the deposition.”
Fed. R. Civ. P. 30(b)(2). Where the requesting party has already served the same Rule
34 requests on a party that it then includes in a duces tecum to a deposition notice to
the same party for its corporate representative’s Rule 30(b)(6) deposition, the party
need only respond and produce the documents once. That will generally be, as here, in
response to the originally served requests, where a duces tecum must, pursuant to
Federal Rules of Civil Procedure 30(b)(2) and 34(b)(2)(A), afford the party deponent at
least 30 days in which to respond. See Gilbert v. E.I. Dupont De Nemours & Co., No.
3:15CV00988 (AWT), 2016 WL 3211682, at *3 (D. Conn. June 9, 2016); Thomas v.
WSFM, L.L.C., Civ. A. No. 07-1336, 2008 WL 821948, at *1 (E.D. La. Mar. 26, 2008).
And so it is here.
Plaintiff’s desire to have the deponent bring relevant documents to the
deposition and not put Plaintiff to the burden of getting copies of what is reported to
be 1,200 pages of document production to the deposition location does not change the
analysis.
The Court grants Defendants’ MPO as to the duces tecum and enters this
protective order to preclude any further obligation by Pruco to comply with the duces
tecum.
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III.

Award of expenses
Under Rules 26(c)(3) and 37(a)(5), the Court determines that, under all of the

circumstances presented here, Plaintiff and Defendants should bear their own
expenses, including attorneys’ fees, in connection with the MPO.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Defendants The Prudential Life Insurance Company of America
and Pruco Life Insurance Company’s Amended Motion to Quash and Motion for
Protective Order [Dkt. No. 28].
SO ORDERED.
DATED: October 28, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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