Dennis v. United States of America

Filing 33

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant United States of America's Motion to Quash or, Alternatively, for Protective Order [Dkt. No. 19 ]. (Ordered by Magistrate Judge David L. Horan on 10/23/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BARBARA DENNIS, individually, and
on behalf of the Estate of JAMES
CARTER,
Plaintiff,
V.
UNITED STATES OF AMERICA,
Defendant.

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No. 3:16-cv-3148-G-BN

MEMORANDUM OPINION AND ORDER
Defendant United States of America has filed a Motion to Quash or,
Alternatively, for Protective Order. See Dkt. No. 19 (the “MPO”). Defendant “moves to
quash or, alternatively, for protective order from Plaintiff Barbara Dennis’s Amended
Second Notice of Deposition of a Corporate Representative with subpoenas duces
tecum, dated August 8, 2017 pursuant to Federal Rule of Civil Procedure 26(c).” Id. at
1.
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 Senior United States District Judge A. Joe Fish. See Dkt. No. 5.
Plaintiff Barbara Dennis filed a response, see Dkt. Nos. 23 & 24, and Defendant
filed a reply, see Dkt. No. 27. The Court then denied Ms. Dennis’s Motion for Leave to
File Sur-Reply Brief [Dkt. No. 28] because “[t]he matters that Plaintiff seeks to address
in a sur-reply brief – alleged factual inaccuracies and misstatements of law in
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Defendant's reply – are not the kind of new issues, arguments, legal theories, or
evidence presented for the first time in a reply that the responding party, in fairness,
must be given an opportunity to address.” Dkt. No. 29.
For the reasons and to the extent explained below, the Court GRANTS in part
and DENIES in part Defendant United States of America’s Motion to Quash or,
Alternatively, for Protective Order [Dkt. No. 19].
Background
In the MPO, Defendant explains that Ms. Dennis
filed suit against the United States under the Federal Tort Claims Act
(FTCA) for alleged negligent medical treatment of James Carter and
amended her complaint on March 15, 2017. (Dkts. 1, 14). Dennis asserts
Defendant is directly and vicariously liable for alleged negligence related
to the care and treatment of Mr. Carter, who was a patient at the Dallas
VA Medical Center or the Community Living Center (CLC) for slightly
more than a year before he died at the age of 87. (Dkt. 14 at 5-7). Dennis
does not allege any particular individual was negligent, but avers
Defendant is responsible for the acts of the VA’s team of “physicians,
doctors, nurses, staff members, technicians, specialists, non-specialists,
and/or other personnel” who provided care to Mr. Carter. (Dkt. 14 at 4, 5,
7). Dennis’s second amended initial disclosures identify more than eighty
(80) VA employees with alleged knowledge of relevant facts in this case.
(App’x 45-53).
Dkt. No. 20 at 2.
Defendant opposes Ms. Dennis’s noticed Federal Rule of Civil Procedure 30(b)(6)
corporate representative deposition because she “seeks a contention deposition,
covering an entire year of medical care provided to an 87 year old patient at the VA
with a complex medical history involving than 80 employees” and, although Ms. Dennis
“revised the topics set forth in the notice, seeking to depose a representative regarding
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‘facts,’” “Defendant contends that the request to depose a corporate representative
regarding (a) ‘facts’ related to Defendant’s legal theories invades the work product
privilege, and (b) ‘facts’ related to the medical care provided by a large number of
medical professionals is unduly burdensome.” Id. at 1 (emphasis removed).
The current notice directs “Defendant Dallas VA Medical Center ... to designate
a person or persons to testify on its behalf on the following matters:”Dennis
1.
2.
3.
4.
5.

The facts upon which Defendant bases denials and affirmative
defenses stated in its amended answer;
The facts upon with Defendant bases its discovery responses,
including its interrogatory answers and document production;
The facts related to the leg injury suffered by Mr. Carter while
under the care of the Dallas VA Medical Center including its cause
and treatment;
The facts related to the malnutrition that was a factor in Mr.
Carter's death at the Dallas VA Medical Center, including its
cause and treatment; and
The records and documents requested in Exhibit A to this Notice.

Dkt. 21-4 at 7-8 of 25 (App’x 101-02).
Defendant explains that it “does not object, in theory, to the request to depose
a corporate representative to the extent Dennis seeks to identify facts that are outside
the knowledge of the individuals who treated Mr. Carter” but “objects to [Ms. Dennis’s]
request to depose a corporate representative regarding (1) Defendant’s legal theories
and contentions and (2) facts contained in the entire 10,826 pages of documents
produced in this case, including the medical records, administrative documents, and
witnesses identified in those documents; (3) facts not included in the medical records
regarding the decisions and judgment of the medical professionals identified in the
medical records; and (4) facts related to the care provided by multiple medical
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professionals for Mr. Carter’s leg injury and malnutrition.” Dkt. No. 20 at 12-13.
“Defendant contends [Ms. Dennis] should discover these facts directly from relevant
medical providers who provided care to Mr. Carter, not a representative.” Id. at 13.
“Thus, Defendant moves to quash the deposition in its entirety. In the
alternative, if Defendant is required to produce a corporate representative, Defendant
moves for a protective order limiting the scope of the deposition [of a corporate
representative to facts contained in the medical records related solely to Mr. Carter’s
leg injury and malnutrition], and to stay the deposition until no earlier than 30 days
after the Court rules on this motion.” Id. at 1-2, 13 (emphasis removed).
More specifically, Defendant asserts that “[t]here is good cause to quash the
deposition, or in the alternative, to issue a protective order limiting the deposition of
a corporate representative” because
•

as to Topics 1 and 2 in Plaintiff’s Amended Second Notice of Deposition, Ms.
“Dennis’s request to depose a representative regarding Defendant’s affirmative
defenses and interrogatory responses is an improper contention deposition”;

•

as to Topics 3 and 4, Ms. “Dennis’s request to depose a representative regarding
specific medical conditions is unduly burdensome and not proportional to the
needs of the case”;

•

as to Topic 5, Ms. “Dennis’s request to depose a representative regarding the
entire record is unduly burdensome and not proportional to the needs of the
case”;

•

as to Topics 3 and 4, Ms. “Dennis fails to establish that she cannot obtain the
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information she seeks through other less intrusive means”; and
•

as to Topics 1 and 5, Ms. “Dennis cannot require Defendant to marshal its
evidence and identify all documents supporting its defenses at a representative’s
deposition.”

Id. at ii.
Ms. Dennis responds that “that the deposition sought is proper and necessary,
and Defendant has failed to meet its legal burden to show otherwise” and that she “has
attempted to discover the facts upon which Defendant allegedly relies to support its
positions through written discovery, including interrogatories and requests for
production. Defendant, however, has attempted in its responses, to ‘hide the ball,’ and
has failed and refused to disclose the facts upon which it allegedly relies.” Dkt. No. 23
at 1-2.
Ms. Dennis adds that, “[s]hould [she] not be permitted to obtain discovery of the
facts upon which Defendant purports to rely though the 30(b)(6) deposition that is the
subject of Defendant’s motion, Plaintiff reserves the right to file a Motion to Compel
more straightforward and informative written discovery responses from Defendant.”
Id. at 2.
In reply, Defendant argues that
[t]he Federal Rules of Civil Procedure permit depositions of a corporate
representative – but they do not ipso facto permit Plaintiff Barbara
Dennis to depose a representative on the topics identified in her notice of
deposition. Topics 1 and 2 patently state that Dennis seeks to depose a
representative on Defendant’s affirmative defenses, which invades
Defendant’s work product privilege. (Dft App’x at 101). Topic 5 states that
Dennis seeks to depose a representative on the entire medical file, which
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would require Defendant to marshal all of its evidence to prepare the
deponent for deposition. (Id. at 102). And finally, Topics 3 and 4 seek to
depose a representative regarding medical treatment for two distinct
medical conditions, which should be addressed by fact witnesses, who can
explain when, where, why, and how they treated Mr. Carter. (Id. at 101).
Defendant thus seeks to quash the deposition as noticed.
Dkt. No. 27 at 1.
Legal Standards
“Unless otherwise limited by court order, ... [p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance 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. Information within this scope of discovery need not be admissible in
evidence to be discoverable.” FED. R. CIV. P. 26(b)(1); accord Booth v. City of Dallas, 312
F.R.D. 427, 433 (N.D. Tex. 2015).
“Under Rule 26(b)(1), discoverable matter must be both relevant and
proportional to the needs of the case – which are related but distinct requirements.”
Samsung Electronics Am., Inc. v. Chung, ___ F.R.D. ___, No. 3:15-cr-2108-D, 2017 WL
2832621, at *25 (N.D. Tex. June 26, 2017). “To be relevant under Rule 26(b)(1), a
document or information need not, by itself, prove or disprove a claim or defense or
have strong probative force or value. If it were otherwise, it would make little sense for
Rule 26(b)(1) to direct courts to consider whether discovery that is relevant to any
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party’s claim or defense is also important in resolving the issues.” Id. at *26.
The party resisting discovery must show specifically how each discovery request
is not relevant or otherwise objectionable. See McLeod, Alexander, Powel & Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). A party resisting discovery must show
how the requested discovery is overly broad, unduly burdensome, or oppressive by
submitting affidavits or offering evidence revealing the nature of the burden. See
Merrill v. Waffle House, Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005); see also S.E.C. v.
Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A party asserting undue burden typically
must present an affidavit or other evidentiary proof of the time or expense involved in
responding to the discovery request.”). “Failing to do so, as a general matter, makes
such an unsupported objection nothing more than unsustainable boilerplate.” Heller
v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014)
For the reasons the Court has previously explained, the amendments to Rule 26
do not alter the burdens imposed on the party resisting discovery discussed above. See
Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 463-69
(N.D. Tex. 2015). Rather, just as was the case before the December 1, 2015
amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can – and must – limit
proposed discovery that it determines is not proportional to the needs of the case,
considering the importance 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 – and the court must do
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so even in the absence of a motion. See Crosby v. La. Health Serv. & Indem. Co., 647
F.3d 258, 264 (5th Cir. 2011). Thus, as amended, Rule 26(b)(2)© provides that, “[o]n
motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that: (I) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to obtain the information by discovery
in the action; or (iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).” FED. R. CIV. P. 26(b)(2)©.
But a party seeking to resist discovery on these grounds still bears the burden
of making a specific objection and showing that any discovery request that is relevant
to any party’s claim or defense fails the proportionality calculation mandated by Rule
26(b) by coming forward with specific information to address – insofar as that
information is available to it – the importance 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. Accord First
Am. Bankcard, Inc. v. Smart Bus. Tech., Inc., No. CV 15-638, 2017 WL 2267149, at *1
(E.D. La. May 24, 2017) (“In this instance, defendant has offered nothing more than
a boilerplate proportionality objection, without providing any information concerning
burden or expense that the court would expect to be within defendant's own
knowledge.”).
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The party seeking discovery, to prevail on a motion for protective order, may
well need to make its own showing of many or all of the proportionality factors,
including the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources,
and the importance of the discovery in resolving the issues, in opposition to the
resisting party’s showing.
And the party seeking discovery is required to comply with Rule 26(b)(1)’s
proportionality limits on discovery requests; is also subject to Federal Rule of Civil
Procedure 26(g)(1)’s requirement to certify “that to the best of the person’s knowledge,
information, and belief formed after a reasonable inquiry: ... (B) with respect to a
discovery request..., it is: (I) consistent with these rules and warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law; (ii) not interposed for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii)
neither unreasonable nor unduly burdensome or expensive, considering the needs of
the case, prior discovery in the case, the amount in controversy, and the importance
of the issues at stake in the action”; and faces Rule 26(g)(3) sanctions “[i]f a
certification violates this rule without substantial justification.” FED. R. CIV. P.
26(g)(1)(B), 26(g)(3); see generally Heller, 303 F.R.D. at 475-77, 493-95.
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
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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; ©
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
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©’”; 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))).
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“[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
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., 838 F.3d 540,
555 (5th Cir. 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).
The amendments to Rule 26(b) do not alter the basic allocation of the burden on
the party resisting discovery to – in order to prevail on its motion for protective order
– specifically object and show that the requested discovery does not fall within Rule
26(b)(1)’s scope of relevance (as now amended) or fails the required proportionality
calculation or is otherwise objectionable. See McLeod, 894 F.2d at 1485; Heller, 303
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F.R.D. at 483-93.
Federal Rule of Civil Procedure 26(c)(3) provides that, in connection with a
motion under Rule 26© 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).
Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel
is granted, or if the requested discovery is provided after the motion was filed, “the
court must, after giving an opportunity to be heard, require the party ... whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s
fees,” except that “the court must not order this payment if: (I) the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery without
court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.”
FED. R. CIV. P. 37(a)(5)(A); accord Washington v. M. Hanna Const. Inc., 299 F. App’x
399, 402 (5th Cir. 2008).
Federal Rule of Civil Procedure 37(a)(5)(B)-© further provides in pertinent part
that, “[i]f the motion is denied, the court may issue any protective order authorized
under Rule 26© and must, after giving an opportunity to be heard, require the movant,
the attorney filing the motion, or both to pay the party ... who opposed the motion its
reasonable expenses incurred in opposing the motion, including attorney’s fees,” “[b]ut
the court must not order this payment if the motion was substantially justified or other
circumstances make an award of expenses unjust,” and that, “[i]f the motion is granted
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in part and denied in part, the court may issue any protective order authorized under
Rule 26© and may, after giving an opportunity to be heard, apportion the reasonable
expenses for the motion.” FED. R. CIV. P. 37(a)(5)(B)-©; accord De Angelis v. City of El
Paso, 265 F. App’x 390, 398 (5th Cir. 2008).
“[A] motion is ‘substantially justified’ if there is a genuine dispute, or if
reasonable people could differ as to [the appropriateness of the contested action].” De
Angelis, 265 F. App’x at 398 (internal quotation marks omitted); see also Heller, 303
F.R.D. at 477 (“The United States Supreme Court has defined ‘substantially justified’
to mean ‘justified in substance or in the main – that is, justified to a degree that could
satisfy a reasonable person.’ ‘Substantial justification’ entails a ‘reasonable basis in
both law and fact,’ such that ‘there is a genuine dispute ... or if reasonable people could
differ [as to the appropriateness of the contested action].’” (citations omitted)).
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).
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,
“[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© 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)
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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
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
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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
A.

Topic 1 – “The facts upon which Defendant bases denials and affirmative
defenses stated in its amended answer”

Contention interrogatories often ask for a recitation of the facts on which a
claim, defense, allegation, or denial is based. The content or substance of an attorney’s
evaluation of why or how those facts support a claim or defense may be protected work
product. But “a contention interrogatory seeking a description of the ‘factual basis’ [not
privileged communications or work product] [is] precisely the sort contemplated by
Fed. R. Civ. P. 33(a)(2)” and is not protected work product. Ill. Union Ins. Co. v. La.
Health Serv. and Indemnity Co., Civ. A. No. 16-6604, 2017 WL 2955355, at *2 (E.D. La.
Apr. 13, 2017).
The same analysis applies to a Rule 30(b)(6) deposition topic seeking the
identification of facts. See Malibu Consulting Corp. v. Funair Corp., Civ. A. No.
SA-06-CA-0735 XR, 2007 WL 3995913, at *1 (W.D. Tex. Nov. 14, 2007) (“I agree with
the line of cases which holds that a Rule 30(b)(6) deposition which seeks information
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concerning the factual support for allegations found in the complaint, which would be
discoverable through contention interrogatories, is outside the protection of the
work-product doctrine and is permissible.” (footnote omitted)); accord Waste Mgmt. of
La., LLC v. River Birch, Inc., Civ. A. No. 11-2405, 2017 WL 2831700, at *3 (E.D.La.
June 30, 2017).
Likewise, “while, in general, investigative reports prepared by the party’s
attorney are protected by the work-product doctrine (which is governed by federal law),
a corporate representative cannot be instructed not to answer a question seeking
factual information within a designated topic for Rule 30(b)(6) testimony simply
because the corporate representative learned the information from an attorney who
gathered the information in anticipation of litigation or for trial. The attorney’s
investigation and the manner in which he or she gathered and organized and analyzed
the information and presented it to the corporate representative may itself be protected
work product, but the underlying factual information itself remains discoverable
through the corporate representative’s testimony. Where the deponent is asked only
about facts that are responsive to the noticed deposition topics, testifying to the
underlying facts and that the deponent learned a fact from the company’s attorney –
without more – does not impermissibly reveal protected attorney work product,
including the attorney’s mental processes, impressions, conclusions, opinions, or legal
theories.” OrchestrateHR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2015 WL 11120526,
at *7 (N.D. Tex. July 15, 2015) (citations omitted).
Defendant’s work product objection to Topic 1 is not well-taken and overruled.
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And the Court cannot accept Defendant’s assertion that this testimony must
await expert reports. As the Court has previously concluded, “a party cannot avoid
discovery – whether by an interrogatory, a Rule 36 request, or Federal Rule of Civil
Procedure 30(b)(6) deposition testimony – of its own views on a factual matter in
dispute (or perhaps, in fact, not in dispute) simply because its view on that matter may
be informed by consulting with its retained experts.” McKinney/Pearl Restaurant Ptrs.,
L.P. v. Metro. Life Ins. Co., ___ F.R.D. ___, No. 3:14-cv-2498-B, 2016 WL 98603, at *15
(N.D. Tex. Jan. 8, 2016). And the Court is not persuaded that the mere possibility that
an expert report or expert witness’s deposition may later adequately cover the same
information is good cause for quashal or a protective order as to the Rule 30(b)(6) topic
here.
But, applying Rule 30(b)(6)’s “reasonable particularity” standard, the Court finds
that Topic 1’s seeking testimony on all “facts upon which Defendant bases denials and
affirmative defenses stated in its amended answer” is overly broad because it fails to
describe the testimony sought with reasonable particularity to enable Defendant to
reasonably identify and marshal the facts as to which it must prepare its corporate
representative to testify. That Ms. Dennis may believe that Defendant has not properly
or fully responded to other discovery requests seeking the same information does not
change the fact that a responding party is entitled to insist that a requesting party
comply with Rule 30(b)(6)’s “reasonable particularity” requirement.
The Court therefore GRANTS Defendant’s MPO as to Topic 1 in Plaintiff’s
Amended Second Notice of Deposition and quashes the Amended Second Notice of
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Deposition as to Topic 1 and enters a protective order precluding any requirement for
Defendant to present a corporate representative as to Topic 1 as currently framed.
B.

Topic 2 – “The facts upon with Defendant bases its discovery responses,
including its interrogatory answers and document production”

The same analysis applies to Topic 2, which does not improperly seek attorney
work product but which runs afoul of Rule 30(b)(6)’s standard because it fails to
describe the testimony sought with reasonable particularity.
The Court therefore GRANTS Defendant’s MPO as to Topic 2 in Plaintiff’s
Amended Second Notice of Deposition and quashes the Amended Second Notice of
Deposition as to Topic 2 and enters a protective order precluding any requirement for
Defendant to present a corporate representative as to Topic 2 as currently framed.
C.

Topic 3 – “The facts related to the leg injury suffered by Mr. Carter while
under the care of the Dallas VA Medical Center including its cause and
treatment” – and Topic 4 – “The facts related to the malnutrition that
was a factor in Mr. Carter’s death at the Dallas VA Medical Center,
including its cause and treatment”

Defendant argues that “[a]sking a representative to testify regarding two
specific medical conditions is unduly burdensome for several reasons,” including that
“[a] representative cannot completely and fully testify regarding facts related to a
specific health problem, such as the leg wound or alleged malnutrition” and that “[i]t
is impossible for a single representative (or multiple representatives) to explain why
a team of internists, medical specialists, nurses, dieticians, and other medical
professionals made daily, on-going decisions for an entire year regarding care they
provided to a frail 87-year old patient with a complex medical history and multiple
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comorbidities.” Dkt. No. 20 at 14-15. According to Defendant, “[a]sking a corporate
representative to testify on behalf of those who provided care to Mr. Carter is
inefficient and less accurate, and therefore, inappropriate and unduly burdensome.”
Dkt. No. 27 at 5 (emphasis removed).
Ms. Dennis responds that Defendant proposes the far more burdensome
approach of deposing the “the roughly eighty (80) medical providers who ‘treated’ Mr.
Carter during his stay at the Dallas VA Medical Center.” Dkt. No. 24 at 11. “Not only
could this be considered the most intrusive and unduly burdensome means to obtain
this information, but would increase the overall costs for both parties exponentially,
and create a logistical burden on both parties to coordinate the production of all eighty
(80) of these doctors, nurses, and staff for their depositions.” Id.
Defendant replies that, “[b]ased on the medical records, which Dennis has in her
possession, Dennis could identify two or three medical care providers to depose as fact
witnesses, who could explain how and why they treated Mr. Carter’s leg injury and
assessed his nutritional needs, and/or whether they believe Mr. Carter was
malnourished,” and that “deposing two or three fact witnesses is far less burdensome
than requiring a corporate representative to review the medical records, interview
treatment providers, and testify on their behalf.” Dkt. No. 27 at 5 (emphasis removed;
footnote omitted).
Defendant’s proposal is too limiting under Rule 30(b)(6), under which Defendant
“is expected to create a witness or witnesses with responsive knowledge.” Wilson v.
Lakner, 228 F.R.D. 524, 528 (D. Md. 2005) (emphasis removed). Ms. Dennis is not
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limited to deposing as fact witnesses only a few health care professionals involved, nor
is she “obliged to depose a string of hospital employees, none of whom is able to speak
for the hospital as to how the incident or incidents in question occurred, nor indeed is
a 30(b)(6) requesting party limited to conducting her factual inquiry via
interrogatories.” Id. at 529. Under Rule 30(b)(6), Defendant has a duty to present and
prepare a Rule 30(b)(6) “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 quotation marks omitted). Preparing this Rule 30(b)(6)
designated representative may be time-consuming and burdensome, but the Court does
not find that it would be unduly burdensome, particularly in light of the available
alternatives that Defendant offers.
The Court therefore OVERRULES Defendants objections and DENIES
Defendant’s MPO as to Topics 3 and 4 in Plaintiff’s Amended Second Notice of
Deposition, which the Court finds to be relevant and proportional to the needs of the
case.
D.

Topic 5 – “The records and documents requested in Exhibit A to this
Notice”

For the reasons explained as to Topic 1, the Court finds that Topic 5 is overly
broad on its fact because asking a corporate representative to testify as to an extensive
document production fails to describe the testimony sought with reasonable
particularity.
The Court therefore GRANTS Defendant’s MPO as to Topic 5 in Plaintiff’s
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Amended Second Notice of Deposition and quashes the Amended Second Notice of
Deposition as to Topic 5 and enters a protective order precluding any requirement for
Defendant to present a corporate representative as to Topic 5 as currently framed.
II.

Interrogatories
Ms. Dennis’s response and Defendant’s reply include some argument as to the

adequacy and sufficiency of Defendants’ answers to interrogatories and responses to
document requests. But a motion to compel has not yet been filed in compliance with
the Court’s Standing Order on Discovery [Dkt. No. 6]. The Court will not prematurely
delve into the disputes on these discovery requests before a proper motion is filed and
briefed.
III.

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

circumstances presented here, Ms. Dennis 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 Defendant United States of America’s Motion to Quash or,
Alternatively, for Protective Order [Dkt. No. 19].
SO ORDERED.
DATED: October 23, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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