Citynet, LLC v. Frontier West Virginia, Inc., et al.
Filing
386
MEMORANDUM OPINION AND ORDER The 327 MOTION by Frontier West Virginia, Inc. for Protective Order is GRANTED, in part, to the extent that Frontier is not required to produce a representative to testify concerning Topics 2, 3, or 4 or comply with the duces tecum portion of the Notice; the Motion is DENIED, in part, Frontier is directed to produce a Rule 30(b)(6) representative or representatives to testify concerning Topics 1 and 5 by 7/15/222; the parties are to bear their own costs related to this motion. Signed by Magistrate Judge Cheryl A. Eifert on 6/28/2022. (cc: counsel of record) (kew)
Case 2:14-cv-15947 Document 386 Filed 06/28/22 Page 1 of 10 PageID #: 9018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CITYNET, LLC, on behalf of
United States of America,
Plaintiff/Relator,
v.
Case No.: 2:14-cv-15947
FRONTIER WEST VIRGINIA, INC.,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is a Motion for Protective Order filed by Defendant
Frontier West Virginia, Inc., (“Frontier”). (ECF No. 327). Plaintiff/Relator Citynet, LLC,
(“Citynet”) filed a response in opposition to the motion, (ECF No. 345), to which Frontier
filed a reply, (ECF No. 361). For the reasons that follow, the Court GRANTS, in part,
and DENIES, in part, Frontier’s Motion for Protective Order.
I.
Relevant Facts and Procedural History
In May 2014, Citynet filed a qui tam action on behalf of the United States of
America under the False Claims Act, 31 U.S.C. § 3729, et. seq. Citynet asserts that its
competitor, Frontier, misused more than 40 million dollars of federal grant funding to
build a statewide broadband network that excluded all competition. (ECF Nos. 1, 30). As
stated in the Amended Complaint, the Broadband Technology Opportunities Program
(BTOP) was created in 2009 to disburse $4.7 billion of stimulus funding to expand
broadband access in rural, remote, and underserved communities. (ECF No. 30 at 1).
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According to Citynet, Frontier and the individual defendants misrepresented in an
application for over $126 million in BTOP grant funding that they would build a network
that would connect over one thousand community anchor institutions (CAIs), such as
schools, libraries, and healthcare facilities, to internet peering locations at Frontier’s
central office. (Id. at 1-2). Citynet claims that Frontier built less than half of the
infrastructure for which it solicited and received funding, and it built the infrastructure
in a way to expand its own network and exclude competitors. (Id.). Citynet asserts that
Defendants defrauded the government by seeking payment for materials and services that
were not permitted under the grant award. (Id. at 3). It seeks damages and civil penalties
on behalf of the United States for the alleged false claims in the grant application and
misuse of funding. (Id. at 2).
A. Scheduling Order
On October 21, 2021, the Court ordered as follows: the last day to serve discovery
requests in this matter was April 1, 2022; discovery closed on May 26, 2022; dispositive
motions were to be filed by June 15, 2022; the final day to conduct mediation is August
16, 2022; and trial is scheduled for October 4, 2022. (ECF No. 205 at 2). The Court later
extended some deadlines, including the dates by which to complete fact and expert
witness depositions and the date on which to file dispositive motions. (ECF No. 272).
B. Citynet’s Rule 30(b)(6) Notice
On May 9, 2022, Citynet filed a Notice of Videotaped Deposition Duces Tecum of
Frontier through designated witnesses pursuant to Rule 30(b)(6) of the Federal Rules of
Civil Procedure. (ECF No. 325). The Notice listed the following topics of inquiry for the
period of January 1, 2009 to the date of the deposition:
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1. The agreements between Frontier and each of the CAIs connected as a
result of Frontier’s fiber construction with BTOP grant funding,
including, but not limited to, the term of said agreements, the type and
price of services offered, whether the CAI was considered a new
customer for Frontier and whether the CAI is still a Frontier customer.
If the CAI was not a new customer, the deponent should be prepared to
testify regarding the prior agreement with the CAI in terms of service
offered, the duration of the prior agreement and the type and price of
service offered.
2. Identify each agreement between Frontier and any another service
provider who is or has used fiber constructed with BTOP fiber from the
date of installation to present. In addition to identifying the service
provider, the deponent should be prepared to testify to terms of any
agreement between Frontier and the other service provider(s) including,
but not limited to, the duration of the agreement, the location of the fiber
to be used by the agreement, and the cost charged by Frontier for use of
the BTOP fiber.1
3. The preparation of Frontier and Citizens Telecommunications Company
of West Virginia’s (“Citizens”) applications for BIP funding through the
BTOP program, including, but not limited to, the individuals who were
involved in determining how to structure the proposed project, the
individuals who designed and engineered the project, the information
used to design and engineer the project including where the information
was obtained, how each entity determined the identity of each of
institutions included in each of the applications, and how each entity
determined how much money should be applied for to complete the
proposed joint project.
4. Information provided to Frontier and Citizens by the West Virginia
Executive Office’s (“WVEO”) for use by Frontier and Citizens in
preparing their respective applications for BIP funding through the
BTOP program.
5. Information provided by either Frontier West Virginia, Inc. or Citizen
Communications to assist the WVEO application for BTOP grant
funding, including information provided by Verizon that was provided
to WVEO, to assist the WVEO in preparing its application for BTOP
funding.
(ECF No. 325 at 2-3). Citynet’s 30(b)(6) Notice stated that “[i]n addition to being
prepared to testify to the following topics, the deponent(s) shall produce at or before the
1
The parties assert that Topic 2 is resolved. (ECF Nos. 327 at 8 n.6, 345 at 4).
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time of the deposition (unless any such have already been furnished) all documents
pertaining to the [foregoing topics].” (Id. at 2).
C. Frontier’s Motion for Protective Order
On May 16, 2022, Frontier filed a motion for protective order, seeking to quash
Citynet’s Rule 30(b)(6) deposition notice and accompanying document requests. (ECF
No. 327 at 1). Frontier argues that it is entitled to a protective order because it would be
Citynet’s eleventh deposition, which exceeds the 10-deposition limit provided in Rule 30
of the Federal Rules of Civil Procedure. (ECF No. 327 at 1, 7); see Fed. R. Civ. P.
30(a)(2)(A)(i) (stating that a party must obtain leave of court to take more than 10
depositions unless the parties stipulate to the deposition). In addition, Frontier contends
that the deposition notice violated the parties’ informal agreement that they would
exchange lists of the remaining depositions to be taken in the case and coordinate
scheduling them. (Id.).
As to the duces tecum portion of the Rule 30(b)(6) Notice, Frontier claims that the
document requests are untimely because they run afoul of the deadline for written
discovery, and Citynet seeks documents that have already been produced, require
extensive new electronically stored information (ESI) searches, or are otherwise beyond
the scope of discovery. (ECF No. 327 at 1, 4). Frontier notes that Citynet extended Frontier
less than 17 days to gather and produce the documents, although 30 days is required. (Id.
at 4).
Regarding the specific topics listed in the Rule 30(b)(6) Notice, Frontier claims
that Topic 1, which seeks the agreements between Frontier and each of the CAIs
connected by the BTOP grant project, is irrelevant or, at the very least, grossly
disproportionate to the needs of the case. (Id. at 8). Frontier states that this case concerns
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whether Frontier presented false claims for payment to the Federal government, not the
finer points of internet service contracts. (Id.). Moreover, Frontier asserts that most of the
CAIs were state agencies that could obtain Frontier service through the State’s omnibus
contract, which is a public document that was produced long ago. (Id.).
Concerning Topics 3 and 4,2 Frontier claims that Citynet agreed to intricate ESI
search protocols and Frontier produced all information pertaining to these topics using
those protocols. (Id. at 9-10). According to Frontier, the only way to produce more
documents would be to expand the agreed upon ESI search protocols, which would violate
the Scheduling and ESI Orders. (Id.). Finally, as to Topic 5, Frontier asserts that it has no
knowledge of any employee assisting the State with its grant application, which is
confirmed by Citynet’s documents. (Id. at 10).
In response to the motion for protective order, Citynet states that the document
requests and Topic 2 are moot because Frontier confirmed that it already produced the
requested information. (ECF No. 345 at 1, 4, 7, 8). Citynet contends that Frontier waived
its argument regarding the 10-deposition limit by never raising it in its objections to the
Notice or in the meet and confer process. (Id. at 12, 17). In addition, Citynet states that
the parties long ago agreed to exceed 10 depositions per side, and neither party has
included experts in the deposition totals, which would make this Citynet’s ninth
deposition. (Id. at 12-13). As to the agreement to coordinate the remaining depositions,
Citynet asserts that it twice confirmed that its list of deponents was not final and advised
Frontier that it might seek additional depositions. (Id. at 11). Also, Citynet notes that the
parties agreed that they could depose any additional witnesses that ongoing discovery
2
Frontier’s argument for a Protective Order concerning Topic 2 is omitted because it is no longer at issue.
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revealed was necessary, which Citynet states was precisely what happened because
Frontier’s witnesses lacked knowledge regarding certain topics. (Id.).
Overall, Citynet claims that Frontier does not offer any of the reasons provided in
Rule 26 of the Federal Rules of Civil Procedure to quash the deposition, such as adducing
any specific facts regarding the burden or expense of preparing a representative to testify
regarding the four remaining deposition topics. (Id. at 1-2, 7); see Fed. R. Civ. P. 26(c)(1).
Further, Citynet asserts that Frontier never meaningfully attempted to resolve this
discovery dispute before filing its motion, nor did it include the “meet and confer”
certification in its motion, as required by the Federal Rules of Civil Procedure. (Id. at 7,
15); see Fed. R. Civ. P. 26(c)(1) (stating that a motion for protective order “must include a
certification that the movant has in good faith conferred or attempted to confer with other
affected parties in an effort to resolve the dispute without court action.”). Citynet claims
that the parties were working on a compromise regarding the 30(b)(6) Notice when
Frontier abruptly filed its Motion for Protective Order. (Id. at 15).
In reply to Citynet’s Response, Frontier again focuses on the parties’ deposition
agreement and reiterates that this would be Citynet’s eleventh deposition, which is only
permitted by agreement or with leave of court. (ECF No. 361 at 2, 3). Frontier disputes
that the 30(b)(6) deposition could qualify as a new witness discovered in the course of
discovery because Topic 1, as well as the accompanying document request, is entirely new.
(Id. at 4). In addition, Frontier states that Citynet never addressed its argument that the
topics are beyond the scope of discovery. (Id.). Finally, Frontier claims that the deposition
would require the corporate representative to match up 140,000 documents with each
deposition topic. (Id. at 4-5). According to Frontier, not only do the Federal Rules of Civil
Procedure allow it to produce documents in the usual course of business, but the parties
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have agreed not to index document production. (Id. at 5). Frontier asserts that this is
really a late document request masquerading as a deposition notice. (Id. at 6). As a final
point, Frontier contends that it attempted to resolve this dispute in good faith, as shown
by the fact that Topic 2 was resolved. (Id. at 9). Frontier states that it took the lead on
trying to schedule depositions, but there was simply no middle-ground on this issue –
either the 30(b)(6) deposition is permitted, or it is not. (Id.).
II.
Discussion
Frontier seeks a protective order to quash Citynet’s Rule 30(b)(6) deposition notice
duces tecum. (ECF No. 327). The motion is governed by Rule 26(c)(1) of the Federal Rules
of Civil Procedure, which provides the following:
A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending—or as an
alternative on matters relating to a deposition, in the court for the district
where the deposition will be taken. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute without court action.
The court may, for good cause, issue an order 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 the 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 documents or
information in sealed envelopes, to be opened as the court directs.
Fed. R. Civ. P. 26(c)(1). Importantly, “[t]he party moving for a protective order bears the
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burden of establishing good cause.” Webb v. Green Tree Servicing LLC, 283 F.R.D. 276,
278–79 (D. Md. 2012) (citations omitted). The moving party cannot rely on general
statements and must provide particular and specific facts to meet the high burden of
proving that a protective order should issue. Id.
A. Topic 1
Topic 1 seeks the agreements between Frontier and each of the CAIs connected by
the BTOP grant project. Frontier, as the party seeking the protective order, does not show
that inquiry on this topic would cause “annoyance, embarrassment, oppression, or undue
burden or expense.” Fed. R. Civ. P. 26. Frontier claims that most of the CAIs were state
agencies that could obtain Frontier service through the State’s omnibus contract, which
is a public document that was produced long ago. If that is the case, it should not be
burdensome to prepare a representative to testify to the same. Frontier also claims that
Topic 1 seeks information that is irrelevant or disproportionate to the needs of the case.
However, this topic could reasonably elicit information regarding Frontier’s application
for and use of grant funding. Frontier has failed to satisfy the high burden of good cause
for a protective order on this topic. For the above reasons, the Court DENIES Frontier’s
Motion for Protective Order, in part, regarding Topic 1. Frontier must produce a corporate
representative or representatives to testify regarding Topic 1 on a mutually agreeable date
on or before July 15, 2022.
B. Topic 2 and Document Requests
Citynet states that Topic 2 and all of the document requests included in the Notice
are moot because Frontier confirmed that it provided all relevant information. However,
Citynet has not filed an amended Rule 30(b)(6) Notice indicating the same. Therefore,
the Court GRANTS Frontier’s Motion for Protective Order, in part, to order that Frontier
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is not required to (1) produce a representative to testify concerning Topic 2 or (2) comply
with the duces tecum portion of the Notice in any manner.
C. Topics 3 and 4
Regarding Topics 3 and 4, Frontier claims that Citynet agreed to intricate ESI
search protocols and Frontier produced all information pertaining to these topics using
those protocols. Although the parties dedicate pages of their briefs squabbling over their
deposition agreement and related matters, there does not appear to be any substantive
disagreement that Frontier already provided information relating to Topics 3 and 4.
Citynet does not assert that the information produced was incomplete, nor does it provide
any explanation as to why corporate testimony is necessary to elaborate upon or explain
the documents that Frontier produced. Finding that Frontier has shown good cause, the
undersigned GRANTS Frontier’s Motion for Protective Order, in part, ordering that
Frontier is not required to produce a Rule 30(b)(6) representative to testify regarding
Topics 3 and 4.
D. Topic 5
Finally, concerning Topic 5, Frontier claims that it has no knowledge of any
employee that assisted the State with its grant application, which is confirmed by Citynet’s
documents. Again, if that representation is accurate, it is unclear why it would cause
“annoyance, embarrassment, oppression, or undue burden or expense” for Frontier to
prepare a representative to testify regarding this topic. Fed. R. Civ. P. 26. The Court
DENIES Frontier’s Motion for Protective Order, in part, regarding Topic 5. Frontier
must produce a representative or representatives to testify regarding Topic 5 on a
mutually agreeable date on or before July 15, 2022.
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Overall, the Court considers that Frontier’s motion primarily objects to the
document requests, which are no longer at issue. Although Frontier claims that it would
be required to prepare a representative to testify regarding numerous matters and
documents, its arguments indicate that its responses to some of the topics are rather
straightforward. The Court also considers the fact that Citynet has not taken a Rule
30(b)(6) deposition and it noticed it to occur within the discovery deadline. Citynet was
not prohibited under the parties informal “deposition agreement” to take a Rule 30(b)(6)
deposition, and, as Frontier recognized, even if this is considered Citynet’s eleventh
deposition, it is permitted under Rule 30(a)(2)(A)(i) with leave of Court.
Therefore, in summary, for all of the above reasons, Frontier’s Motion for
Protective Order, is GRANTED, in part, to the extent that Frontier is not required to
produce a representative to testify concerning Topics 2, 3, or 4 or comply with the duces
tecum portion of the Notice. The Motion for Protective Order, is DENIED, in part, and
Frontier is ordered to produce a Rule 30(b)(6) representative or representatives to testify
concerning Topics 1 and 5 on or before July 15, 2022. The parties shall bear their own
costs related to this motion.
The Clerk is directed to provide a copy of this Memorandum Opinion and Order to
counsel of record.
ENTERED: June 28, 2022
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