ESTEVAN ALVARADO HERRERA v. ACUITY MUTUAL INSURANCE COMPANY (2023)

Order

Pending before the Court is Defendant's motion for protective order. Docket No. 91. Plaintiff filed a response in opposition. Docket No. 97. Defendant filed a reply. Docket No. 98.¹ The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion for protective order is GRANTED.

I. BACKGROUND

Defendant is an insurance company that provided coverage for a 2012 Ford Transit Connect van. Docket No. 1-2 at ¶ 6. Plaintiff was involved in an accident while standing next to that vehicle. Id. at ¶ 9. Plaintiff brought suit against the alleged tortfeasors and Defendant intervened in that action. See id. at ¶ 19. Following resolution of the claims against the tortfeasors, that lawsuit was dismissed. See Docket No. 41-12 at 21. Plaintiff then brought this suit against Defendant for breach of contract regarding underinsured motorist coverage, unfair insurance practices, and breach of the covenant of good faith and fair dealing. Docket No. 1-2 at ¶¶ 97-132.

Discovery has not proceeded smoothly. The parties are back before the Court with another round of discovery motion practice in which Defendant seeks protection from a Rule 30(b)(6) deposition notice containing 68 topics. Docket No. 91-2.

II. STANDARDS

“The discovery process in theory should be cooperative and largely unsupervised by the district court.” Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). Nonetheless, a party may move for a protective order from discovery to prevent annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). The rules also mandate “reasonable limits on discovery through increased reliance on the common-sense concept of proportionality” designed to “provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.” Roberts v. Clark Cnty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016) (discussing Fed. R. Civ. P. 26(b)(1)). “District courts possess ‘wide discretion to determine what constitutes a showing of good cause and to fashion a protective order that provides the appropriate degree of protection.’ ” Swenson v. GEICO Cas. Co., 336 F.R.D. 206, 209 (D. Nev. 2020) (quoting Grano v. Sodexo Mgmt., Inc., 335 F.R.D. 411, 414 (S.D. Cal. 2020)); see also Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (noting broad discretion to permit or deny discovery). The party seeking a protective order bears the burden of persuasion. E.E.O.C. v. Caesars Ent., Inc., 237 F.R.D. 428, 432 (D. Nev. 2006). That burden is met by demonstrating a particular need for protection supported by specific facts, as opposed to broad allegations of harm. Swenson, 336 F.R.D. at 208-09.

Upon the noticing of a corporation's deposition, it must designate one or more persons to testify on its behalf. Fed. R. Civ. P. 30(b)(6). “The purpose of a Rule 30(b)(6) deposition is to streamline the discovery process.” Risinger v. SOC, LLC, 306 F.R.D. 655, 662 (D. Nev. 2015).² The testimony of a Rule 30(b)(6) deponent represents the knowledge of the organization rather than the knowledge of the individual witness. Great Am. Ins. Co. of N.Y. v. Vegas Constr. Co., 251 F.R.D. 534, 538 (D. Nev. 2008). The deposition notice must “describe with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). The corporation must then prepare the deponent “to fully and unevasively answer questions about the designated subject matter.” Great American Insurance, 251 F.R.D. at 539; see also Nev. Power Co. v. Monsanto Co., 891 F. Supp. 1406, 1418 (D. Nev. 1995) (the corporation must prepare the deponent to give “complete, knowledgeable and binding answers”). This duty to prepare “goes beyond matters personally known to the witness or to matters in which the designated witness was personally involved.” Risinger, 306 F.R.D. at 663. The deponent must be “thoroughly educated” on the topics. Great American Insurance, 251 F.R.D. at 539. These are “substantial responsibilities and burdens on the responding corporate party.” Memory Integrity, 308 F.R.D. at 661.

“Although a Rule 30(b)(6) deposition may necessarily entail considerable preparation, the court has a duty to protect a party from being needlessly burdened.” Nichols v. Credit Union 1, No. 2:17-cv-02337-APG-GWF, 2018 WL 11404371, at *2 (D. Nev. Dec. 26, 2018). Given the obligation imposed on the noticed party to educate the witness, there is a reciprocal obligation imposed on the deposing party to draft the Rule 30(b)(6) notice with care. Reno v. W. Cab. Co., No. 2:18-cv-00840-APG-NJK, 2020 WL 5902318, at *2 (D. Nev. Aug. 31, 2020). To that end, courts have “repeatedly emphasized the practical constraints on the scope of a [Rule] 30(b)(6) deposition” in that it is not feasible for “a Rule 30(b)(6) witness to know the intimate details of everything.” United States v. HVI Cat Canyon, Inc., No. CV 11-5097 FMO (SSx), 2016 WL 11683593, at *7-8 (C.D. Cal. Oct. 26, 2016). As explained by United States Magistrate Judge Paul S. Grewal:

[T]he purpose served by [Rule] 30(b)(6)—to require an organization to identify and designate a witness who is knowledgeable on the noticed topic, particularly where the noticing party is unable to itself identify an appropriate witness because that knowledge lies within the organization—does not extend to burdening the responding party with production and preparation of a witness on every facet of the litigation. This would render unworkable the obligation of the responding party to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the subject matter, as that task becomes less realistic and increasingly impossible as the number and breadth of noticed subject areas expand. To require [the opposing party] to respond to [an excessive] notice would be to ignore the directive ․ to limit the extent of otherwise relevant discovery where the benefit to and need of the propounding party is outdone by the burden, expense, and ․ impracticable demand imposed on the other side.

Apple Inc. v. Samsung Elecs. Co., No. C 11-1846 LHK (PSG), 2012 WL 1511901, at *2 (N.D. Cal. Jan. 27, 2012) (internal quotations, footnotes, and citations omitted). Hence, a Rule 30(b)(6) deposition notice must target issues on which corporate testimony is truly needed, rather than covering nearly every conceivable facet of the litigation. Reno, 2020 WL 5902318, at *2.³

Determining whether a Rule 30(b)(6) notice is impermissibly excessive blends the concepts of burdensomeness and proportionality. See HVI Cat Canyon, 2016 WL 11683593, at *8.⁴ Importantly, these concepts incorporate a healthy dose of common sense. See Roberts, 312 F.R.D. at 603. “The reasonableness of the length and scope of a Rule 30(b)(6) deposition notice turns on the circumstances of each case.” Reno, 2020 WL 5902318, at *2. Pertinent circumstances for consideration include the number of topics, the scope of information sought by the topics, the complexity of the case, the amount of time allotted for the Rule 30(b)(6) deposition, the nature of the subject matter addressed in the topics (e.g., whether preparation may require expert or attorney input), and whether the information can be obtained more efficiently through other means. See, e.g., HVI Cat Canyon, 2016 WL 11683593, at *8-10. In an “undisputedly complex” environmental case with a 21-hour limit for a corporate deposition, a notice with 61 topics (some of which were expansive) has been found unreasonably excessive. Id. In more straightforward cases, courts have found significantly slimmer Rule 30(b)(6) notices to be excessive. See, e.g., Bowers v. Mortg. Elec. Reg. Sys., Inc., Civil Case No. 10-4141-JTM, 2011 WL 6013092, at *7 (D. Kan. Dec. 2, 2011) (in mortgage dispute, holding that Rule 30(b)(6) notice with 22 topics was improperly excessive).

Courts “have not hesitated to issue protective orders when corporations are asked to respond to overly broad or unfocused Rule 30(b)(6) deposition notices.” Wieland, 2021 WL 4443683, at *2. Where grounds for a protective order have been established, courts have several arrows in their quiver to rectify the situation, including preventing the discovery or specifying the terms on which the discovery will be conducted. Swenson, 336 F.R.D. at 209 (citing Fed. R. Civ. P. 26(c)(1)(A), (B)). “In analyzing the excessiveness of Rule 30(b)(6) topics, courts do not generally engage in an item-by-item analysis to allow particular topics and rule out others.” Reno, 2020 WL 5902318, at *2 n.3 (citing F.D.I.C. v. Wachovia Ins. Servs., Inc., No. 3:05 CV 929 (CFD), 2007 WL 2460685, at *5 (D. Conn. Aug. 27, 2007)). “Instead, courts generally issue a protective order precluding enforcement of the notice as currently drafted without prejudice to the issuance of a new notice with appropriately narrowed topics.” Reno, 2020 WL 5902318, at *2 n.3 (citing Apple, 2012 WL 1511901, at *3).⁵ This practice reenforces that such drafting efforts should be undertaken by the lawyers, see Willy, 2022 WL 1553703, at *5 see also Wieland, 2021 WL 4443683, at *4 (noting consistency with Ninth Circuit guidance that the discovery process is meant to be cooperative and largely unsupervised by the district court), and also avoids the potential of rewarding “intractable discovery positions with the broadest possible discovery” or creating “incentives contrary to the dictates of Rule 1,” Pulse Evolution, 2015 WL 13238450, at *4.

III. ANALYSIS

Defendant does not object to appearing for a Rule 30(b)(6) deposition. Defendant seeks relief regarding that deposition on the ground that, inter alia, the expansive deposition notice seeking corporate testimony on 68 topics is impermissibly excessive.⁶ Defendant argues that the topics cover nearly every facet of the case and that it is not feasible to prepare a corporate deponent for the range of testimony being sought. See, e.g., Mot. at 10-13; Reply at 3-4, 6-7. Plaintiff counters that the 68 deposition topics are not impermissibly excessive given the amount of money at stake and the issues in the case, a ruling elsewhere regarding an appropriate timeframe for written discovery, and a failure by Defendant to sufficiently establish an undue burden or harm in complying with the notice as written. See, e.g., Resp. at 9-12. Defendant has the better argument.

While there are some intricacies with the claims and defenses in this case, it is at bottom an insurance dispute that is not a complex matter. Cf. Wieland, 2021 WL 4443683, at *4 (noting that the case was “not a complex anti-trust, patent, or environmental enforcement action”). Nonetheless, Plaintiff's Rule 30(b)(6) deposition notice seeks testimony from a well-prepared corporate representative on a staggering 68 topics. See Docket No. 91-2. Rather than targeting those issues for which corporate testimony is truly needed, the deposition notice tries to cover nearly every conceivable facet of the case. In addition to the copiousness of topics, the subject matter of particular topics is expansive. As examples, Topic 21 seeks testimony on “[t]he details of each lawsuit that has been filed against Acuity, from January 30, 2015, to the present, alleging breach of contract, bad faith, unfair claims practices, or violations of any other statutory obligations, which arose out of any Nevada insurance policy issued by Acuity,” id. at 5; Topic 54 seeks testimony on “Acuity's responses to Plaintiff's interrogatories, requests for production, and requests for admission,” id. at 8; and Topic 55 seeks testimony on “[t]he factual basis for Acuity's Answer and Affirmative Defenses in this matter,” id. These are topics with far-reaching subject matter, further aggravating the preparation of a corporate witness. Cf. Wieland, 2021 WL 4443683, at *2; Reno, 2020 WL 5902318, at *2. Making matters worse, Plaintiff did not respond to Defendant's contention that it is simply impossible for counsel to cover all of the topics in the notice within the seven-hour time limit for the deposition. See, e.g., Mot. at 3 (citing Fed. R. Civ. P. 30(d)(1)). Contrasting the 68 broad deposition topics with the seven-hour limit on the deposition, it is plain that much of the preparation of a corporate deponent would almost certainly be wasted on matters not actually covered during the deposition. Cf. HVI Cat Canyon, 2016 WL 11683593, at *10.⁷

In light of the circumstances, the Rule 30(b)(6) deposition notice is excessive and improper. The deposition topics attempt to cover nearly every conceivable facet of this litigation, making the preparation of a thoroughly educated witness infeasible. Burdening the defense with the task of trying to prepare a corporate deponent on the 68 deposition topics sought in the notice is not appropriate in the circumstances of this case. If Plaintiff wishes to obtain corporate testimony in this case, he must serve a narrowed deposition notice in compliance with governing law. Cf. Reno, 2020 WL 5902318, at *2 n.3.

IV. CONCLUSION

Accordingly, the motion for protective order is GRANTED. Nothing herein prevents Plaintiff from serving a narrowed Rule 30(b)(6) deposition notice.

IT IS SO ORDERED.

FOOTNOTES

1.   The response was filed in violation of the page limit, Local Rule 7-3(b), and with footnotes in smaller font than is allowable, Local Rule IA 10-1(a)(3). The motion and reply also violate the font size requirement for footnotes. Id. Counsel must strictly comply with the local rules moving forward.

2.   Rule 30(b)(6) establishes a specialized form of deposition to overcome historical difficulties associated with corporate testimony:[T]he discovery device created by Rule 30(b)(6) was intended to assist both sides in the deposition process. Previously, officers or managing agents of a corporation who were deposed might use a technique known as “bandying,” in which each witness in turn disclaims knowledge of facts that are known to other persons in the organization and thereby to the organization itself. This rule was intended to curb that practice. In addition, organizations at times were subjected to an unnecessarily large number of their officers and agents being deposed by a party who was uncertain of who in the organization has knowledge regarding some specific matter at issue.Memory Integrity, LLC v. Intel Corp., 308 F.R.D. 656, 660 (D. Or. 2015).

3.   The bare fact that deposition topics surpass the Rule 26(b)(1) relevancy threshold does not necessarily mean that they are allowable. “While [Rule] 26(b)(1) permits a party to obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense, courts have limited discovery where the breadth of subjects and number of topics identified in a [Rule] 30(b)(6) deposition notice renders a responding party's efforts to designate a knowledgeable person unworkable.” Luken v. Christensen Grp. Inc., No. C16-5214 RBL, 2018 WL 1994121, at *2 (W.D. Wash. Apr. 27, 2018) (internal quotations omitted). Quite plainly, “the Court has the authority to restrict relevant topics for a 30(b)(6) deponent based on practical limitations.” Wieland v. Bd. of Regents of Nev. Sys. of Higher Ed., No. 3:19-cv-00724-MMD-CLB, 2021 WL 4443683, at *3 (D. Nev. Sept. 28, 2021) (overruling objections to magistrate judge's granting of motion for protective order); accord Apple, 2012 WL 1511901, at *2 (courts may “limit the extent of otherwise relevant discovery”). Plaintiff conflates issues in noting that there is no limit to the scope of inquiry at a Rule 30(b)(6) deposition beyond relevancy. See Resp. at 8. The case law cited addresses the questions that may be asked at the deposition, see Caesars Entertainment, 237 F.R.D. at 432-33, not the scope of topics within a Rule 30(b)(6) notice on which the deponent must be prepared to fully address with answers binding on the corporation. Defendant's motion for protective order addresses the latter.

4.   There is no articulated limit within Rule 30(b)(6) itself on the scope of topics for deposition. Defendant suggests that the analysis regarding the excessiveness of Rule 30(b)(6) topics is anchored on the rule's mandate to “describe with reasonable particularity the matters for examination.” See Mot. at 11. In this Court's view, the reasonable particularity requirement addresses the linguistic specificity and clarity of the deposition topics, as opposed to an appropriate scope of those topics. The latter appears to be better addressed to the applicable provisions regarding the protection from annoyance, embarrassment, oppression, and undue burden, Fed. R. Civ. P. 26(c)(1), and the requirement that discovery be conducted in a manner proportional to the needs of the case, Fed. R. Civ. P. 26(b)(1).

5.   “When a party chooses to serve overly broad discovery, it runs the risk that the discovery will be denied outright without an opportunity to narrow it.” Hologram USA, Inc. v. Pulse Evolution Corp., No. 2:14-cv-00772-GMN-NJK, 2015 WL 13238450, at *4 (D. Nev. Dec. 18, 2015). Particularly where the discovery period has closed, courts may find that the circumstances warrant rejecting an excessive Rule 30(b)(6) deposition notice without providing an opportunity to narrow it. See, e.g., Willy v. Sherwin-Williams Co., No. 3:21-cv-00054-AR, 2022 WL 1553703, at *6-7 (D. Or. May 17, 2022).

6.   In light of the ruling made herein, the Court does not opine on the other arguments advanced in the briefing.

7.   Plaintiff contends that Defendant cannot obtain a protective order because it has not filed evidence detailing its burden in responding to the excessive deposition notice. See, e.g., Resp. at 11. The Court is not persuaded. Courts possess wide discretion to determine what constitutes a sufficient showing of good cause to issue a protective order. Swenson, 336 F.R.D. at 209. Although establishing an undue burden is a path to obtaining a protective order, it is not the only one. See, e.g., Fed. R. Civ. P. 26(c)(1). At any rate, an impermissible burden can be inherent in sustaining other objections. E.g., Jiminez v. City of Chicago, 733 F. Supp. 2d 1268, 1273 (W.D. Wash. 2010). Such is the case in the context of the pending dispute as the existence of an undue burden flows from the finding that it is infeasible to comply with an excessive Rule 30(b)(6) deposition notice. See, e.g., Willy, 2022 WL 1553703, at *3 (finding deposition notice to be “facially excessive and overly broad, and therefore, unduly burdensome” (emphasis added)); Acton v. Target Corp., No. C08-1149RAJ, 2009 WL 5214419, at *4 (W.D. Wash. Dec. 22, 2009) (finding deposition notice “enormously overbroad” and that “[n]o reasonable person could believe that Target could prepare one or more deponents to testify on the topics he has proposed without incurring undue burden and expense”); Lipari v. U.S. Bancorp, N.A., Civil No. 07-2146-CM-DJW, 2008 WL 4642618, at *7 (D. Kan. Oct. 16, 2008) (finding deposition notice to be overly broad and, “[t]hus, the deposition notice places an undue burden on U.S. Bancorp” (emphasis added)). While courts sometimes note the specifics of the burden imposed, see Wieland, 2021 WL 4443683 at *2 (noting specific burden imposed in need to review documents, while also accepting generalized showing that excessiveness of deposition topics “would produce not only time and expense, but unreasonable time and expense”), courts also routinely issue protective orders upon finding that a Rule 30(b)(6) deposition notice is facially excessive without making separate factual findings detailing the burden imposed, see, e.g., Matthys v. Barrick Gold of N. Am., Inc., No. 3:20-cv-00034-LRH-CLB, 2021 WL 3604834, at *2 (D. Nev. Aug. 13, 2021); RM Dean Farms v. Helena Chem. Co., No. 2:11-cv-00105 JLH, 2012 WL 169889, at *1 (E.D. Ark. Jan. 19, 2012). In short, Defendant established a sufficient harm in seeking protection from proceeding to a Rule 30(b)(6) deposition based on a facially excessive notice that makes it infeasible to prepare a witness.

Nancy J. Koppe United States Magistrate Judge