TAROKH v. WAL MART STORES EAST LP (2022)

ORDER

This matter is before the Court on Defendants’ motion for protective order. [Doc. 33.] Plaintiff alleges claims under the Americans with Disabilities Act and the Rehabilitation Act. [Doc. 1 ¶¶ 118–201.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(g), D.S.C., this matter has been referred to the undersigned magistrate judge.

Plaintiff filed this action on August 23, 2021. [Doc. 1.] On August 15, 2022, Defendants filed the motion for protective order, seeking protection from Plaintiff's Rule 30(b)(6) deposition notice. [Doc. 33.] Plaintiff filed a response in opposition on August 19, 2022. [Doc. 38.]

APPLICABLE LAW

Rule 26(c)(1) of the Federal Rules of Civil Procedure allows a court, upon a showing of good cause, to enter a protective order to protect a party “from annoyance, embarrassment, oppression, or undue burden or expense.” Additionally, Rule 26(b)(2)(C) provides that “the court must limit the frequency or extent of discovery” 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).

Rule 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”

The party seeking a protective order must show good cause. United Property & Casualty Ins. v. Couture, No. 2:19-cv-01856-DCN, 2021 WL 5141292, at *2 (D.S.C. Nov. 4, 2021). “[I]n determining good cause, a court will balance the interest of a party in obtaining the information versus the interest of his opponent in keeping the information confidential or in not requiring its production.” Id. (internal quotation marks omitted). Whether to enter a protective order is committed to the sound discretion of the trial court. Fonner v. Fairfax Cnty., 415 F.3d 325, 331 (4th Cir. 2005).

Rule 30(b)(6) of the Federal Rules of Civil Procedure addresses deposition discovery directed to an organization. It provides that a deposition notice “must describe with reasonable particularity the matters for examination,” and the “named organization must 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.” Fed. R. Civ. P. 30(b)(6). Then, the organization must prepare the designated person so that he can “testify about information known or reasonably available to the organization.” Id.

DISCUSSION

Defendants seek a protective order barring Plaintiff from proceeding with a Rule 30(b)(6) deposition as to topics 1, 2, 5, 9, 12, and 15 in Plaintiff's most recent Rule 30(b)(6) deposition notice.¹ [Doc. 33.] The Court will address each topic in turn.

Topic 1

Topic 1 states,

The Defendant[s’] interpretation of the facts underlying the allegations made in the Complaint indicated in paragraphs 15 and 37-39, 41-42, 45-[4]8, 50-51, 53, 56, 57-64, 67-69, 71, 73-75, 82, 84, 89-95, 104-[10]5, 107, 110-111, 113–114; and all fact, witnesses and documents which support Defendants[’] third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, sixteenth, seventeenth, nineteenth, twentieth, twenty-first, twenty[-]fourth, twenty[-]fifth[ ] corresponding Defenses set forth in ․ Defendants’ Answer to the Complaint.

[Doc. 33-4 at 3.] Defendants argue that Topic 1 “does not identify the information sought through that topic with ‘reasonable particularity’ as required by Federal Rule 30(b)(6)” and “is noticeably vague as it fails to provide any specificity as to the allegations, facts, witness[es], or documents which Plaintiff seeks to depose Defendants’ corporate representative(s) regarding.” [Doc. 33 at 5.] Plaintiff, on the other hand, contends that Topic 1 “is drafted with specific reference to allegations in the complaint and defenses, so Defendants know precisely what facts and issues will be discussed” and that “[i]t is also appropriate for a 30(b)(6) designee to testify about facts underlying defenses.” [Doc. 38 at 3 (citing U.S. EEOC. v. Caesars Entertainment, 237 F.R.D. 428, 434 (D. Nev. 2006)).]

Courts are split “as to whether to allow parties to use 30(b)(6) depositions to explore facts underlying legal claims and theories.” St. John Haney v. Kavoukjian, No. 2:19-2098-RMG, 2020 WL 12762509, at *3 & n.1 (D.S.C. Aug. 3, 2020) (citing cases). Upon a review of the deposition notice, the Court finds Topic 1 is not vast, open ended, or vague. Instead, Topic 1 is limited to the facts underlying specific allegations in this lawsuit and to specific defenses asserted by Defendants.² The Court agrees with the court in Radian Asset Assurance, Inc. v. College of the Christian Brothers of New Mexico, 273 F.R.D. 689, 691–92 (D.N.M. 2011), that parties should be allowed “to craft [R]ule 30(b)(6) inquires similar to contention interrogatories, because this rule will ultimately lead to fewer disputes about what subject matter is permitted in 30(b)(6) depositions and advances the policy underlying the rules favoring disclosure of information.” Defendants have not established good cause for the Court to enter a protective order as to Topic 1. Although Defendants’ counsel will have to carefully prepare the Rule 30(b)(6) designee(s), counsel must always do so.³ Accordingly, the motion for protective order is denied as to Topic 1.

Topics 2 and 12

Topic 2 states,

The Defendant[s’] beliefs and opinions about their obligations under Title I of the Americans with Disabilities Act of 1990 (ADA) with regard to disability accommodation and disability discrimination.

[Doc. 33-4 at 3.] Topic 12 states,

The Defendant[s’] beliefs and opinions as to what were the “essential functions” of the Plaintiff's position, as that term is defined in ADA law.

[Id. at 4.] Defendants contend that Topics 2 and 12 “seek testimony on legal issues, not factual issues”⁴ and are “vague and overbroad and do not identify the testimony sought with reasonably particularity as required by Rule 30(b)(6).” [Doc. 33 at 6–7.] Plaintiff, on the other hand, argues that “[a] corporation's beliefs and subjective opinions are appropriate topics for 30(b)(6) depositions” and that these Topics “do[ ] not require the designee to give legal opinion; rather the designee must be prepared to discuss what [Defendants] believes[ ] [are their] obligations to [their] employees under the ADA.” [Doc. 38 at 5.]

In a Rule 30(b)(6) deposition, not only is a designee required to testify about facts within the organization's knowledge, but the designee must also testify about “its subjective beliefs and opinions.” Atanassova v. General Motors, LLC, No. 2:20-cv-01728-RMG, 2021 WL 1946520, at *1 (D.S.C. Mar. 12, 2021); see also Scott Hutchison Enters., Inc., 318 F.R.D. at 55; Taylor, 166 F.R.D. at 361 (stating that the designee “presents the corporation's ‘position’ ” as well as its “subjective beliefs and opinions” and “interpretation of documents and events”). To the extent questions regarding opinion implicate privileged conversations, “at this juncture it is premature to assume that will happen.” St. John Haney, 2020 WL 12762509, at *3. Moreover, “the Federal Rules of Civil Procedure provide a mechanism for [Defendants] to make contemporaneous objections on the basis of privilege” at the time of the examination. Id. (citing Fed. R. Civ. P. 30(c)(2)). Accordingly, the motion for protective order is denied as to Topics 2 and 12.

Topics 5 and 9

Topic 5 states,

The performance and disciplinary records of the individuals that the Defendants have identified as the Plaintiff's supervisors, including any ethics complaint[s], investigations, or discrimination charges naming said supervisors.

[Doc. 33-4 at 4.] Topic 9 states,

The qualifications, training and supervision of Chris Dodson, Tabitha Poteat, Pamela Judd, and the store's People Lead/store HR representative.

[Id.] Defendants contend that Topics 5 and 9 “contain vague references to terms ․ which are undefined and force Defendants to speculate as to what Plaintiff references in those topics” and “fail to provide ‘reasonable particularity’ as required by Federal Rule 30(b)(6).” [Doc. 33 at 6.] Plaintiff asserts that the terms used are not vague and that “the definitions that Defendants call ‘vague’ have been discussed previously [between the parties], including in Plaintiff's August 12, 2022 correspondence.” [Doc. 38 at 4.] Additionally, with respect to Defendants’ assertion that “Plaintiff fails to identify the individuals to whom he refers in topic 5” [Doc. 33 at 6], Plaintiff asserts that “Topic 5 refers to ‘the individuals that the Defendants have identified as the Plaintiff's supervisors’ ” [Doc. 38 at 4.]

Again, the Court finds that Defendants have not established good cause for it to enter a protective order. Although Defendants argue about the meaning of the terms in Topic 9, Plaintiff indicates these terms were specifically discussed and defined. Plaintiff's correspondence further clarified that, with respect to Topic 5, the designee should be prepared to testify as to discrimination complaints made by Plaintiff “to Global Ethics, HR and the Regional Manager after his termination” and “to any investigations that took place in response to them.” [Doc. 38-1 at 1.] As to Topic 9, Plaintiff's correspondence clarified that the designee should be able to discuss “how the named individuals were qualified for their positions, trained for their positions, and supervised when occupying their positions.” [Id.] To the extent Topics 5 and 9 are unclear as drafted in the Rule 30(b)(6) deposition notice, the Court finds that Topics 5 and 9 are clarified and/or limited by Plaintiff's correspondence at Docket Entry Number 38-1. Accordingly, the motion for protective order is denied as to Topics 5 and 9.

Topic 15

Topic 15 states,

Defendants’ policies, procedures and practices with regard to paying financial bonus[es] for managers and employees at the subject facility including the relationship to worker's compensation and other injury claims on store bonuses through deduction from revenue/profits; revenue/profit figures for the subject store for 2018 to 2020; and figures for all deductions from revenue/profits made because of worker's compensation claims and injury claims in the subject store from 2018 to 2020 (accident charges/time loss); average manager bonuses in the subject store from 2018 to 2020.

[Doc. 33-4 at 5.] Defendants challenge Topic 15 as being “related to workers’ compensation claims and Defendants’ financial procedures related to such claims” although “Plaintiff does not assert that he was discharged in retaliation for filing a workers’ compensation claim.” [Doc. 33 at 7.] Defendants also argue that “this topic seeks information related to Defendants’ financial practices, including the calculation of bonuses, which are categorically unrelated to any issue in this case.” [Id.] Finally, Defendants contend that “[t]he quantity of information responsive to this topic is extensive, and it is entirely unreasonable for [their] representative to be required to testify regarding the quantity of financial information referenced” for “countless stores over a three-year period.” [Id.] Plaintiff counters that “[d]iscovery has revealed that annual bonus[es] which associates and managers receive is diminished if an employee in the store receives accommodation for a disability when it happens to be associated with a worker's compensation claim. In short, [Defendants are] providing a financial incentive for managers and associates to be hostile to disability accommodation.” [Doc. 38 at 7.] Thus, Plaintiff argues that he seeks to obtain “facts as to how exactly management bonuses were negatively affected by workers compensations claims like the Plaintiff's. The topic also seeks facts as to how the finances at the subject store [were] affected by this negatively correlated relationship. This evidence [is] admissible on the issue of motive.” [Id.] Finally, Plaintiff reiterates that he seeks financial information regarding “the subject store only” and only for “the two-year span when this could have affected the decision making of Plaintiff's supervisors.” [Id. at 7–8.]

Upon review, the Court finds that, to the extent Defendants’ supervisors’ pay was subject to being decreased based on accommodations and/or injury claims, such information is, at a minimum, relevant to Plaintiff's claim that managers were hostile to his requests for accommodations based on disability. Relevancy is to be broadly construed for discovery purposes and is not limited to the precise issues set out in the pleadings or to the merits of the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). Topic 15 is specific and understandable. It is not unduly broad or burdensome. Indeed, Plaintiff clarified the topic so that Defendants know its scope and nature. [Doc. 38-1 at 2.] Accordingly, the motion for protective order is denied as to Topic 15.

CONCLUSION

Wherefore, based upon the foregoing, Defendants’ motion for protective order [Doc. 33] is DENIED.

IT IS SO ORDERED.

FOOTNOTES

1.   Plaintiff first served Defendants with a Rule 30(b)(6) deposition notice that included 17 proposed topics. [Doc. 33-1.] After a discovery conference, Plaintiff served a revised Rule 30(b)(6) deposition notice that included 18 topics. [Doc 33-2.] Defendants responded to the revised notice and provided objections to Topics 1, 2, 5, 8, 9, 12, and 15. [Doc 33-3.] Thereafter, Plaintiff modified Topics 5, 8, 12, and 15. [Doc. 33-4.] Defendants then filed the instant motion, objecting to Topics 1, 2, 5, 9, 12, and 15, but they have no objection to Topic 8 as modified in the most recent Rule 30(b)(6) deposition notice. [Doc. 33 at 3 n.2.]

2.   The Court notes that Topic 1 asks for “Defendant[s’] interpretation of the facts underlying the allegations made in the Complaint” [Doc. 33-4 at 3 (emphasis added)]; however, the Court finds that Defendants’ designee should be questioned regarding Defendants’ interpretation of the facts underlying the allegations in their Answer, because the facts underlying Defendants’ legal claims and theories are set forth in their Answer, not the Complaint.

3.   “[P]reparing for a Rule 30(b)(6) deposition can be burdensome”; however, that is “merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.” United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996). Although a corporate designee is “not expected to be a corporate encyclopedia,” he should be “reasonably and adequately prepared to answer questions about the relevant deposition topics.” Runnels v. Norcold, Inc., No. 1:16-cv-713, 2017 WL 3026915, at *1 (E.D. Va. Mar. 30, 2017). He must therefore prepare to testify beyond his own personal knowledge to matters known to the corporation as a whole. Doing so may require extensive preparation, document review, interviews, and other forms of investigation to reasonably identify the corporation's relevant knowledge and positions. Taylor, 166 F.R.D. at 361-62. Indeed, “a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary.” Scott Hutchison Enters., Inc., v. Cranberry Pipeline Corp., 318 F.R.D. 44, 55 (S.D.W. Va. 2016) (internal quotation marks omitted); see also Int'l Ass'n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 487 (D. Md. 2005) (explaining that when corporate designees lack personal knowledge of the noticed deposition topics, “the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation”).

4.   Defendant cites to United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006), for the proposition that “opinion testimony that states a legal standard or draws a legal conclusion by applying law to facts is generally inadmissible” [Doc. 33 at 8 (internal quotation marks omitted)]. However, McIver is directed to expert testimony, not testimony under Rule 30(b)(6). Defendant also cites to Addison v. CMH Homes, Inc., 47 F. Supp. 3d 404, 413 (D.S.C. 2014), which is directed to inadmissible lay witness opinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts. Neither of these cases squares with Defendants’ argument.

Jacquelyn D. Austin, United States Magistrate Judge