BURTON v. UNITED STATES (2024)

OPINION AND ORDER

Pending before the Court is a Letter Motion by Plaintiffs to compel the Government to produce the names and resumes of the witnesses who will testify at deposition as designees under Rule 30(b)(6) of the Federal Rules of Civil Procedure, and to produce certain documents. (Pl.’s 6/12/24 Ltr. Mot., ECF No. 142.) For the reasons set forth below, Plaintiffs’ Letter Motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

This is a medical malpractice and wrongful death action, which arises from the death of Franklin Ramos Sanchez, a Colombian citizen who died in the custody of the Bureau of Prisons (the “BOP”) after being extradited to the United States, is brought against the United States under the Federal Tort Claims Act, and against certain individuals employed by the BOP under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny. (See Second Am. Compl., ECF No. 76, ¶¶ 1-4.) On March 28, 2024, Plaintiffs served a Notice of Rule 30(b)(6) Deposition of Defendant United States of America (the “Notice”) seeking testimony regarding seven topics, as well as the production of five categories of documents. (See Dep. Not., ECF No. 142-1, at 6-8.)

In April 2024, the Government informed Plaintiffs that it was grouping the Notice's topics into three separate categories and anticipated producing three BOP witnesses to testify about these three categories: (1) a BOP Regional Correctional Services Administrator to testify concerning investigations of Special Investigation Supervisors, post order instructions and documentation of inmate supervision; (2) a Regional Medical Director to testify concerning medication administration, sick call requests and inmate access to medication; and (3) the BOP's Chief of Records and Information Management Office to testify concerning document and retention policies. (Defs.’ 6/17/24 Ltr. Resp., ECF No. 143, at 1.) The Government also advised that these witnesses also would testify concerning training in the foregoing topics. (Id.) These three witnesses are scheduled to testify on June 24, June 25 and July 10, 2024. (Pl.’s 6/12/24 Ltr. Mot. at 1.)

On May 31, 2024, Plaintiffs added a fourth topic by email, i.e., policies, procedures, guidelines, directives, manuals or other writings setting forth procedures related to maintaining inmate e-mail messages. (Pl.’s 6/12/24 Ltr. Mot. at 1; Defs.’ 6/17/24 Ltr. Resp. at 1.) The Government is in the process of locating an appropriate witness to testify concerning this topic. (Defs.’ 6/17/24 Ltr. Resp. at 1.) Also on May 31, 2024, Plaintiffs demanded that the Government disclose the names of its Rule 30(b)(6) witnesses and their resumes, but the Government has refused to make such disclosures. (Pl.’s 6/12/24 Ltr. Mot. at 1-2; Defs.’ 6/17/24 Ltr. Resp. at 2.)

On June 12, 2024, Plaintiffs filed the instant Letter Motion seeking to compel the Government to produce the names and resumes of its Rule 30(b)(6) witnesses and to produce the documents requested in its Notice. (Pl.’s 6/12/24 Ltr. Mot. at 1-2.) On June 17, 2024, the Government filed its response requesting that the Court deny Plaintiffs’ motion to compel. (Defs.’ 6/17/24 Ltr. Resp. at 1-3.)

On June 18, 2024, this action was referred to the undersigned for general pretrial purposes, including discovery. (Order of Ref., ECF No. 144.)

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 26, “parties 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[.]” Fed. R. Civ. P. 26(b)(1). One discovery device available is a deposition under Rule 30(b)(6).

Rule 30(b)(6) of the Federal Rules of Civil Procedure provides in relevant part:

In its notice ․ a party may name as the deponent a ․ governmental agency, or other entity ․ and must describe with reasonable particularity the matters for examination. 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․

Fed. R. Civ. P. 30(b)(6).

“Under Rule 30(b)(6), when a party seeking to depose [an entity] announces the subject matter of the proposed deposition, the [entity] must produce someone familiar with that subject.” Reilly v. NatWest Markets Grp., Inc., 181 F.3d 253, 268 (2d Cir. 1999). “To satisfy Rule 30(b)(6), the [entity] deponent has an affirmative duty to make available ‘such number of persons as will’ be able ‘to give complete, knowledgeable and binding answers’ on its behalf.” Id. (citation omitted).

The Court has broad discretion in deciding a motion to compel. See Grand Cent. P'ship. Inc. v. Cuomo, 166 F.3d 473, 488 (2d Cir. 1999).

ANALYSIS

The Court separately addresses below the two issues raised by Plaintiffs’ motion to compel, i.e., the identities and resumes of the Government's Rule 30(b)(6) witnesses and document production by the Government.

I. Identities And Resumes of Government's Rule 30(b)(6) Witnesses

Plaintiffs seek to compel the Government to disclose the identities and resumes of the Government's Rule 30(b)(6) witnesses. (Pl.’s 6/12/24 Ltr. Mot. at 1-2.) The Government opposes, arguing that the information sought is not relevant. (Defs.’ 6/17/24 Ltr. Resp. at 2.)

The Court finds, in its discretion, that the identities of the Government's Rule 30(b)(6) witnesses should be provided to Plaintiffs’ counsel in advance of the depositions, along with the witnesses’ resumes. The identities of the Government's Rule 30(b)(6) witnesses are not secret since they will be required to identify themselves on the record at their respective depositions. The question is merely one of timing. The Court has reviewed the case law cited by the Government from outside this District holding that the identities of Rule 30(b)(6) witnesses is not relevant and the Court does not find it persuasive. In any event, all of such case law was decided prior to the 2020 amendment to Rule 30(b)(6). In connection with this amendment, the Advisory Committee Notes state in part:

This amendment [to Rule 30(b)(6)] directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served about the matters for examination․

Candid exchanges about the purposes of the deposition and the organization's information structure may clarify and focus the matters for examination, and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements. It may be productive also to discuss “process” issues, such as the timing and location of the deposition, the number of witnesses and the matters on which each witness will testify, and any other issue that might facilitate the efficiency and productivity of the deposition.

Fed. R. Civ. P. 30, Committee Notes on Rules—2020 Amendment (emphasis supplied).

The Court finds that it will facilitate the efficiency and productivity of the Government's Rule 30(b)(6) depositions by having the Government identify its Rule 30(b)(6) witnesses in advance of their depositions. It also will facilitate the efficiency and productivity of these depositions to have resumes for the witnesses produced in advance of the depositions.¹ Moreover, the Court finds that providing Plaintiffs the foregoing information in advance of the depositions will assist in securing the just, speedy and inexpensive determination of this case. See Fed. R. Civ. P. 1.

II. Government's Document Production

The Court, in its discretion, denies Plaintiffs’ motion to compel production of documents requested in the Notice. Based upon the representations made by the Government in its response to Plaintiffs’ motion to compel,² the documents requested in items 1, 2 and 5 already have been produced. Thus, the motion to compel with respect to these items is denied as moot.

The Court denies Plaintiff's motion to compel production of documents in response to item 3 (“Documents you plan to reference or rely upon during your deposition”) and item 4 (“Documents you will require to refresh your recollection during the deposition”). Because the Government's Rule 30(b)(6) witnesses do not know the particular questions that will be asked at their depositions, they cannot reasonably be required to respond to these requests at this time. Moreover, the Court finds that these requests are not proportional to the needs of the case.

CONCLUSION

For the reasons set forth above, Plaintiffs’ motion to compel is GRANTED IN PART and DENIED IN PART. It is hereby ORDERED that the Government shall identify to Plaintiffs each of the Government's Rule 30(b)(6) witnesses at least one business day in advance of each witness’ deposition, and at the same time shall produce a resume for each such witness.

SO ORDERED.

FOOTNOTES

1.   The Court notes that parties often voluntarily agree to produce resumes for their Rule 30(b)(6) witnesses. See U.S. Bank N.A. as Tr. for Mortg. Pass-Through Certificate 1998-R1 v. Murphy, No. 12-CV-04299 (ARW), 2015 WL 14071904, at *3 (N.D. Ill. Apr. 8, 2015) (“U.S. Bank agreed to provide a curriculum vitae for its Rule 30(b)(6) designee”).

2.   “[C]ourts often rely upon statements made by counsel.” Greer v. Carlson, No. 20-CV-05484 (LTS) (SDA), 2020 WL 7028922, at *3 (S.D.N.Y. Nov. 29, 2020) (citations omitted).

STEWART D. AARON, United States Magistrate Judge: