United States Court of Appeals

For the First Circuit

No. 00-1901

AMERISTAR JET CHARTER, INC.,

Plaintiff,

v.

SIGNAL COMPOSITES, INC. d/b/a

SIGNAL AEROSPACE,

Defendant, Appellant.

GENERAL ELECTRIC AIRCRAFT ENGINES,

PAUL WHELAN, MARK DANCWICZ and DAVE COHEN,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Lipez, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stearns,* U.S. District Judge.

Jennifer A. Creedon, with whom Lawrence C. Ecoff, Zimmerman,

Rosenfeld, Gersh & Leeds, LLP, Lawrence G. Cetrulo, and Cetrulo

& Capone LLP were on brief, for Signal Composites, Inc. d/b/a

Signal Aerospace, appellant.

Joseph L. Stanganelli, with whom Hale and Dorr LLP were on

brief, for General Electric Aircraft Engines, Paul Whelan, Mark

Dancwicz and Dave Cohen, appellees.
April 2, 2001

______________________

*Of the District of Massachusetts, sitting by designation.
1 A combustion liner is part of an aircraft that must

periodically be replaced. 

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BOWNES, Senior Circuit Judge. The appellant argues

that the district court erred when it granted the appellees'

motion for a protective order quashing appellant's deposition

subpoenas. Appellant claims that this decision was "plainly

wrong and resulted in substantial prejudice to Appellant." We

disagree, and for the reasons stated below, affirm the district

court's ruling.

I. BACKGROUND

The appellant, Signal Composites, Inc. d/b/a Signal

Aerospace ("Signal"), is a party to a civil action pending in

the United States District Court, Northern District of Texas

(Ameristar Jet Charter, Inc. v. Signal Composites, Inc., et al.,

No. 3-98-CV-1360-M). In that action, the plaintiff, Ameristar

Jet Charter, Inc. ("Ameristar"), seeks damages against Signal

based upon several causes of action arising out of the alleged

sale of counterfeit combustion liners,1 including breach of

warranty, fraud and conspiracy to defraud. The appellees are

non-party movants General Electric Aircraft Engines ("GEAE") and

its employees Paul Whelan, Mark Dancwicz and Dave Cohen.

A very brief factual history of the underlying action

is necessary to understand how and why GEAE got involved in this
2 Fed. R. Civ. P. 30(b)(6) provides, in pertinent part:

A party may in the party's notice and in a

subpoena name as the deponent a public or

private corporation . . . and describe with

reasonable particularity the matters on

which examination is requested. In that

event, the organization so named shall

designate one or more officers, directors,

or managing agents, or other persons who

consent to testify on its behalf . . . .

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case. Ameristar operates a jet charter service. A Texas

partnership, 3-D Industries ("3D") purchased, on behalf of

Ameristar, military combustion liners from Signal. Ameristar

claims that the combustion liners were represented to be

manufactured by GEAE, or an authorized GEAE vendor, as required

by the Federal Aviation Administration ("FAA"). The premises of

3D was visited by the FAA and the Department of Transportation

("DOT"). The FAA and DOT obtained combustion liners, and sent

them to GEAE for a team of employees to analyze and evaluate for

authenticity. The team concluded that the liners differed in a

number of ways from GEAE manufactured liners. Paul Whelan, Mark

Dancwicz and David Cohen were some of the GEAE employees on the

team. 

In March, 1999, Ameristar subpoenaed GEAE pursuant to

Federal Rule of Civil Procedure 30(b)(6).2 GEAE presented two

witnesses to testify on its behalf in depositions taken on April

8, 1999. The two witnesses deposed pursuant to Fed. R. Civ. P.
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30(b)(6) were Thomas Woo, GEAE's Mature Engines Program Quality

Manager, who led the team of employees that analyzed the

combustion liners; and Ronald Gould, another member of the team

and Technical Leader for GEAE's Engine Systems Design and

Integration Group. Counsel for Ameristar and Signal were

present at the deposition. 

Ameristar moved for partial summary judgment, and on

March 27, 2000, Magistrate Judge Boyle issued her findings,

conclusions and recommendations in favor of granting the motion.

One year after the two GEAE depositions were taken, and after

the magistrate judge issued her report, Signal moved on April

10, 2000, to extend the time to file its objections to

Magistrate Judge Boyle's report. On April 10, 2000, Signal also

served a Rule 30(b)(6) deposition subpoena on GEAE. On April

27, 2000, District Judge Lynn granted Signal's motion to extend

the time within which it had to file objections, but stated that

"none of the discovery set out in the motion will now be

permitted." She referred any additional discovery requests to

Magistrate Judge Boyle. On May 2, 2000, Signal subpoenaed

depositions from GEAE employees Whelan, Dancwicz and Cohen. On

May 16, 2000, Magistrate Judge Boyle denied "at this late

juncture" Signal's request for additional discovery of GEAE and

its employees.
3 GEAE and its employees are located in Massachusetts

and, therefore, the subpoenas were issued under the authority of

the District Court of Massachusetts.

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Meanwhile, on May 10, 2000, GEAE and its employees

moved, in the United States District Court for the District of

Massachusetts,3 for a protective order quashing the four

subpoenas issued to them. Signal opposed that motion. On June

15, 2000, District Judge Lindsay granted GEAE's motion to quash

the non-party subpoenas "both on the merits and because [the]

discovery sought appears to be precluded by Judge Boyle's order

of May 16, 2000." Signal now appeals Judge Lindsay's order,

arguing that it was "plainly wrong and resulted in substantial

prejudice to the Appellant."

II. DISCUSSION

The hurdle which the appellant must overcome to prevail

is high. As we have stated, "[t]he standard of review in

discovery matters is not appellant-friendly." Faigan v. Kelly,

184 F.3d 67, 84 (1st Cir. 1999). "We will intervene in such

matters only upon a clear showing of manifest injustice, that

is, where the lower court's discovery order was plainly wrong

and resulted in substantial prejudice to the aggrieved party."

Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir.

1989). Signal cannot clear the hurdle; it has not demonstrated
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that the district court's order was plainly wrong or that the

order resulted in substantial prejudice.

The Supreme Court has long recognized that the Federal

Rules of Civil Procedure are to be construed liberally in favor

of discovery. Hickman v. Taylor, 329 U.S. 495, 507 (1947)

("[T]he deposition-discovery rules are to be accorded a broad

and liberal treatment."); see also SEC v. Sargent, 229 F.3d 68,

80 (1st Cir. 2000) (quoting Hickman). There are, however,

limitations on pre-trial discovery. Mack, 871 F.2d at 187

(discussing amendments made to the Federal Rules of Civil

Procedure "to deal with the problem of over-discovery").

Federal Rule of Civil Procedure 26(b)(2) provides, in

pertinent part, that discovery

shall be limited by the court if it

determines that: (i) the discovery sought is

unreasonably cumulative or duplicative, or

is obtainable from some other source that is

more convenient, less burdensome, or less

expensive; (ii) the party seeking discovery

has had ample opportunity by discovery in

the action to obtain the information sought;

or (iii) the burden or expense of the

proposed discovery outweighs its likely

benefit . . . .

Rule 26(c) provides for protective orders, issued by

the district court, to limit or eliminate discovery sought.

Upon a showing of "good cause" by the movant, a court "may make

any order which justice requires to protect a party or person
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from annoyance, embarrassment, oppression, or undue burden or

expense . . . ." Fed. R. Civ. P. 26(c). 

Further, Rule 45(c)(3)(A) gives the court the power to

"quash or modify the subpoena if it . . . (iii) requires

disclosure of privileged or other protected matter and no

exception or waiver applies, or (iv) subjects a person to undue

burden."

At issue in this appeal are four deposition subpoenas

issued on behalf of Signal to GEAE and its employees Whelan,

Dancwicz and Cohen. GEAE had been subpoenaed by Ameristar in

March of 1999 in the same case. We rule that the district court

correctly granted the appellees' protective order to quash all

four subpoenas. Our reasons follow.

First, it was not "plainly wrong" for the district

court to quash the subpoena issued to GEAE pursuant to Rule

30(b)(6). Pursuant to Rule 30(a)(2)(B), "[a] party must obtain

leave of court . . . if . . . the person to be examined already

has been deposed in the case . . . ." Here, GEAE was previously

deposed. On April 8, 1999, GEAE presented two witnesses--Thomas

Woo and Ronald Gould--to testify on its behalf. Counsel for

Signal was present. One year later and after Magistrate Judge

Boyle's recommendation for partial summary judgment against it,

Signal issued a Rule 30(b)(6) subpoena to GEAE. Because this
4 Arguably, Signal requested additional discovery when

it moved for an extension of time within which to file its

objections to Magistrate Judge Boyle's findings and

recommendations. We need not decide whether Signal actually

requested leave of the court, as it was required to do pursuant

to Rule 30(a)(2), because the result is the same.

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second Rule 30(b)(6) subpoena was issued to GEAE without leave

of the court, it was invalid. Even assuming arguendo that

Signal sought leave of the Texas District Court4 to re-depose

GEAE pursuant to Rule 30(b)(6), such request was denied by

Magistrate Judge Boyle on May 16, 2000. For the foregoing

reasons, it was not "plainly wrong" for Judge Lindsay to grant

the protective order quashing the second Rule 30(b)(6) subpoena

issued to GEAE.

We next turn to the three individual subpoenas issued

to GEAE employees Whelan, Dancwicz and Cohen in May, 2000. The

district court was not "plainly wrong" when it quashed the

subpoenas issued to the three employees, and Signal has not

shown that it was "substantially prejudiced" by the court's

ruling. 

Unsatisfied with the findings and recommendations of

Magistrate Judge Boyle, Signal attempted to depose three other

members of the GEAE team. This request was belated, duplicative

and cumulative, and otherwise unduly burdensome to the

appellees. Two GEAE representatives were already deposed, and
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Signal did not articulate any dissatisfaction with the testimony

it received. Moreover, it did not seek additional testimony

until after Magistrate Boyle issued her findings and

recommendations a year later. 

Signal presents no evidence that any new, relevant

information will be obtained if it is permitted to take the

depositions of the three GEAE employees. Signal merely has

"hope" that the testimony of Whelan, Dancwicz or Cohen will

contradict the testimony of the GEAE representatives already

deposed. Counsel for Signal concedes, however, that it has no

evidence that it will receive contradictory testimony. We will

not allow Signal to go on a "fishing expedition," with the mere

"hope" that it will obtain such information. See Mack, 871 F.2d

at 187 (holding that a party may not "undertake wholly

exploratory operations in the vague hope that something helpful

will turn up.").

The district court has the discretion to limit

discovery. The court may limit discovery if it determines that

"the discovery sought is unreasonably cumulative or duplicative,

or is obtainable from some other source that is more convenient,

less burdensome, or less expensive . . . ." Fed. R. Civ. P.

26(b)(2)(i). Signal had an opportunity to question GEAE

representatives and did so in March, 1999. See Fed. R. Civ. P.
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26(b)(2)(ii). Signal has not shown that the information sought

from Whelan, Dancwicz or Cohen would be anything but cumulative

or duplicative. Therefore, it would be an "undue burden" on

GEAE, a non-party, to permit such a "fishing expedition." Fed.

R. Civ. P. 26(c) (a court "may make any order which justice

requires to protect a party or person from . . . undue burden").

III. CONCLUSION

For the aforementioned reasons, the district court was

not "plainly wrong" when it granted the appellees' motion for a

protective order to quash the four subpoenas and the appellant

has not shown that it was "substantially prejudiced" by this

order. The order of the district court is affirmed.