IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STATE FARM MUTUAL AUTOMOBILE : CIVIL ACTION

INSURANCE CO. et al., : NO. 03-6516

 :

Plaintiffs, :

:

v. :

:

NEW HORIZONT, INC. et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. NOVEMBER 25, 2008

I. BACKGROUND

State Farm Mutual Automobile Insurance Co. and State

Farm Fire and Casualty Co. (“State Farm”) brought suit against

certain health-care providers (“Defendants”), alleging that

Defendants carried out a fraudulent scheme to obtain payment for

injuries allegedly caused by State Farm insureds. During the

course of discovery, Defendants conducted a deposition of State

Farm through its corporate designee, Austin Bowles, pursuant to

Federal Rule of Civil Procedure 30(b)(6). Disputes arose at the

deposition concerning Bowles’s responses and counsel for State

Farm’s instructions not to answer.

Defendants subsequently moved to compel Bowles’s Rule

30(b)(6) deposition testimony. State Farm argued that, at the

deposition, counsel “properly instructed Bowles not to disclose

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any facts learned from discussions with counsel in preparation

for the Rule 30(b)(6) deposition because such facts constitute

attorney work product.” State Farm Mut. Auto. Ins. Co. v. New

Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008). The Court

disagreed, and instructed the parties that “[t]o the extent that

defense counsel’s questions seek relevant, non-privileged facts

learned from discussions with counsel, and do not seek counsel

for State Farm’s mental impressions, conclusions, opinions, or

legal theories, those questions must be answered,” pointing the

parties to the decision in Protective Nat'l Ins. Co. v.

Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989). New

Horizont, 250 F.R.D. at 215-16 & n.9.

The Court’s order required that “an additional Rule

30(b)(6) deposition of Mr. Austin Bowles, and/or another

appropriately prepared designee, shall take place no later than

June 9, 2008.” Id. at 223. The Rule 30(b)(6) deposition was

taken on June 11, 2008, through State Farm employee and corporate

designee John Costanzo. On May 20, 2008, Defendants noticed yet

another Rule 30(b)(6) deposition of State Farm to address

additional, previously unexplored areas of inquiry.

In a separate section of the memorandum, the Court

briefly discussed Federal Rule of Civil Procedure 33(b), and the

possibility that Bowles’s verifications of answers to

interrogatories may have been improper, as “[i]t is

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incomprehensible how Bowles could have verified under oath the

truth of answers to interrogatories if he had never previously

seen them.” Id. at 222. While the Court did not hold that the

answers to interrogatories were improperly verified, it did note

that “Defendants may be entitled to file a motion to compel

responses to specific interrogatories that State Farm failed to

answer or answered in an evasive or incomplete manner . . . and

possibly for sanctions,” if Bowles verified those responses

without any basis. Id. at 222 n.18.

Defendants did not file any such motion; instead, on

May 13, 2008, Defendants noticed the deposition of Bowles in his

individual capacity, proposing a May 22, 2008 deposition date. 

The notice does not cite Rule 30(b)(6), and includes extremely

broad topic areas for examination:

[C]ounsel . . . will take the deposition of Austin

Bowles on matters related to this litigation,

including, but not limited to, (a) his preparation for

his deposition as Plaintiffs’ corporate designee held

on June 6, 2007, (b) verifications of Plaintiffs’

discovery responses in the above action, and (c) facts

and materials provided to him by Plaintiffs’ counsel in

preparation for his above deposition and related to his

verifications as authorized by the Federal Rules of

Civil Procedure.

Def.’s Mot. to Compel, Ex. 2 (doc. no. 377) (emphasis added). 

The notice is also accompanied by extremely broad categories of

documents that Bowles must bring to the deposition:

1. Any and all discovery responses, including but not

limited to, answers to interrogatories and

document production requests, admissions, verified

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by Mr. Austin Bowles on behalf of Plaintiffs,

and/or transcripts of depositions given by Mr.

Bowles on behalf of Plaintiffs, and/or transcripts

of depositions given by Mr. Bowles on behalf of

Plaintiffs, in actions, other than the instant

action, for the period from 1998 to 2008.

2. Documents identified in Ruslana Voloshen and

Northeast Aqua and Physical Therapy Center, Inc.’s

Supplemental Request for Production of Documents--

Set IX, dated May 13, 2008.

Id. (emphasis added). 

By letter of May 19, 2008, counsel for State Farm

indicated that the proposed date would not work, and stated its

position that the deposition was improper, indicating that it

would file a motion for protective order. Id., Ex. 4. The

deposition was scheduled for June 11, 2008. 

On May 30, 2008, however, apparently seeking to preempt

the motion for protective order, Defendants filed a motion to

compel Bowles’s deposition in his individual capacity under Rule

37(a) (doc. no. 377). The motion for protective order seeking to

enjoin the deposition of Bowles in his individual capacity was

filed on June 20, 2008 (doc. no. 387). State Farm also filed a

motion for protective order seeking to enjoin Defendants from

taking the additional Rule 30(b)(6) deposition that Defendants

noticed on May 20, 2008 (doc. no. 381).

The Court decided the motions from the bench following

a hearing on July 14, 2008, denying as moot the motion to compel,

and granting the motions for protective orders. Thereafter, a

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On October 1, 2008, Defendants Ruslana Voloshen and 1

Northeast Aqua and Physical Therapy Center, Inc. noticed an

additional Rule 30(b)(6) deposition on the topics of reliance,

damages and proximate cause. (See doc. no 400.) On October 14,

2008, these Defendants filed a motion to compel the Rule 30(b)(6)

deposition noticed on October 1, 2008. (Id.)

On October 2, 2008, Defendants Guennadi Lioubavini and

Roman Lubavin issued another notice of deposition of State Farm’s

Rule 30(b)(6) designee, also seeking to address issues related to

damages. (See doc. no. 401.) On October 16, 2008, these same

Defendants filed a motion seeking to join the pending motions for

reconsideration (doc. no 398) and to compel (doc. no. 400), which

was styled as a motion to compel the additional Rule 30(b)(6)

deposition noticed on October 2, 2008 (doc. no 401).

Although Defendants issued separate notices of

deposition to Plaintiffs’ Rule 30(b)(6) designee, the October

notices address identical issues and, for the purposes of this

analysis, the Court will construe them as seeking only one

additional deposition of State Farm on the topics of reliance,

damages and proximate cause. See infra Part IV. 

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written order was issued memorializing the decision (doc. no.

393). See Order, July 16, 2008 (doc. no. 393). Defendants have

filed a motion for reconsideration of the order to the extent

that it granted State Farm’s motion for a protective order from

the additional Rule 30(b)(6) deposition noticed on May 20, 2008

(doc. no. 398). Defendants have also filed two new motions to

compel, seeking an additional Rule 30(b)(6) deposition of

Plaintiffs to address previously unexplored issues of reliance,

damages and proximate cause (doc. nos. 400 & 401). This 1

memorandum seeks to explain more fully the basis for the Court’s

July 16, 2008 order. In addition, for the reasons set forth

below, Defendants’ motion for reconsideration (doc. no. 398) and

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motions to compel an additional Rule 30(b)(6) deposition (doc.

nos. 400 & 401) will be denied.

II. MOTION FOR PROTECTIVE ORDER: AUSTIN BOWLES

A. Rule 26(c)(1)

Rule 26(c)(1) governs protective orders and provides,

in pertinent part:

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 . . . forbidding the disclosure or discovery

[or] . . . forbidding inquiry into certain matters, or

limiting the scope of disclosure or discovery to

certain matters; . . . .

Fed. R. Civ. P. 26(c)(1).

B. Bowles’s Deposition in His Individual Capacity

Defendants’ effort to depose Bowles in his individual

capacity is yet another distraction far removed from the merits

of a case already mired in discovery disputes. For the reasons

that follow, the Court has granted Plaintiffs’ motion for

protective order (doc. no. 387).

1. The May 7, 2008 memorandum and order

Defendants believe that a deposition of Bowles in his

individual capacity was ordered by the Court in its May 7, 2008

memorandum and order:

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The Notice of Deposition and document requests were

drafted specifically to follow the Court’s directive to

(1) re-depose Bowles on the subject of the facts (if

any) learned by Bowles from State Farm’s counsel, and

(2) elicit information regarding verification of

discovery responses to determine whether the responses

contained truthful information and whether a further

motion to compel and/or sanctions is required.

Def.’s Mot. to Compel 5 (doc. no. 377).

The Court did not order that the deposition of Bowles

in his individual capacity be taken. To the contrary, the

memorandum clearly directed: “The Rule 30(b)(6) deposition of

Bowles, or another suitable witness, shall resume in accordance

with the order of this Court.” New Horizont, 250 F.R.D. at 215. 

The order directed that “an additional Rule 30(b)(6) deposition

of Mr. Austin Bowles, and/or another appropriately prepared

designee, shall take place no later than June 9, 2008.” Id. at

223. Nowhere did the Court order the deposition of Bowles in his

individual capacity.

2. Good cause

Defendants, of course, do not need an order of the

Court to depose Bowles as an individual; however, any discovery

sought must fit within the broad boundaries of Rule 26:

Unless otherwise limited by court order, the scope of

discovery is as follows: Parties may obtain discovery

regarding any nonprivileged matter that is relevant to

any party’s claim or defense . . . . For good cause,

the court may order discovery of any matter relevant to

the subject matter involved in the action. Relevant

information need not be admissible at the trial if the

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discovery appears reasonably calculated to lead to the

discovery of admissible evidence.

Fed. R. Civ. P. 26(b)(1); see also Robinson v. Hartford Ins. Co.,

No. 03-5618, 2004 WL 1090991, at *1 n.1 (E.D. Pa. May 11, 2004)

(distinguishing between “core” and “good cause” discovery).

At the July 14, 2008 hearing, defense counsel conceded

that Bowles does not have any personal knowledge of the facts

underlying State Farm’s claims or defenses. Rather, Bowles

verified discovery responses on behalf of State Farm. Therefore,

the deposition of Bowles in his individual capacity may only be

permitted if Defendants can demonstrate “good cause.”

First, Defendants argue that Bowles’s testimony is

“obviously relevant . . . in light of this Court’s Order allowing

Moving Defendants to bring a further motion for sanctions.” 

Def.’s Mot. to Compel. 6 (doc. no. 377). As explained above, the

Court discussed the possibility that Bowles had no basis for

verifying the answers to interrogatories, and noted that

“Defendants may be entitled to file a motion to compel responses

to specific interrogatories that State Farm failed to answer or

answered in an evasive or incomplete manner . . . and possibly

for sanctions,” if Bowles verified those responses without any

basis. New Horizont, 250 F.R.D. at 222 n.18. In suggesting that

Defendants might be entitled to file a motion to compel specific

answers to interrogatories, the Court did not intend that

Defendants commence a fishing expedition into Bowles’s

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Defendants suggest that Bowles was provided information 2

by counsel that was not provided to Costanzo, and thus that

Costanzo was an ineffective Rule 30(b)(6) deponent. Even if

Defendants’ assertion is true, the proper avenue for this

grievance is a motion to compel Rule 30(b)(6) deposition

testimony on the basis that Costanzo was not adequately prepared,

not a deposition of Bowles in his individual capacity.

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preparation not only in this case but also as to any related or

unrelated case during the past ten years. Therefore, contrary to

Defendants’ contention, the Court’s order does not provide “good

cause” for the discovery sought.

Second, Defendants argue that “to the extent counsel

provided Bowles information related to the [Rule] 30(b)(6)

deposition,” Defendants are entitled to know it. Def.’s Mot. to

Compel 7 (doc. no. 377). The notice at issue, however, seeks to

depose Bowles in his individual capacity. Defendants have

already conducted two Rule 30(b)(6) depositions of State Farm,

one through Austin Bowles and another through John Costanzo, and

thus any pertinent information could have been obtained from

State Farm’s designee in those depositions.2

Third, Defendants argue that Bowles’s testimony is

“relevant to the Court’s determination of the gravity of State

Farm’s conduct to ascertain the amount of sanctions granted by

[the] May 8, 2008 [sic] Order.” Id. The lengthy and contentious

discovery in this litigation has armed the Court with sufficient

information to determine the sanction amount. Additional

discovery for this purpose would be wasteful.

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Even if Defendants’ notice of deposition satisfied Rule 3

26(b)(1), “[a]ll discovery is subject to the limitations imposed

by Rule 26(b)(2)(C).” Fed. R. Civ. P. 26(b)(1). Under that

rule, “the Court must limit discovery” if it determines that,

inter alia, “the discovery sought is unreasonably cumulative or

duplicative” or “the burden or expense of the proposed discovery

outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C). 

Here, Defendants’ notice of deposition is overbroad as to both

the testimony to be taken and documents to be produced. It

states that testimony must be provided “on matters related to

this litigation, including, but not limited to [certain

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Finally, Defendants argue that they are entitled, by

the Court’s May 7, 2008 order, to know “the facts and materials

provided to Bowles by State Farm’s counsel in preparation for his

deposition in regard to the questions which he was instructed not

to answer.” Id. Defendants are referred to the Court’s May 7,

2008 memorandum and order: 

“It is important to distinguish between facts learned

by a lawyer, a memorandum or document containing those

facts prepared by the lawyer, and the lawyer's mental

impressions of the facts. The facts are discoverable

if relevant. The document prepared by the lawyer

stating the facts is not discoverable absent a showing

required by Federal Rule of Civil Procedure 26(b)(3).”

New Horizont, 250 F.R.D. at 215 (quoting Protective, 137 F.R.D.

at 278 n.1, 281). As explained above, Defendants have had the

opportunity through two Rule 30(b)(6) depositions to discover

relevant facts to which they are entitled. Defendants have not

shown that they are entitled to discovery of the work-productprotected materials provided to Bowles by counsel.

In sum, Defendants have failed to demonstrate any “good

cause” for the deposition of Bowles as an individual.3

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examples].” Def.’s Mot. to Compel, Ex. 2. The documents

required include “[a]ny and all discovery responses, including

but not limited to . . . actions, other than the instant action,

for the period from 1998 to 2008.” Id. These categories are

unreasonably overbroad, and even if “good cause” existed for the

deposition, the scope of the deposition would have to be

narrowed. The notice of deposition also improperly seeks, by May

22, 2008, the documents identified in an already-served May 13,

2008 document request. See id. Requesting on short notice

documents that are already the subject of a pending document

request is nothing more than an end-run around Rule 34(b)(2)(A),

which allows 30 days to respond to document requests.

Defendants’ motion to compel is the mirror-image of 4

State Farm’s motion for a protective order. Because the motion

for a protective order has been granted, Defendants’ motion to

compel has been denied as moot. When a motion to compel is

denied, the Court must impose sanctions in the amount of the fees

and costs associated with responding to the motion unless the

motion was “substantially justified” or it would be otherwise

“unjust” to impose sanctions. See Fed. R. Civ. P. 37(a)(5)(B). 

Here, because there is a genuine dispute between the parties as

to the propriety of Bowles’s deposition, the motion to compel was

substantially justified, and sanctions are not warranted.

Plaintiffs have sought a protective order only with 5

respect to Defendants’ May 20, 2008 notice of deposition (see

doc. no. 381), but have opposed Defendants’ Mots. to Compel the

October 1, 2008 and October 2, 2008 notices (see doc. nos. 407 &

409). In this section, the Court will address only the May 20,

2008 notice of deposition, which is the subject of Plaintiffs’

motion for a protective order (doc. no 381). For a discussion of

the October 1, 2008 and October 2, 2008 notices of deposition,

and the related motions to compel (doc. no. 400 & 401), see infra

Part IV.

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Accordingly, Plaintiffs’ motion for protective order (doc. no.

387) has been granted.4

III. MOTION FOR PROTECTIVE ORDER: RULE 30(B)(6)5

As explained above, Defendants have taken two Rule

30(b)(6) depositions of State Farm in this case: one through

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Austin Bowles on June 6, 2007, and another through John Costanzo

on June 11, 2008. Defendants, by their May 20, 2008 notice of

deposition, now seek an additional Rule 30(b)(6) deposition,

arguing that the questioning at the previous two depositions

focused only on State Farm’s fraud claims, and that additional

questioning is required relating to State Farm’s claims for

conspiracy and unjust enrichment. Because the deposition sought

by Defendants would be the third deposition of State Farm, the

Court must first determine whether repeated depositions of party

should be permitted, in accordance with Federal Rule of Civil

Procedure 30(a)(2)(A)(ii).

A. Rule 30(a)(2)(A)(ii)

A party need not normally obtain leave of court to take

a deposition. Fed. R. Civ. P. 30(a)(1). The exceptions to this

rule include the following: 

A party must obtain leave of court, and the court must

grant leave to the extent consistent with Rule

26(b)(2):

(A) if the parties have not stipulated to the 

deposition and:

(i) the deposition would result in more than

10 depositions being taken under this rule .

. . by the plaintiffs, or by the defendants,

or by the third-party defendants; [or]

(ii) the deponent has already been deposed in

the case; . . .

Fed. R. Civ. P. 30(a)(2).

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The most recent revision of the Federal Rules resulted 6

in the renumbering of these sections. The 10-deposition limit,

currently Rule 30(a)(2)(A)(i), was formerly 30(a)(2)(A). The

second-deposition restriction, currently 30(a)(2)(A)(ii), was

formerly 30(a)(2)(B).

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There is some disagreement as to whether the leave

requirement in Rule 30(a)(2)(A)(ii) applies if a party seeks a

second Rule 30(b)(6) deposition of a corporate party that has

already been deposed. The text of the rule and the advisory

committee notes are silent on the relationship between Rule

30(a)(2)(A)(ii) and 30(b)(6). In contrast, regarding the

immediately previous subsection allowing for a limit of 10

depositions without leave, the notes state: “A deposition under

Rule 30(b)(6) should, for purposes of this limit, be treated as a

single deposition even though more than one person may be

designated to testify.” Fed. R. Civ. P. 30(a)(2)(A) advisory

committee’s note (1993). 

6

Reasoning from this note that “Rule 30(b)(6)

depositions are different,” at least one court has held that

leave of court is not required when seeking a second Rule

30(b)(6) deposition of a corporate party who has already been

deposed. See Quality Aero Tech., Inc. v. Telemetrie Elektronik

GmbH, 212 F.R.D. 313, 319 (E.D.N.C. 2002); see also KimberlyClark Corp. v. Tyco Healthcare Retail Group, No. 05-985, 2007 WL

601837, at *3 n.1 (granting leave but noting that “there is some

question about whether leave of court is even required”). 

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Other courts, however, have held to the contrary. See

Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d

189, 192 (1st Cir. 2001) (holding that it was not plainly wrong

for the district court to quash a Rule 30(b)(6) subpoena when

leave was not obtained); In re Sulfuric Acid Antitrust Litig.,

No. 03-4576, 2005 WL 1994105, at *3-6 (N.D. Ill. Aug. 19, 2005)

(following Ameristar Jet, rejecting Quality Aero, and citing 7

Moore’s Federal Practice § 30.05(1)(c)). Among these courts is

the only court in this circuit to address the issue. In Sunny

Isle Shopping Ctr., Inc. v. Xtra Super Food Cents. Inc., the

Court noted in a footnote order that Rule 30(a)(2)(A)(ii) “has

been held applicable to corporate depositions noticed pursuant to

Rule 30(b)(6).” No. 98-154, 2002 WL 32349792, at *1 (D.V.I. July

24, 2002) (following Ameristar Jet).

The latter view appears to be the better one. Neither

the text of the rule nor the committee’s note exempts Rule

30(b)(6) depositions from the leave requirement in the event of a

second deposition of a party already deposed. Rather, the notes

state only that a Rule 30(b)(6) deposition should be treated as

one deposition, no matter how many designees testify, for

purposes of the 10-deposition limit. This limitation has a

readily discernable logic, as large corporations with voluminous

and complex documents may require testimony from multiple

officers and custodians to provide comprehensive testimony

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Leave was not required to conduct the second Rule 7

30(b)(6) deposition because it was ordered by the Court. See New

Horizont, 250 F.R.D. at 216.

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regarding all matters “known or reasonably available to the

organization.” Fed. R. Civ. P. 30(b)(6). Thus, a contrary rule

would place an unfair constraint on the number of depositions

allowed to parties needing to conduct Rule 30(b)(6) depositions.

The same cannot be said for Rule 30(a)(2)(A)(ii). The

policy against permitting a second deposition of an alreadydeposed deponent is equally applicable to depositions of

individuals and organizations. Taking serial depositions of a

single corporation may be as costly and burdensome, if not more

so, as serial depositions of an individual. In both cases, each

new deposition requires the deponent to spend time preparing for

the deposition, traveling to the deposition, and providing

testimony. In addition, allowing for serial depositions, whether

of an individual or organization, provides the deposing party

with an unfair strategic advantage, offering it multiple bites at

the apple, each time with better information than the last. In

short, the unfairness that manifests under Rule 30(a)(2)(A)(i),

justifying an exception to the 10-deposition limit, does not

manifest under Rule 30(a)(2)(A)(ii).

Here, Defendants have not sought leave of court to

conduct an additional deposition of State Farm; thus the May 20, 7

2008 notice of deposition was improper. Plaintiffs’ motion for

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protective order with respect to the May 20, 2008 notice could be

granted on that basis. In the interest of efficiency, however,

and in order to turn the litigation back to the merits, the Court

will address the appropriateness of the discovery requested as if

Defendants had sought leave of court.

B. Rule 26(b)(2)(C)

The Court may only grant leave to conduct multiple

depositions of a single organization “to the extent consistent

with Rule 26(b)(2).” See Fed. R. Civ. P. 30(a)(2).

Rule 26(b)(2) provides:

On motion or on its own, the court must limit the

frequency or extent of discovery otherwise allowed by

these rules or by local rule 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 burden or expense of the proposed

discovery outweighs its likely benefit,

considering the needs of the case, the amount in

controversy, the parties' resources, the

importance of the issues at stake in the action,

and the importance of the discovery in resolving

the issues.

Fed. R. Civ. P. 26(b)(2)(C); see also Melhorn v. N.J. Transit

Rail Operations, Inc., 203 F.R.D. 176, 180 (E.D. Pa. 2001)

(“Absent some showing of need or good reason for doing so, a

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deponent should not be required to appear for a second

deposition.”).

At the July 14, 2008 hearing, when asked why State Farm

was not asked questions in connection with its non-fraud claims

at the two prior Rule 30(b)(6) depositions, defense counsel

responded as follows:

[T]his is a very complex matter. The way we decided to

proceed is, we decided to take the fraudulent issues

which were related to the four counts of the complaint

first, then see what happens and then, you know, seek

depositions on the other three counts of the complaints

which are RICO conspiracy, unjust enrichment, and

restitution which are side issues really. We just

simply decided to proceed in that manner.

Hr’g Tr. 19:2-10, July 14, 2008.

The justification provided is insufficient. Defense

counsel provides no reason, let alone a good reason, why the

questions relating to State Farm’s non-fraud claims were not

noticed at the previous two Rule 30(b)(6) depositions; Defendants

simply chose to proceed in such a manner. However, the Federal

Rules do not contemplate the “wait-and-see” approach to discovery

taken by Defendants. Such an idiosyncratic approach would permit

Defendants, without having demonstrated any good cause for doing

so, to avoid drafting a comprehensive notice of deposition and

instead conduct depositions seriatim, thereby shifting costs to

the opposing side, which would be forced to expend resources

preparing for several Rule 30(b)(6) depositions, instead of one.

Therefore, the Court cannot grant Defendants leave to

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conduct additional Rule 30(b)(6) depositions of State Farm, as

“the party seeking discovery has had ample opportunity to obtain

the information by discovery in the action,” and has not provided

a good reason for failing to do so. Fed. R. Civ. P. 26(b)(2)(C). 

Accordingly, Plaintiffs’ motion for protective order (doc. no.

381) has been granted.

C. Motion for Reconsideration

Defendants now seek reconsideration of the Court’s July

16, 2008 order to the extent that it granted State Farm’s motion

for a protective order precluding an additional Rule 30(b)(6)

deposition of State Farm. A motion for reconsideration, however,

may be granted only under certain circumstances:

The purpose of a motion for reconsideration, we have

held, is to correct manifest errors of law or fact or

to present newly discovered evidence. Accordingly, a

judgment may be altered or amended if the party seeking

reconsideration shows at least one of the following

grounds: (1) an intervening change in the controlling

law; (2) the availability of new evidence that was not

available when the court granted the motion for summary

judgment; or (3) the need to correct a clear error of

law or fact or to prevent manifest injustice.

Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d

669, 677 (3d Cir. 1999) (internal citations and quotations

omitted). “[A] motion for reconsideration addresses only factual

and legal matters that the Court may have overlooked. It is

improper on a motion for reconsideration to ask the Court to

rethink what it had already thought through--rightly or wrongly.” 

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Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122

(E.D. Pa. 1993) (quotation omitted).

Defendants argue that the Court has overlooked the

cases permitting multiple Rule 30(b)(6) depositions of a party. 

The Court did not overlook these cases; in fact, they are the

very same cases upon which Defendants based their arguments at

the hearing on the motion for protective order. Accordingly,

because they have already been considered by the Court, these

cases are not a proper basis for reconsideration.

Defendants additionally argue that State Farm’s abuse

of the discovery process has necessitated their strategy of

taking depositions seriatim. Defendants further argue that State

Farm acquiesced to additional Rule 30(b)(6) depositions, pointing

to a July 19, 2007 letter from counsel for State Farm stating

that “Defendants are free to draft a new corporate designee

notice on [the issues of reliance and damages] pursuant to Rule

30(b)(6).” Def.’s Mot. for Recons., Ex. 1. Defendants finally

point to the delay caused in this case by State Farm’s abuse of

the discovery process, including its failure to prepare Bowles

for deposition.

The conduct of the parties in this case has not been a

shining example of the discovery process. However, State Farm’s

delay in providing discovery relating to its fraud claims does

not explain why Defendants did not even attempt to obtain

Case 2:03-cv-06516-ER Document 417 Filed 11/26/08 Page 19 of 24
In Plaintiffs’ response to Defendants’ motion for 8

reconsideration, Plaintiffs dispute Defendants’ characterization

of their July 19, 2007 letter, noting that “[b]y suggesting a new

notice Plaintiffs were not waiving their objections to said

notice, but rather advising opposing counsel of their position.” 

Pl.’s Resp. Defs.’ Mot. to Recons. 9 (doc. no. 399). 

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discovery on State Farm’s non-fraud claims until such a late

date. In other words, even accepting that State Farm’s conduct

during the discovery period violated the Federal Rules of Civil

Procedure, for which they were sanctioned previously (see, e.g.,

5/7/08 Order at 37 (doc. no. 374)), this does not explain why

Defendants, having served their first Rule 30(b)(6) deposition

notice on November 1, 2006, then waited until May 20, 2008, to

serve a Rule 30(b)(6) deposition notice addressing non-fraud

issues. The fact that counsel for State Farm suggested in a July

19, 2007 letter that Defendants notice an additional Rule

30(b)(6) deposition did not entitle Defendants to wait nearly a

year before noticing that deposition or give Defendants carte

blanche to indiscriminately notice multiple Rule 30(b)(6)

depositions.8

Rather, the only explanation for Defendants’ delay in

seeking these Rule 30(b)(6) depositions appears to be the one

offered by defense counsel at the July 14, 2008 hearing on the

motion for protective order: “We just simply decided to proceed

in that manner.” Hr’g Tr. 19:2-10, July 14, 2008. Accordingly,

Defendants’ motion for reconsideration (doc. no. 398) will be

Case 2:03-cv-06516-ER Document 417 Filed 11/26/08 Page 20 of 24
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denied. 

IV. MOTIONS TO COMPEL: OCTOBER 1, 2008 AND OCTOBER 2, 2008

NOTICES

On October 1, 2008 and October 2, 2008, Defendants

noticed yet another 30(b)(6) deposition, this time on the

previously unexamined areas of reliance, damages and proximate

cause. On October 14, 2008 and October 16, 2008, Defendants

filed motions to compel this last minute deposition (doc. nos.

400 & 401). On October 27, 2008 and October 30, 2008, Plaintiffs

filed their responses to Defendants’ motions to compel (doc. nos.

407 & 409), which seek an award of the costs they have incurred

in responding to Defendants’ October notices and motions,

pursuant to Fed. R. Civ. P. 37(a)(5)(B). See, e.g., Pls.’ Resp.

to Defs.’ Mot. to Compel 3 (doc. no. 407). 

Defendants, by their October notices of deposition,

seek an opportunity to depose State Farm’s Rule 30(b)(6) designee

for the fourth time. This will not be permitted. Again,

Defendants issued the October notices of deposition without

either seeking leave of the Court or demonstrating good cause. 

Specifically, Defendants have failed to explain to the Court why

they waited until October 1, 2008 - just thirteen days before the

lengthy discovery phase was scheduled to conclude - to begin to

explore with a State Farm Rule 30(b)(6) designee the issues of

Case 2:03-cv-06516-ER Document 417 Filed 11/26/08 Page 21 of 24
As discussed above, the “wait-and-see” approach to 9

noticing Rule 30(b)(6) depositions that Defendants’ urge this

Court to adopt is not contemplated by the Federal Rules and would

have significant negative implications on the costs of discovery. 

(See supra Part III.B.) 

Sanctions will not be awarded in this instance. See 10

supra n.4 (noting that “when a motion to compel is denied, the

Court must impose sanctions in the amount of the fees and costs

associated with responding to the motion unless the motion was

‘substantially justified’ or it would be otherwise ‘unjust’ to

impose sanctions” (quoting Fed. R. Civ. P. 37(a)(5)(B))). Here,

Defendants’ motions to compel were substantially justified

because they were brought while their motion for reconsideration

was pending before the Court. Thus, Defendants have a colorable

argument that, at the time they filed the instant motions, the

propriety of additional Rule 30(b)(6) depositions of State Farm

was yet to be ruled on by the Court. 

-22-

reliance, damages, and proximate cause. Rather, in their motion

to compel, Defendants repeat their earlier argument that they are

entitled to notice “several depositions of corporate designees on

different subjects” and further state that they “should not be

penalized for choosing such a strategy by no fault of their own.” 

Defs.’ Mot. to Compel 2 (doc. no. 400). Defendants’ proffered

justification is inadequate and their newest motions to compel

(doc. nos. 400 & 401), will be denied. An appropriate order 9

follows.10

IV. CONCLUSION

The Court has granted Plaintiffs’ motions for

protective order (doc. nos. 381, 387), and has denied as moot

Defendants’ motion to compel (doc. no. 377). Defendants’ motion

Case 2:03-cv-06516-ER Document 417 Filed 11/26/08 Page 22 of 24
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for reconsideration (doc. no. 398) and Defendants’ motions to

compel an additional Rule 30(b)(6) deposition (doc. nos. 400 &

401) will be denied. 

Case 2:03-cv-06516-ER Document 417 Filed 11/26/08 Page 23 of 24
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STATE FARM MUTUAL AUTOMOBILE : CIVIL ACTION

INSURANCE CO. et al., : NO. 03-6516

 :

Plaintiffs, :

:

v. :

:

NEW HORIZONT, INC. et al., :

:

Defendants. :

O R D E R

AND NOW, this 25th day of November, 2008, for the

reasons stated in the accompanying Memorandum, it is hereby

ORDERED that Defendants’ motion for reconsideration (doc. no.

398) is DENIED with prejudice.

IT IS FURTHER ORDERED that Defendants’ motion to compel

additional 30(b)(6) depositions (doc. nos. 400 & 401) are DENIED

with prejudice.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

Case 2:03-cv-06516-ER Document 417 Filed 11/26/08 Page 24 of 24