IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MC TRILOGY TEXAS, LLC, §

§

Plaintiff, §

§

VS. § Civil Action No. 3:22-CV-2154-D

§

CITY OF HEATH, TEXAS, §

§

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this action challenging a municipality’s land use decisions, defendant the City of

Heath, Texas (“Heath”) noticed and subpoenaed non-party the City of McLendon-Chisholm,

Texas (“McLendon”) for a deposition under Fed. R. Civ. P. 30(b)(6). McLendon moves to

quash the notice and subpoena of its corporate representative. Heath opposes the motion.

Although the court finds the notice and subpoena are deficient in several respects, it

concludes that McLendon’s motion should be denied at this time and that Heath and

McLendon should be ordered to meet and confer, after which the court will consider

modifying any noticed deposition topic that remains in dispute.

I

McLendon asserts, inter alia, that the court should quash the notice and subpoena

because Heath is seeking irrelevant information; Heath can obtain the designated information

from other entities, including MC Trilogy, that are “larger” and “have far more resources”;

the topics covered in the subpoena are not limited in time; the topics include broadly defined

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terms, such as the “Trilogy Development,” which contemplate matters beyond McLendon’s

corporate knowledge; and the burden imposed on McLendon to prepare its corporate

representative would be great because it only employs a handful1

 of people full-time.2 

McLendon also maintains that the discovery Heath seeks should be limited under Rule

26(b)(2)(C) because it is duplicative and cumulative of other discovery that Heath has

already obtained. For example, Heath deposed McLendon’s Mayor Pro Tem Adrienne

Balkum (“Mayor Balkum”) for six hours regarding water piping, pressure, and flow issues

in McLendon; the RCH Water Supply Corporation; and McLendon’s attempts to obtain a

certificate of convenience and necessity3

 from the Public Utility Commission of Texas. 

1

The record contains conflicting information about whether McLendon employs three

or five people full-time. The difference is immaterial to this decision.

2

The court assumes the parties’ familiarity with its prior memorandum opinions and

orders. See MC Trilogy Tex., LLC v. City of Heath, 662 F.Supp.3d 690, 695-96 (N.D. Tex.

Mar. 16, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL 3635639,

at *1 (N.D. Tex. May 24, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023

WL 5918925, at *1 (N.D. Tex. Sept. 11, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City

of Heath, 2023 WL 6333115, at *1 (N.D. Tex. Sept. 28, 2023) (Fitzwater, J.); MC Trilogy

Tex., LLC v. City of Heath, 2023 WL 7004442, at *1 (N.D. Tex. Oct. 24, 2023) (Fitzwater,

J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL 7190652, at *1 (N.D. Tex. Nov. 1,

2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL 8569018, at *1 (N.D.

Tex. Dec. 11, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL

8583487, at *1 (N.D. Tex. Dec. 11, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of

Heath, 2023 WL 8583876, at *1 (N.D. Tex. Dec. 11, 2023) (Fitzwater, J.); MC Trilogy Tex.,

LLC v. City of Heath, 2023 WL 8850760, at *1 (N.D. Tex. Dec. 21, 2023) (Fitzwater, J.);

MC Trilogy Tex., LLC v. City of Heath, 2024 U.S. Dist. LEXIS 10336, at *3-5 (N.D. Tex.

Jan. 4, 2024) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2024 WL 201365, at *1

(N.D. Tex. Jan. 18, 2024) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2024 WL

346512, at *1 (N.D. Tex. Jan. 29, 2024) (Fitzwater, J.).

3

A certificate of convenience and necessity “give[s] holders the exclusive right to

provide water or sewer service within particular service areas.” Green Valley Special Util.

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Heath now seeks to depose McLendon’s corporate representative on substantially similar

topics.4

Heath responds that McLendon has not demonstrated that the requested discovery is

burdensome because it has not offered evidence that shows the nature of the burden.5

 Heath

also contends that McLendon has a duty under Rule 30(b)(6) to designate a witness who can

testify as to matters that are reasonably available to the organization, which exceeds what the

witness personally knows.

The court is deciding the motion on the briefs, without oral argument.

II

Rule 30(b)(6) governs deposition notices or subpoenas directed to an organization and

“imposes burdens on both the discovering party and the designating party.” Johnson v. Big

Lots Stores, Inc., 2008 WL 6928161, at *2 (E.D. La. May 2, 2008). “The effectiveness of

Rule 30(b)(6) ‘bears heavily upon the parties’ reciprocal obligations’ to identify topics with

Dist. v. City of Cibolo, 866 F.3d 339, 340 (5th Cir. 2017) (citing Tex. Water Code Ann. §

13.242(a)), abrogated by Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460

(5th Cir. 2020) (en banc).

4

McLendon seeks in its reply brief a protective order limiting the scope or time of its

corporate representative’s deposition, but it does not mention Rule 26(c)(1) in its opening

brief. The court will not consider an argument raised for the first time in a reply brief. See,

e.g., Jacobs v. Tapscott, 2006 WL 2728827, at *7 (N.D. Tex. Sept. 25, 2006) (Fitzwater, J.),

aff’d, 277 Fed. Appx. 483 (5th Cir. 2008).

5

On March 4, 2024 the court permitted McLendon to supplement its motion with

evidence that supported its allegations. McLendon filed affidavits from Mayor Balkum and

Konrad Hildebrandt, McLendon’s City Administrator. Heath did not submit a supplemental

response.

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particularity and prepare witnesses in good faith.” Westley v. Out W. Express, LLC, 2023

WL 8934937, at *3 (E.D. La. Dec. 27, 2023) (quoting Lipari v. U.S. Bancorp, N.A., 2008

WL 4942618, at *5 (D. Kan. Oct. 16, 2008)). 

The discovering party’s deposition notice must “describe with reasonable particularity

the matters for examination” under Rule 30(b)(6). Rule 30(b)(6). This requirement aims to

enable the designating party “to identify the person who is best situated to answer questions

about the matter, or to make sure that the person selected to testify is able to respond

regarding that matter.” 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure, § 2103 (3d ed. 2023). In light of this goal, the discovering party must “take care

to designate, with painstaking specificity, the particular subject areas that are intended to be

questioned, and that are relevant to the issues in dispute.”6 Matherne v. Huntington Ingalls

Inc., 2024 WL 21569, at *3 (E.D. La. Jan. 2, 2024) (quoting Pauls v. Prudential Ins. Co. of

Am., 2016 WL 6397564, at *4 (N.D. Tex. Oct. 28, 2016) (Horan, J.)). “The court may limit

a Rule 30(b)(6) deposition notice to the extent that it requests the organization to designate

an agent to testify on topics of information that are overly broad, vague, or ambiguous.” 

6

District courts outside this circuit have similarly limited discovery under Rule

30(b)(6)’s reasonable particularity requirement. See Estes v. Providence Health & Servs.,

2023 WL 8531775, at *7 (E.D. Wash. Dec. 8, 2023) (limiting discovery when “the breadth

of subjects and number of topics identified . . . renders a responding party’s efforts to

designate a knowledgeable person unworkable”); Palakovic v. Wetzel, 2019 WL 6896659,

at *8 (W.D. Pa. Dec. 18, 2019) (limiting discovery when the responding party cannot

“reasonably identify the metes and bounds of the listed topics”); Seliger v. Breitbart News

Network, LLC, 2021 WL 707063, at *1 (S.D.N.Y. Feb. 22, 2021) (assessing, among other

factors, whether a reasonable person reading the notice would understand how to prepare for

the deposition).

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United Healthcare Servs., Inc. v. Next Health, LLC, 2021 WL 9146632, at *2 (N.D. Tex. Oct.

13, 2021) (Rutherford, J.) (internal quotation marks omitted) (quoting Dean v. Shell Pipeline

Co., 2020 WL 2813521, at *3 (M.D. La. May 29, 2020)).

The discovering party’s deposition notice is also subject to limitations under Rule 26. 

Rule 26(b)(1) provides that a party may obtain discovery of “any nonprivileged matter that

is relevant to any party’s claim or defense and proportional to the needs of the case.” Rule

26(b)(1). “Relevancy is broadly construed, and a request for discovery should be considered

relevant if there is ‘any possibility’ that the information sought may be relevant to the claim

or defense of any party.” Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex.

2005) (Ramirez, J.) (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689 (D. Kan. 2001)). 

Rule 26(b)(2)(C) also provides that a court “must limit the frequency or extent of discovery

otherwise allowed by” the Federal Rules of Civil Procedure when

(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)(2)(C). 

After the discovering party satisfies its burden, the designating party must choose “one

or more officers, directors, or managing agents” or “other persons who consent” to testify on

its behalf. Rule 30(b)(6). The designating party has a “duty to present and prepare a Rule

30(b)(6) designee beyond matters personally known to that designee or to matters in which

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that designee was personally involved.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416,

433 (5th Cir. 2006) (citation omitted). The designating party “must prepare the designee to

the extent matters are reasonably available, whether from documents, past employees, or

other sources.” Id. The designee’s statements are “binding” on the designating party

because, by making the designation, the designating party “represents that the [designee] has

authority to speak on [its] behalf[.]” Id. at 433. The discovering party may also use the

designee’s statements for any purpose. See Rule 32(a)(3) (“An adverse party may use for

any purpose the deposition of a party or anyone who, when deposed, was the party’s . . .

designee under Rule 30(b)(6)[.]”). Because the employee’s statements are binding and the

adverse party can use them for any purpose, this discovery device can elicit potentially

impactful testimony. The court must therefore ensure that the discovering party has met its

initial burden under Rule 30(b)(6). See Blackrock Allocation Target Shares: Series S

Portfolio v. Wells Fargo Bank, 2017 WL 9400671, at *2 (S.D.N.Y. Apr. 27, 2017).

 When the deponent from whom discovery is sought is not a party to the lawsuit, the

court must also consider Rule 45, which governs subpoenas to obtain discovery from nonparties. The party issuing the subpoena “must take reasonable steps to avoid imposing undue

burden or expense on a person subject to the subpoena.” Rule 45(d)(1). Rule

45(d)(3)(A)(iv) requires that, on timely motion, the court must quash or modify a subpoena

if it “subjects a person to undue burden.” Rule 45(d)(3)(A)(iv). The movant has the burden

of proof, see id.; Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004)

(citing Williams v. City of Dallas, 178 F.R.D. 103, 109 (N.D. Tex. 1998) (Fitzwater, J.)), and

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must meet “the heavy burden of establishing that compliance with the subpoena would be

‘unreasonable and oppressive.’” Williams, 178 F.R.D. at 109. “Whether a burdensome

subpoena is reasonable must be determined according to the facts of the case.” Linder v.

Dep’t of Def., 133 F.3d 17, 24 (D.C. Cir. 1998) (internal quotation marks omitted). A

witness’ status as a non-party entitles the witness to consideration regarding expense and

inconvenience. See Rule 45(d)(2)(B).7

III

The court now turns to McLendon’s motion to quash, which presents the initial

question whether Heath’s deposition notice complies with Rules 30(b)(6) and 26.8

A

Heath does not specify its proposed deposition topics with reasonable particularity.

1

Topic Nos. 1 and 2 do not state a source of information. For example, Topic No. 1

concerns “[c]ommunications between [McLendon] and any other Person pertaining to the

provision of water or sewer service to the Trilogy Development.” Non-P. Br. (ECF No. 216)

7

McLendon implies that this court should analyze this motion according to the nonexclusive Wiwa factors: “relevance, the need of the party for the documents, the breadth of

the document request, the time period covered by it, the particularity with which the

documents are described, and the burden imposed.” Wiwa, 392 F.3d at 818. But because

McLendon does not seek relief from a subpoena duces tecum, the court will not analyze this

motion according to these factors.

8

McLendon has standing to quash the subpoena because it is the person to whom the

subpoena is issued. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979). 

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Ex. A at 7 (emphasis added). Topic No. 2 also concerns communications between

McLendon and “any other person.” Id. District courts in this circuit have held that a topic

that covers information “from any source” is improper under Rule 30(b)(6) because a

discovering party does not define a topic with reasonable particularity when it “requir[es] a

deponent to prepare a witness to address unspecified topics from unstated sources[.]” 

Westley, 2023 WL 8934937, at *4; see also Chauvin v. United Parcel Serv., Inc., 2023 WL

4175100, at *8 (E.D. La. June 26, 2023). Because Heath has not identified any source of

information in Topic Nos. 1 and 2, the noticed topics are too broad.

2

Topic Nos. 1-26 are also deficient because they do not reasonably specify the subject

matter or time period. These proposed deposition topics concern communications or

knowledge of material exchanged regarding “the provision of water and sewer services.” 

Non-P. Br. (ECF No. 216) Ex. A at 7-9. This court previously acknowledged that the scope

of the subject matter—“the provision of water and sewer services”—is quite broad, because

it could “arguably include communications on water and sewer services associated with

domestic use, public use, stormwater runoff, and groundwater flow.” MC Trilogy Tex., LLC

v. City of Heath, 2023 WL 7190652, at *4 (N.D. Tex. Nov. 1, 2023) (Fitzwater, J.). Heath

does not attempt to meaningfully narrow the scope of the subject matter. Moreover, district

courts in this circuit “routinely [find]” “topics with no temporal restriction or element” to be

“overbroad” under Rule 30(b)(6). United Healthcare Servs, Inc., 2021 WL 9146632, at *4

(first citing Cook v. City of Dallas, 2017 WL 9534098, at *5 (N.D. Tex. Apr. 10, 2017)

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(Godbey, J.); then citing Ransom v. M. Patel Enters. Inc., 2011 WL 3439255, at *4 (W.D.

Tex. Aug. 5, 2011)). Heath is not entitled to burden McLendon with the task of preparing

a corporate designee to testify about wide-ranging information from seven institutional

sources over an indefinite period. Because Heath has not narrowed the subject matter or time

period in Topic Nos. 1-26, the noticed topics are too broad.

3

Consistent with the duty to confer in good faith about the matters for examination in

anticipated depositions under Rule 30(b)(6) and the preference of courts to modify rather

than quash a subpoena, the court denies the motion to quash. Instead, the court orders

counsel for the parties to meet and confer regarding the scope of the Rule 30(b)(6) notice and

subpoena. In particular, the parties must confer about reducing the sources of information,

limiting the scope of the subpoena’s subject matter, and confining the relevant time period. 

The meeting must occur within 14 days of the date this memorandum opinion and order is

filed, and the parties’ joint report on the status of their conference must be submitted within

7 days of the date their conference is completed. The court will then consider modifying any

noticed deposition topic that remains in dispute.

B

The court next addresses McLendon’s assertion that Heath’s Rule 30(b)(6) notice

should be limited under Rule 26(b)(2)(C) to the extent that, at the required conference, the

parties continue to dispute the discoverability of certain information.

Although Heath’s Rule 30(b)(6) noticed deposition topics seek similar information

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from McLendon that Heath sought from Mayor Balkum and other parties, McLendon’s

assertion that the discovery is duplicative or cumulative overlooks the purpose of a Rule

30(b)(6) deposition. District courts have long recognized that deposition testimony under

Rule 30(b)(6) is distinct from deposition testimony of other witnesses. See Fulbright v.

Union Pac. R.R. Co., 2021 WL 3809103, at *2 (N.D. Tex. June 29, 2021) (Toliver, J.); Anya

v. Tricam Indus., Inc., 2020 WL 13094091, at *2 (W.D. Tex. Jan. 19, 2020); Sabre v. First

Dominion Cap., LLC, 2001 WL 1590544, at *1 (S.D.N.Y. Dec. 12, 2001); La. Pac. Corp.

v. Money Mkt. 1 Inst. Inv. Dealer, 285 F.R.D. 481, 486-87 (N.D. Cal. 2012); see also Wright

& Miller, supra, § 2103 (“A deposition under Rule 30(b)(6) differs in significant respects

from the normal deposition.”). Rule 30(b)(6) testimony binds the entity and requires the

entity to prepare and produce all reasonably available information from documents, past

employees, or other sources. See Brazos River Auth., 469 F.3d at 433-34. This discovery

device entitles parties to the knowledge of an entire organization and its positions on matters

relevant and discoverable. See Rule 26, 30(b)(6). Because discovery under Rule 30(b)(6)

is not duplicative or cumulative simply because individual deponents have testified about the

topics noticed in the Rule 30(b)(6) deposition notice, McLendon’s argument lacks merit.

* * *

For the reasons explained, although the court finds that Heath’s notice and subpoena

are deficient in several respects, it concludes that McLendon’s motion should be denied at

this time and that Heath and McLendon should be ordered to meet and confer, after which 

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the court will consider modifying any noticed deposition topic that remains in dispute.

SO ORDERED.

April 16, 2024.

_________________________________

SIDNEY A. FITZWATER

SENIOR JUDGE

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