In the United States Court of Federal Claims

No. 93-655C 

(E-Filed: November 12, 2015)

 

)

Deposition Discovery; Protective

Order; RCFC 26(c); RCFC

30(b)(6). 

ANAHEIM GARDENS, et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

 Defendant. )

)

Harry J. Kelly, III, Washington, D.C., for plaintiffs.

David A. Harrington, Senior Trial Counsel, with whom were Joyce R. Branda, Acting 

Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Franklin E. White, 

Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, Washington, D.C., for defendant. 

OPINION and ORDER

This is a temporary regulatory takings case. Plaintiffs are fifty-one owners of lowincome housing who claim a taking of their contractual right to prepay governmentinsured mortgages on their respective housing projects, and thus to terminate certain 

governmental restrictions on rents and other aspects of the properties’ use. See Sixth 

Am. Compl. ¶¶ 79-82, ECF No. 376; 2d Am. Compl. ¶¶ 76-78, Algonquin Heights 

Assocs., L.P. v. United States, No. 97-582, ECF No. 54. Defendant is the United States 

Department of Housing and Urban Development (HUD, the government or defendant). 

Plaintiffs base their claims on either the Emergency Low Income Housing Preservation 

Act of 1987 (ELIHPA) or the Low Income Housing Preservation and Resident 

Homeownership Act of 1990 (LIHPRHA). 

These cases were formally consolidated on April 30, 2013, with Anaheim Gardens 

as the lead case. See Order, ECF No. 327. Fact and expert discovery are now underway 
2

for six plaintiffs, known as the First Wave plaintiffs, and is scheduled to conclude thirty 

days after the court rules on two motions for protective order now pending before it. 

Scheduling Order 1, ECF No. 378. 

This order resolves plaintiffs’ motion for a protective order regarding defendant’s

Rule 30(b)(6) deposition notice issued to First Wave plaintiff Cedar Gardens Associates

(Cedar Gardens).

1

 Pls.’ Mot., ECF No. 375. Plaintiffs seek a protective order “limiting 

the scope of the . . . Rule 30(b)(6) deposition of Cedar Gardens to topics 14, 15 and 16 

[out of 16 topics] in the current deposition notice, and documents produced for the first 

time after the August 2013 depositions” of James R. Bancroft. Id. at 2. Defendant 

responds that it is entitled to an “unfettered Rule 30(b)(6) deposition of the Cedar 

Gardens partnership,” and urges the court to deny plaintiffs’ motion. Def’s Resp., ECF 

No. 383. Plaintiffs’ filed a reply. Pls.’ Reply, ECF No. 386. Both parties filed an 

appendix with documents in support of their briefs. Pls.’ App. (PA), ECF No. 375-1; 

Def.’s App. (DA), ECF No. 383-1. Plaintiffs’ motion is ripe for decision. 

For the reasons explained below, plaintiffs’ motion is GRANTED-IN-PART and 

DENIED-IN-PART. 

 

1 The court’s rules require that a motion for a protective order “must include a 

certification that the movant has in good faith conferred or attempted to confer with other 

affected parties in an effort to resolve the dispute without court action.” RCFC 26(c)(1). 

Plaintiffs did not include this certification with their motion. However, according to 

plaintiffs, “[t]he parties conferred about this dispute several times but were unable to 

reach resolution.” Pls.’ Mot. 2. Plaintiffs also provided a detailed history of the parties’ 

attempts to resolve this dispute, including discussions about defendant’s draft Rule 

30(b)(6) notice, plaintiffs’ offer to make Mr. Bancroft’s individual testimony binding on 

Cedar Gardens, and defendant’s two offers to drop topic numbers 1-13 from its Rule 

30(b)(6) notice, in return for certain stipulations from Cedar Gardens. See Pls.’ Mot. 2-4; 

Def.’s Resp. 4-5; see also DA018-DA019, DA022-DA023, DA025, DA029 (various 

email messages between counsel discussing defendant’s Rule 30(b)(6) notice). Based on 

these representations, the court is satisfied that plaintiffs have complied with Rule 

26(c)(1). 
3

I. Background 

A. Cedar Gardens Associates History 

From 1970 to 1995, Cedar Gardens was a general partnership with, at varying 

points in its history, either two, three, or twenty-two general partners.2 See DA004-

DA005 (plaintiffs’ response to defendant’s interrogatory for partnership information).

Regardless of the number of general partners, the record shows that at every point 

in Cedar Gardens’ history the same two individuals either owned the largest share of 

Cedar Gardens (at least 45 percent each), or served as the only managing general 

partners. Those two individuals were Mr. James R. Bancroft and Mr. James H. 

McAlister. See DA004-DA005; Pls.’ Reply 3-5 (discussing Mr. Bancroft’s role in Cedar 

Gardens). Plaintiffs represent that Mr. McAlister is deceased, and that at the time of 

plaintiffs’ motion, Mr. Bancroft was 95 years old. See Pls.’s Mot 2. Plaintiffs state that 

as Mr. Bancroft is “the sole living partner of the Cedar Gardens entity,” id., they will 

designate him as the Rule 30(b)(6) witness for Cedar Gardens, see id. at 1, 5. 

 

2 Plaintiffs’ response to defendant’s interrogatory shows that two individuals, 

Messrs. Bancroft and McAlister—each of whom owned 45% of Cedar Gardens in

1970—were the only two general partners from 1970 to 1995, and after 1995, were the 

only two managing general partners. See DA004-DA005.

As noted by defendant, the record provides conflicting evidence as to the point at 

which Messrs. Bancroft and McAlister added twenty additional general partners, bringing 

their total to twenty-two general partners. Def.’s Resp. 4. In their written response to 

defendant’s interrogatory, plaintiffs provide that this occurred in 1995, DA005, while Mr. 

Bancroft suggested during his deposition that this happened no later than the 1980s, see

PA065 (Bancroft Dep. 49:4-20, Aug. 29, 2013) (testifying that Cedar Gardens added 

additional partners “when the project was finished and ready to operate,” and that those 

additional partners “merely put up money and had no interest in managing the project”); 

PA090 (Bancroft Dep. 149:5-150:14, Aug. 29, 2015) (discussing a December 1987 

memo regarding possible purchase of the “additional property” and referring to 

information provided to “our partners”). The point at which Messrs. Bancroft and

McAlister brought in twenty additional general partners is immaterial. The material point 

is that plaintiffs stated that only Messrs. Bancroft and McAlister were managing general 

partners, DA005, and nothing in the record suggests this statement is inaccurate. 
4

B. August 2013 Individual Deposition of James R. Bancroft 

In May 2013, plaintiffs requested that defendant schedule Mr. Bancroft’s 

individual deposition, both because he was then 93 years of age, and because he had 

certain health issues, which plaintiffs explained to defendant in specific detail. See

DA009 (email between counsel). Plaintiffs made this request pursuant to the April 2013 

scheduling order entered by the judge previously assigned to this case, in which that 

judge permitted depositions of any individual if there was a concern that the witness 

might be unavailable to testify at a later trial. See Pls.’ Mot. 2 & n.1; see also Order, Apr. 

30, 2013, ECF No. 327. 

By mutual agreement, Mr. Bancroft was deposed in his individual capacity over 

two full days in August 2013, at which time each party conducted both direct and crossexamination. Pls.’ Mot. 1-2; PA001-PA052 (Bancroft Dep., Aug. 28, 2013); PA053-

PA132 (Bancroft Dep., Aug. 29, 2013). 

During his deposition, Mr. Bancroft testified about a portion of Cedar Gardens’ 

claim that it had not previously presented to defendant.3 In 1988, Cedar Gardens 

purchased a parcel of land adjacent to Cedar Gardens Apartments, the housing project for 

which it brings its takings claim. See Pls.’ Mot. 4 n.3; PA189. The parties refer to this 

parcel of land as the “additional property” or the “additional parcel.” Pls.’ Mot. 4; Def.’s 

Resp. 5. After Mr. Bancroft’s August 2013 deposition, Cedar Gardens produced new 

documents and responded to additional interrogatories about the additional property. 

Pls.’ Mot. 4.

C. Defendant’s Rule 30(b)(6) Deposition Notice and Plaintiffs’ Motion for 

Protective Order 

Defendant issued Cedar Gardens a Rule 30(b)(6) deposition notice for sixteen 

enumerated topics, to which plaintiffs have no objection for the production of a witness 

to respond to questions on three topics (topic nos. 14-16). Plaintiffs concede that topic 

numbers 15 and 16 relate to the additional property, and they have no objection to 

answering questions about either topic, or about the documents it produced after Mr. 

Bancroft’s August 2013 deposition. Id. Plaintiffs also acknowledge that topic number 14 

is not duplicative of the August 2013 deposition, and have no objection to this topic. Id.

at n.4.

 

3 According to plaintiffs’ counsel, “[d]uring the second day of depositions, Mr. 

Bancroft turned over some letters addressing the parcel that had not been previously 

produced to the Plaintiffs lawyers, or the Government.” Pls.’ Mot. 4 n.3.
5

Plaintiffs, however, argue that topic numbers 1-13 are “duplicative and 

cumulative” of the topics about which defendant questioned Mr. Bancroft during his 

August 2013 deposition, id. at 1, 4, and ask the court to enter a protective order under 

Rule 26(c) barring defendant from questioning its witness on those topics, id. at 2. 

Plaintiffs further represent that they have repeatedly offered to make Mr. Bancroft’s 

individual testimony binding on Cedar Gardens, thus eliminating the need for defendant 

to take Rule 30(b)(6) testimony on topic number 1-13, and that this offer remains open. 

Id. at 3 n.2; see also id. at 3 (“Plaintiffs offer[] to stipulate that all of Mr. Bancroft’s prior 

testimony in the August 2013 depositions would be binding on the Cedar Gardens 

entity.”). 

Defendant responds that the standard for a protective order is not whether 

discovery is cumulative or duplicative, but whether it is “unreasonably” cumulative or 

duplicative. Def.’s Resp. 8. Defendant insists that its Rule 30(b)(6) notice does not rise 

to this level, thus plaintiffs have failed to show that a protective order is warranted. 

II. Legal Standard

The court’s rules provide that the court must limit 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 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. 

RCFC 26(b)(2)(C). As further provided by the court’s rules, a party may seek a 

protective order from discovery, and “[t]he court may, for good cause, issue an order to 

protect a party . . . from annoyance, embarrassment, oppression, or undue burden or 

expense. . . .” RCFC 26(c)(1) (emphasis added). The court has a variety of options 

should it find that a motion for protective order is warranted, including “forbidding the 

. . . discovery,” or “forbidding inquiry into certain matters, or limiting the scope of . . . 

discovery to certain matters.” RCFC 26(c)(1)(A), (D).
6

The burden of demonstrating “good cause” rests with the party seeking to shield 

itself from discovery. Capital Props., Inc. v. United States, 49 Fed. Cl. 607, 611 (2001). 

In order to establish “good cause,” a party must show “that the discovery request is 

considered likely to oppress an adversary or might otherwise impose an undue burden.” 

Sparton Corp. v. United States, 44 Fed. Cl. 557, 561 (1999). “The movant must make a

‘particularized factual showing’ that it will suffer harm if the Court does not issue a 

protective order.” Iris Corp. Berhad v. United States, 84 Fed. Cl. 489, 492 (2008) 

(quoting AG-Innovations, Inc. v. United States, 82 Fed. Cl. 69, 78 (2008)). 

To show an undue burden under Rule 26(c), courts have said that the movant 

“must show a clearly defined and serious injury.” Millsaps v. Aluminum Co. of Am., 

No. 10-84924, 2012 WL 203458, at *2 (E.D. Pa. Jan. 24, 2012) (quoting City of St. 

Petersburg v. Total Containment, Inc., No. 07-191, 2008 WL 1995298, at *2 (E.D. Pa. 

May 5, 2008)); U.S. Commodity Futures Trading Comm’n v. Whitney, 441 F. Supp. 2d 

61, 70 (D.D.C. 2006) (“[U]ndue burden exists if [the movant] demonstrates that it will 

suffer ‘clearly defined and serious injury’ if the discovery were permitted without a 

protective order.” (quoting McKesson HBOC, Inc. v. Islamic Republic of Iran, 226 

F.R.D. 56, 57 (D.D.C. 2004)). 

Ultimately, whether to issue a protective order is “committed to the discretion of 

the trial court.” Florsheim Shoe Co., Div. of Interco, Inc. v. United States, 744 F.2d 787, 

797 (Fed. Cir. 1984). 

III. Discussion 

As the movant, plaintiffs have the burden to show that producing a Cedar Gardens 

witness to respond to topic numbers 1-13 in defendant’ Rule 30(b)(6) deposition would 

be an undue burden. See RCFC 26(c)(1). 

Plaintiffs object to producing a Rule 30(b)(6) witness on topic numbers 1-13 for 

three reasons. “[T]he issue is whether the additional discovery the Government seeks is 

objectionable, given Mr. Bancroft’s advanced age, the fact that he was previously 

deposed for two days to preserve his testimony, and Plaintiffs’ offer to stipulate that his 

prior testimony is binding on the partnership entity.” Pls.’ Mot. 4. Plaintiffs argue this 

discovery is “unduly burdensome” because “the majority of the topics identified in

the present notice are duplicative and cumulative” of Mr. Bancroft’s August 2013 

deposition. Id. at 1. Plaintiffs have never disputed that the discovery is relevant.

Defendant does not dispute plaintiffs’ characterization of topic number 1 to 13 as 

duplicative and cumulative of Mr. Bancroft’s August 2013 deposition, in fact, defendant 

acknowledges that “Mr. Bancroft testified about many of the subjects that are to be 
7

addressed in the Rule 30(b)(6) deposition.” 4 Def.’s Resp. 8. Nonetheless, defendant 

argues that its notice is neither “unduly burdensome,” nor “unreasonably cumulative,” id.

at 6-7, and that Rule 26 prohibits “only unreasonably cumulative testimony,” id. at 8. 

Plaintiffs reply that “additional testimony about topics already testified to by Mr. 

Bancroft combined with the offer to stipulate that the prior testimony would bind and be 

admissible against the [Cedar Gardens] partnership renders the testimony sought in the 

requested Rule 30(b)(6) deposition unreasonably cumulative.” Pls.’ Reply 3 n.4. 

In the court’s view, there are two parts to plaintiffs’ motion—its offer that Cedar 

Gardens be bound by Mr. Bancroft’s individual deposition testimony, and if so, whether 

defendant may question Mr. Bancroft about topic numbers 1-13 beyond those questions 

he answered during his August 2013 deposition. 

A. Cedar Gardens’ Stipulation to Be Bound by Mr. Bancroft’s August 

2013 Individual Deposition Testimony 

Plaintiffs emphasize that Mr. Bancroft is the only available Cedar Gardens 

witness. Pls.’ Mot. 5 (“Mr. Bancroft is the only surviving partner of Cedar Gardens.”). 

While defendant acknowledges this point, see Def.’s Resp. 4 n.1, it nonetheless suggests 

that plaintiffs are not obligated to name Mr. Bancroft as the Rule 30(b)(6) witness for 

Cedar Gardens. Id. at 6-7 (“Mr. Bancroft need not testify.”). As plaintiffs correctly point 

out, even were they to find another witness, that person would be obligated to educate 

himself by reviewing Mr. Bancroft’s earlier testimony, and talking to Mr. Bancroft, if he 

were available. See Pls.’ Reply 9. 

Defendant does not assert that it would be prejudiced if Cedar Gardens was bound 

by Mr. Bancroft’s individual testimony, and it offered no explanation for its refusal to 

accept plaintiffs’ offer, which they renewed in their motion. 

Defendant points out, however, that it offered Cedar Gardens a compromise. 

Defendant would withdraw topic numbers 1-13 from its Rule 30(b)(6) notice, if Cedar 

Gardens would stipulate to two facts relevant to the regulatory takings analysis under 

Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). 5

 

4 Neither deposition notice is in the record, so the court accepts the parties mutual 

position that topic numbers 1-13 of defendant’s Rule 30(b)(6) notice are duplicative of 

topics about which Mr. Bancroft was questioned during his August 2013 individual 

deposition. 

5 This was defendant’s second attempt at compromise. In its first attempt, it agreed 

to withdraw topic numbers 1-13, if Cedar Gardens would stipulate that: (1) it was 
8

[I]n the interest of compromise, we are prepared to limit the deposition [to 

the “additional property” near Cedar Gardens] if you in turn will stipulate 

that (1) the Cedar Gardens partnership does not know what benefits afforded 

by the 221(d)(3) program led the partnership to participate in the 221(d)(3) 

program in 1971, and (2) the Cedar Gardens project was sold pursuant to 

LIHPRHA at the project’s fair market value as determined by Cedar 

Garden’s appraiser. 

Def.’s Resp. 5 (citing DA29). In defendant’s view, “[t]hese propositions seemingly were 

established by Mr. Bancroft’s deposition testimony.” Id. (citing PA004, PA018). 

Plaintiffs declined. Defendant later characterized these stipulations as “more specific 

stipulations” than Mr. Bancroft’s testimony. Id. at 10. Through its offers, it is apparent 

that defendant has no objection to accepting stipulations in lieu of Rule 30(b)(6) 

testimony, as long as it specifies the stipulations. 

Thus, the court finds there is no reason not to accept plaintiffs’ offer to permit 

Cedar Gardens Associates to be bound by Mr. Bancroft’s individual deposition 

testimony. Plaintiffs have no other Cedar Gardens witness, and asking the same 

individual the same questions would be unreasonably duplicative. See RCFC 

26(b)(2)(C). 

B. Cedar Gardens Testimony on Topics 1-13 Beyond Mr. Bancroft’s August 

2013 Deposition 

Remaining is the question of whether plaintiffs are entitled to a protective order 

for topic numbers 1-13 for questions beyond those Mr. Bancroft answered during his 

August 2013 deposition. 

Plaintiffs rely on Novartis Pharmaceuticals Corp. v. Abbott Laboratories, in which 

the court declined to compel a Rule 30(b)(6) deposition, where the designated witness 

had previously been deposed on an individual basis on the same topics, and the testifying 

party offered to be bound by the witness’s earlier individual testimony. Pls.’ Mot. 9

(citing Novartis, 203 F.R.D. 159, 162-63 (D. Del. 2001)).

Defendant in turn points to several cases in which courts have refused to enter a 

protective order for a Rule 30(b)(6) deposition, despite the fact that the designated 

 

asserting no claim regarding the “additional property,” and (2) it did not know why Cedar

Gardens entered the [HUD] Section 221(d)(3) program. See Def.’s Resp. 5 (citing 

DA018-DA019). Cedar Gardens declined. Id. (citing DA023). 
9

witness had previously been deposed on an individual basis. See Def.’s Resp. 8 (citing 

N.H. Ins. Co. v. Blackjack Cove, LLC, No. 3:10-cv-00607, 2013 WL 5278667, at *2 

(M.D. Tenn. Sept. 18, 2013); La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 

285 F.R.D. 481, 487 (N.D. Cal. 2012); Kelly v. Provident Life & Accident Ins. Co., No. 

04cv807, 2011 WL 2448276, at *4 (S.D. Cal. June 20, 2011)). 

None of the parties’ cases, however, are exactly like the situation with Cedar 

Gardens. In Novartis, there is no indication that the testifying party had voluntarily 

agreed to produce its Rule 30(b)(6) witness to answer questions about new topics, as 

Cedar Gardens has. This is relevant because it pertains to the burden imposed on the 

witness. The other cases, on which defendant has relied, are also inapposite because 

none of those cases involve an offer by the testifying party to be bound by its witness’s 

earlier individual testimony, as Cedar Gardens has offered in this case. 

The court is left to consider whether the burden on Cedar Gardens is undue, 

given 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.” RCFC 26(b)(2)(C)(iii).

Defendant argues that when it deposed Mr. Bancroft, it did not know plaintiffs 

would name Cedar Gardens as a First Wave property. Def.’s Resp. 9. While the record 

supports defendant’s assertion, defendant offers no explanation as to why this matters. 

The only difference between the six First Wave plaintiffs and the remaining non-First 

Wave plaintiffs is the timing of their discovery and possible trial. Each plaintiff has the 

same Penn Central burdens of proof, regardless of whether or not it is a First Wave 

plaintiff.

Defendant further argues that when it took Mr. Bancroft’s deposition, it was 

unaware that Cedar Gardens would have no other available witnesses. Id. (“The United 

States had no inkling that Cedar Gardens would subsequently take the position that the 

Bancroft deposition should be the Government’s only opportunity for deposition 

discovery.”). Plaintiffs do not deny this, and describe defendant’s argument as a “red 

herring.” Pls.’ Reply 5. Plaintiffs add that when defendant deposed Mr. Bancroft, it 

knew it might have no other opportunity to do so, given both his advanced age and health 

issues, and therefore it should have known it had to ask all its questions at that time. Id.

at n.6.

The court finds that while plaintiffs have shown that defendant should have known 

the August 2013 deposition would be its only opportunity to question Mr. Bancroft, it has 

not shown that it put defendant on notice—prior to Mr. Bancroft’s August 2013 
10

deposition—that Cedar Gardens had no other available witness, so that the August 2013 

deposition was also defendant’s only opportunity to question Cedar Gardens.

Defendant also emphasizes its need to defend against plaintiffs’ claim on the two 

Penn Central factors. Def.’s Resp. 2, 6 n.2, 7 (“To defend this claim, the United States 

needs discovery about LIHPRHA’s economic impact on the project and the [Cedar 

Gardens] partnership’s expectations at the time it entered into the HUD program.” (citing 

Cienega Gardens v. United States (Cienega X), 503 F.3d 1266, 1288 (Fed. Cir. 2007)). 

Considering the relevant facts, the court does not find that the additional discovery 

is an undue burden. By accepting Cedar Gardens’ offer to be bound by Mr. Bancroft’s 

earlier testimony, and by limiting defendant’s questions on topic numbers 1-13, if any, to 

those beyond its earlier questions, the court has addressed plaintiffs’ concern about the 

burden of answering questions that are duplicative of Mr. Bancroft’s earlier testimony. 

Having done so, plaintiffs’ only remaining objection to answering questions on 

topic numbers 1-13 is Mr. Bancroft’s advanced age. See Pls.’ Mot. 4. Taking into 

consideration the importance of the issues at stake in this case, defendant’s need to 

defend itself on the two Penn Central factors, and the fact that Cedar Gardens is 

voluntarily producing Mr. Bancroft to answer questions about new topics, plaintiffs’ 

complaint based on Mr. Bancroft’s age is insufficient to show undue burden. 

Plaintiffs’ motion for a protective order is GRANTED-IN-PART and DENIEDIN-PART. The court enters the protective order below. 

First Wave plaintiff Cedar Gardens Associates will be bound by the August 

28, 2013 and August 29, 2013 individual deposition testimony of James R. 

Bancroft. 

Defendant will limit its examination of Cedar Gardens Associates’ Rule 

30(b)(6) witness on topic numbers 1-13, if any, to questions it did not direct 

to Mr. Bancroft during his August 28, 2013 and August 29, 2013 individual 

deposition. 
11

Plaintiffs’ motion is otherwise denied. The court informs the parties that 

defendant’s motion for protective order is under active consideration. 

 IT IS SO ORDERED.

s/ Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Chief Judge