13-cv-05479

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Clauss Constr. v. UChicago Argonne LLC

Decided Jan 13, 2015

13-cv-05479

01-13-2015

Clauss Construction Plaintiff, v. UChicago

Argonne LLC et al Defendant.

Jeffrey T. Gilbert Magistrate Judge

ORDER Defendant's Motion for a Protective

Order Concerning Gauss's Rule 30(b)(6) Topics

[67] as supplemented by Defendant's

Supplemental Motion for a Protective Order [70]

is granted in part and denied in part. This case is

set for a status hearing on 1/28/15 at 9:30 a.m. for

the purpose of resetting a discovery close date.

See Statement below for details.

STATEMENT

On October 27, 2014, Defendant UChicago

Argonne, LLC ("Argonne") filed a Motion for a

Protective Order [ECF 67] concerning a draft

notice for a Rule 30(b)(6) deposition tendered by

Plaintiff Clauss Construction ("Clauss") on

September 25, 2014. [ECF 67 at 1] Moving for a

protective order against a draft Rule 30(b)(6)

deposition notice is, of course, highly irregular.

But Argonne says it was frustrated because Clauss

had not responded to its objections to Clauss's

draft notice and the proposed date for the

deposition was fast approaching. [ECF 67 at 2]

1

1 By reciting the procedural history of the

instant Motion, the Court in no way means

to condone Argonne's filing of its original

Motion for a Protective Order [67]

challenging a draft deposition notice. The

Court wonders whether a phone call, email or letter perhaps would have been

sufficient to alert Clauss's counsel to the

frustrations of Argonne's counsel, but that

is water under the bridge at this point.

Although the Court understands that a

party acts at its peril if it does not move for

a protective order to prevent a noticed

deposition from occurring, it wonders

whether the same is true when a party

receives a draft notice of deposition.

Perhaps a draft motion for a protective

order would have been appropriate in that

instance. But we digress.

In response to Argonne's premature motion for

protective order, Clauss served a revised Rule

30(b)(6) notice on October 28, 2014, one day after

Argonne had filed its original motion [ECF 70-1]

Argonne then filed a supplemental motion for

protective order attacking Clauss's revised Rule

30(b)(6) deposition topics as being essentially no

different than the original, *2 objectionable topics.

[ECF 70] As it happens, Clauss actually did some

work on the topics in response to Argonne's

objections served back in September. The Court

set a briefing schedule on Argonne's original

motion on October 31, 2014 [ECF 69], and it

ordered the parties to brief the supplemental

motion on the same schedule [ECF 72].

2

To the extent the Court stated in its order entered

on October 31, 2014, that the supplemental motion

was granted [id.], that was an error; the Court

simply meant to indicate that it was accepting the

supplemental motion in place of the original

motion and to order the parties to brief that motion

rather than the initial motion. Since both parties

now have briefed the propriety of Clauss's revised

Rule 30(b)(6) deposition topics, the Court deals

1
with those topics below as if they were raised in

the original motion which is the only motion that

still is open on the CM/ECF system.

A.

The standards by which federal courts evaluate a

Rule 30(b)(6) notice are settled and need not be

repeated here. E.E.O.C v. Source One, Inc., 2013

WL 225033 (N.D. Ill. 2013); Smithkline Beecham

Corp. v. Apotex Corp., 2000 WL 116082, *9 (N.D.

Ill. 2000). Argonne maintains that all of Clauss's

Rule 30(b)(6) topics are, in various measures,

vague, overbroad, not particularized and impose

upon Argonne an undue burden in terms of

preparing its Rule 30(b)(6) witness to testify about

them. Argonne also contends that several of the

Rule 30(b)(6) topics infringe upon the attorney

client privilege or work product doctrine by

requiring Argonne's representative to testify about

protected matters.

Clauss responds that it has calibrated its revised

Rule 30(b)(6) topics to the matters raised in its

complaint and in Argonne's answer, affirmative

defenses and counterclaim so that the revised

topics now are perfectly appropriate for Rule

30(b)(6) testimony. It also argues that its

deposition topics do not call for a witness to

testify about attorney client privileged

communications or attorney work product (they

ask for facts) and if its lawyer's questions at the

deposition do ask for protected matters, Argonne's

counsel properly can object and instruct the

witness not to answer.

B.

The Court has gone through each of Clauss's

revised Rule 30(b)(6) topics and the parties'

respective arguments about them carefully. It also

has reviewed the complaint, answer, affirmative

defenses and counterclaim. The result of that

analysis on Clauss's ability to question Argonne's

Rule 30(b)(6) witness about particular matters

listed in Clauss's revised Rule 30(b)(6) notice is

set forth below.

Topics 1 and 2. Both topics are keyed to Clauss's

complaint or affirmative matter referenced in

Argonne"s answer to the complaint. The fact that

prior studies of decontamination and

decommission work at the Argonne site comprise

400 pages of material spanning a 20 year period of

time is not, in itself, a problem. (The case Argonne

cites for its undue burden proposition, Michelin

Prosperity Co. v. Fellowes Mfg. Co., 2006 WL

1441575 (D.D.C. 2006), involved five times that

amount of material.) Clauss apparently wants to

know what effect the *3 prior studies had on

Argonne's planning for the project that is at issue

in this case particularly in terms of the quantum of

contamination at the site. Argonne can prepare

someone to testify on that topic and any others

germane to the case. The Court agrees it would be

unreasonable for Argonne to have to prepare a

witness to testify about all of the minutiae

contained in all of the prior studies, but Clauss

does not seem to be headed in that direction.

Instead, Clauss represents that it wants to question

an Argonne witness "about the averments it made

in its own pleading so Clauss can learn about

[Argonne's] asserted defense ["that it had

disclosed the extent of the Project site's

radioactive contamination to Clauss before it

submitted its bid"]." [ECF 88 at 4] That is an

appropriate inquiry and Argonne can prepare a

witness on that subject.

3

Topic 3. This topic is vague, ambiguous and not

specific enough to allow Argonne to prepare a

witness to testify about it adequately. It also

appears that other topics in the revised Rule 30(b)

(6) notice more narrowly address the possible

issues included within this topic. Argonne need

not prepare a witness to testify about this topic.

Topic 4. This is an appropriate topic for a Rule

30(b)(6) deposition. The FONSI indicated there

was approximately 2,000 cubic feet of

contaminated soil that would have to be removed

from the Argonne site. That was the basis upon

which Clauss bid the project. Clauss says it wants

to know "about the effect of the FONSI on UC

2

Clauss Constr. v. UChicago Argonne LLC 13-cv-05479 (N.D. Ill. Jan. 13, 2015)
Argonne's planning for the project." [ECF 88 at 5]

Clauss alleges that the FONSI was prepared

without full consideration of more extensive

contamination present at the site. [ECF 5 at ¶¶ 10 -

11 ] Clauss further alleges that Argonne misled it

concerning the amount of contamination at the

site. [Id. at ¶¶ 12, 61] Even though Clauss has

admitted that it does not know how many cubic

feet of contaminated soil it removed from the site

[ECF 67 at 4], and Clauss did not process a

change order indicating it needed to remove more

than the 2,000 cubic feet referenced in the

contract, Clauss still is entitled to probe what

Argonne knew about the extent of contamination

at the site when it put the contract out for bid, the

effect the FONSI had on Argonne's planning for

the project and the effect it had on the

specifications for the project that Clauss ultimately

bid.

Topic 5. This also is an appropriate topic for a

Rule 30(b)(6) deposition. It is directly related to

Clauss's theory of its case as to why Argonne

allegedly provided it with defective specifications

for the project or allegedly misled Clauss about

the extent of the contamination present at the site.

Argonne disagrees with Clauss's theory and thinks

Clauss cannot prevail on that theory at trial, but

that does not mean Clauss is not entitled to pursue

discovery on its theory at this stage of the case.

Topics 6, 7 and 8 . Topics 6 and 8 are appropriate

for a Rule 30(b)(6) deposition. They reference

information that is closely tied to Clauss's

allegations in its complaint. Topic 7 ("all your prebid assumptions concerning performance of the

decontamination and demolition work on the

Project") is overbroad. As drafted, it potentially

encompasses matters that are beyond the confines

of Clauss's claims. If Clauss wants to break that

topic down into the specific assumptions that are

relevant to this case, as it did with Topic 6 ("the

assumptions, conditions, and bases for your

specification of 2,000 cubic feet of contaminated

soil. . ."), it is free to do so. As drafted, however,

Topic 7 is too broad and non-specific to permit

4 Argonne to prepare a witness properly. *4

Topic 9. This topic seems to be untethered to the

issues involved in this lawsuit. Argonne's

interaction with the DOE regarding the four listed

sub-topics seems irrelevant and Clauss's onesentence defense of these topics in its response

brief does nothing to shed light on why the topics

are relevant. Accordingly, Argonne need not

prepare a witness to testify about this topic absent

more specificity from Clauss.

Topic 10. Argonne complains that this topic

includes months of communications and hundreds

of emails. [ECF 91 at 9] That is not, by itself, a

reason that Argonne should be excused from

preparing a corporate representative to talk about

the subject. Rather, it is precisely the point of a

Rule 30(b)(6) deposition. Clauss maintains that

the parties' dispute includes which party was

responsible for setting the DCGL levels, the root

of this topic 10. [ECF 88 at 6] Argonne says that is

wrong; Clauss's witness Mr. O'Dwyer said the

DCGLs were within Clauss's scope. [ECF 91 at

10] Clauss also says Argonne questioned Clauss's

Rule 30(b)(6) representative about the very same

topic, but Argonne retorts that it only questioned

Clauss's representative about Clauss's pre-bid

investigation regarding the DCGL process and

Clauss's cost estimate in that regard, not anything

that Argonne did in that regard (which, of course,

makes sense since Argonne was questioning a

Clauss witness). [ECF 88 at 6; ECF 91 at 9-10]

This is an appropriate topic for a Rule 30(b)(6)

deposition. If Argonne was not involved in setting

the DCGL levels and it did not know about

Clauss's work in that regard, then Argonne's

witness will have little to say about this topic. If

Argonne has knowledge about this topic, then it is

discoverable.

Topic 11. This is an appropriate Rule 30(b)(6)

deposition topic. Argonne's objection to this topic

basically sets forth its litigation position on the

3

Clauss Constr. v. UChicago Argonne LLC 13-cv-05479 (N.D. Ill. Jan. 13, 2015)
issue. Clauss is entitled to explore this subject in

discovery.

Topics 12, 13 and 14. These are perfectly

appropriate topics for a Rule 30(b)(6) deposition.

They track issues raised by the pleadings. An

Argonne representative can be prepared

concerning the entity's knowledge or lack of

knowledge about these subjects.

Topic 15. Argonne objects to this topic, which

seeks the entity's knowledge about any contention

it is making that Clauss is responsible for "delays

to the Project critical path," on the ground that

Clauss has not made a claim for critical path delay.

[ECF 91 at 12] Clauss does not respond directly to

that objection. Instead, it says it is entitled to

explore Argonne's contention that any delays were

Clauss's fault, not Argonne's. [ECF 88 at 7] To the

extent that a "critical path delay" is a term of art,

then the Court agrees with Argonne that this topic

concerns an issue that is not relevant to a claim or

defense in this case. To the extent Clauss wants to

explore the subject it described in its response to

Argonne's objection, however, it should formulate

a Rule 30(b)(6) topic on that subject. Argonne

need not prepare a witness to testify about this

topic as phrased.

Topic 16. This topic is largely argumentative ("

[d]ecisions to . . . interfere with Clauss

Construction's planned activities for performance

of work as described in paragraph 17 of the

Complaint") and, for that reason, is counterproductive. Argonne need not prepare a witness to

testify about Clauss's characterization of

Argonne's activities as interference with Clauss's

work. The one aspect of this topic that is factual

and not objectionable as argumentative is "

[d]ecisions *5 to stop work." Argonne says that

Clauss is not seeking any damages related to the

only "stop work" order on the project, citing

Clauss's Rule 26 disclosure [ECF 91-13].

Although Clauss apparently is not seeking from

Argonne the $30,000 it incurred as a result of

Argonne's stop work order, Clauss says in its Rule

26 disclosure that it "continues to maintain that its

demolition procedure, crane rigging and safety

protections were unobjectionable and should not

have been the target of a stop work order and an

ejection from the site of key Plaintiff personnel."

[Id. at 9] Whether or not evidence concerning the

stop work order ends up being admitted at trial, it

is a subject about which Clauss can take discovery

given the broader net Rule 26(b)(1) allows for

discovery than the Federal Rules of Evidence

countenance for the admission of evidence at trial.

5

Topic 17. This is an appropriate topic for a Rule

30(b)(6) deposition. Clauss's theory in this regard

is laid out in paragraphs 36 through 38 of its

complaint. Argonne contends that Clauss left 1.6

million pounds of contaminated rubble and debris

at the site and lied about whether it had removed

that material. The contaminated rubble and debris

Clauss allegedly left at the site, according to

Argonne, led to elevated contamination readings

which dropped once the material was removed

after months of fighting about it. Clauss disagrees

with Argonne's take on the situation as alleged, in

part, in paragraphs 36 through 38 of its complaint.

Topic 17 focuses on Argonne's interactions with a

consultant hired to conduct a confirmatory site

survey concerning contamination. Argonne may

disagree with Clauss's theory but that doesn't

mean Clauss is not entitled to take discovery

related to that theory.

Topics 18 and 19. These are appropriate topics for

a Rule 30(b)(6) deposition. Argonne's objections

to Topics 18 and 19 make no sense, at least as the

Court understands the issues. Argonne's views

about Clauss's final report for the project are

relevant and discoverable. That Clauss is "not

seeking any damages related to the issuance of

Clauss' final report" [ECF 91 at 14] is not a reason

to object to discovery concerning Argonne's views

of Clauss's final report in a case involving a

dispute about Clauss's performance of work for

Argonne. Neither is the fact that Clauss

supposedly was given Argonne's views about its

final report during the project. Similarly, the fact

4

Clauss Constr. v. UChicago Argonne LLC 13-cv-05479 (N.D. Ill. Jan. 13, 2015)
that Clauss already has received Argonne's written

responses to Clauss's Request for Equitable

Adjustment does not render that subject off-limits

in a Rule 30(b)(6) deposition.

Topic 20. This topic seems to be duplicative of

Topic 19 to some extent and is vague to the extent

it references undefined "follow-on submissions."

Argonne does not have to prepare a witness on

this topic without further specification from

Clauss.

Topics 21 and 22. These topics ask Argonne to

designate a Rule 30(b)(6) witness to testify about

the "factual bases underpinning" Argonne's

affirmative defenses and counterclaim. Argonne

objects that these topics invade the attorney-client

and/or work product privileges. There is a

difference of opinion among courts as to whether a

Rule 30(b)(6) topic that asks an entity to designate

a witness to testify about facts underlying legal

claims or defenses is appropriate. The issue

usually comes down to whether contention

interrogatories are a better discovery vehicle for

that kind of information than a Rule 30(b)(6)

deposition. Compare TV Interactive Data Corp. v.

Sony Corp., 2012 WL 1413368 (N.D. Cal. 2012)

(contention interrogatories more appropriate

discovery vehicle in a patent case) with Radian

Asset Assurance, Inc. v. College of Christian Bros,

of New Mexico, 273 F.R.D. 689 (D. N.M. 2011) *6

(Rule 30(b)(6) deposition concerning factual basis

for affirmative defenses and counterclaim can go

forward subject to appropriate objections at the

deposition as to particular questions). See also

E.E.O.C v. Source One, Inc., 2013 WL 225033,

*6-8 (N.D. Ill. 2013) (Rule 30(b)(6) deposition

concerning all information that "supports or

rebuts" allegations in complaint deferred until

after plaintiff supplements its interrogatory

responses).

6

At this stage of this case, with written discovery

concluded and all fact discovery completed except

for the Rule 30(b)(6) deposition under present

consideration, and given the parties' profound

inability to get along during the discovery process

as well as Argonne's excessive word-smithing

opposition to Clauss's Rule 30(b)(6) notice, a

round of contention interrogatories directed at the

factual underpinnings for Argonne's affirmative

defenses and counterclaim would not be the most

productive Way to proceed at this juncture.

Clauss's Rule 30(b)(6) notice references "facts"

supporting Argonne's affirmative defenses and

counterclaim, not legal theories. The Court

recognizes that a catalogue of all facts that support

a legal theory can involve attorney work product

to some extent. But a corporate representative can

be prepared to testify about facts within the

corporation's knowledge. To the extent that

questioning moves into matters protected by the

attorney-client privilege or work product doctrine,

Argonne's counsel can object and even instruct the

witness not to answer though the Court hopes that

option will be exercised sparingly, if at all, during

the deposition.

That said, Argonne's "mend the hold" Affirmative

Defense F is a purely legal defense. It does not

appear to be a defense that has "factual

underpinnings" about which Argonne should have

to prepare a corporate witness. Rather, the factual

basis for that legal defense is laid out clearly in

paragraphs 17 to 20 of Argonne's Affirmative

Defense F. No more is required of a Rule 30(b)(6)

deponent on that subject.

Topic 23. Argonne does not object to this topic.

C.

Finally, Argonne's request for attorneys' fees and

costs incurred in filing its motion for a protective

order is denied. The motion was denied in more

respects than it was granted, and Argonne made

more work for itself than was necessary in

opposing many of Clauss's revised deposition

topics. Clauss did not seek its attorneys' fees

incurred in responding to Argonne's motion.

The Court will reset a discovery close date at the

status hearing set for January 28, 2015, at 9:30

a.m.

5

Clauss Constr. v. UChicago Argonne LLC 13-cv-05479 (N.D. Ill. Jan. 13, 2015)
It is so ordered. Dated: January 13, 2015

/s/_________

Jeffrey T. Gilbert

United States Magistrate Judge

6

Clauss Constr. v. UChicago Argonne LLC 13-cv-05479 (N.D. Ill. Jan. 13, 2015)
Civil Action No.: 1:20-cv-00845-RM-SKC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Preitauer v. Am. Family Mut. Ins. Co.

Decided Dec 29, 2020

Civil Action No.: 1:20-cv-00845-RM-SKC

12-29-2020

TYLER PREITAUER, Plaintiff, v. AMERICAN

FAMILY MUTUAL INSURANCE COMPANY,

S.I., Defendant.

U.S. Magistrate Judge S. Kato Crews

FIRST WRITTEN DISCOVERY ORDER

This Discovery Order addresses the Parties'

dispute over three topics from Plaintiff's Rule

30(b)(6) Deposition Notice. Counsel for the

Parties contacted chambers (consistent with the

Court's civil case practice standards) to alert the

Court to their discovery dispute. They

subsequently filed simultaneous briefs on the

issues, as the Court requested. [#40 and #41.] The

Court now issues this order to resolve the

discovery dispute, as indicated below.

PRINCIPLES

"A deposition under Rule 30(b)(6) differs in

significant respects from the normal deposition.

To begin with, the notice of deposition must

'describe with reasonable particularity the matters

for examination.'" 8A C. Wright, A. Miller, & R.

Marcus, Federal Practice & Procedure § 2103 (3d

ed. 2010). This requirement seeks "to enable the

responding organization to identify the person

who is best situated to *2 answer questions about

the matter, or to make sure that the person selected

to testify is able to respond regarding that matter."

Id. Accordingly, Rule 30(b)(6) creates obligations

on both sides: the side being deposed has an

obligation to prepare one or more witnesses to

testify, and the side taking the deposition has an

obligation to "designate with painstaking

specificity, the particular subject areas that are

intended to be questioned, and that are relevant to

the issues in dispute." E.E.O.C. v. Thorman &

Wright Corp., 243 F.R.D. 421, 426 (D. Kan.

2007).

2

"An overbroad Rule 30(b)(6) notice subjects the

noticed party to an impossible task. To avoid

liability, the noticed party must designate persons

knowledgeable in the areas of inquiry listed in the

notice." Reed v. Bennett, 193 F.R.D. 689, 692 (D.

Kan. 2000). Where the deponent "cannot identify

the outer limits of the areas of inquiry noticed,

compliant designation is not feasible." Id. For

example, when identified topics-of-inquiry for a

Rule 30(b)(6) deposition use the term "all," courts

have noted that Rule 30(b)(6) depositions are not

intended to be "memory tests" in which a

deponent is asked to recall every single detail

related to a topic. Gebremedhin v. Am. Family

Mut. Ins. Co., No. 113- cv-02813, 2015 WL

4272716, at *10 n.6 (D. Colo. July 15, 2015); see

also Reed, 193 F.R.D. at 692 ("Although plaintiff

has specifically listed the areas of inquiry for

which a 30(b)(6) designation is sought...Plaintiff

broadens the scope of the designated topics by

indicating that the areas of inquiry will 'includ[e],

but not [be] limited to' the areas specifically

enumerated.").

For these reasons, a measure of specificity tailored

to the facts of the case is required when crafting

the topics for a Rule 30(b)(6) deposition. See

Thorman & *3 Wright Corp, 243 F.R.D. at 426

(Rule 30(b)(6) topics must "designate with

3

1
painstaking specificity, the particular subject areas

that are intended to be questioned, and that are

relevant to the issues in dispute."); Lapenna v.

Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986)

(disallowing questions where it was apparent there

had been no attempt to tailor them to the facts

involved in the case).

The proper scope of a Rule 30(b)(6) deposition is

further limited by the proportional needs of the

case. Fed. R. Civ. P. 26(b)(1). Indeed, Rule 26(b)

(2)(C) allows a court to limit discovery on motion

or on its own if it determines: (1) the discovery

sought is unreasonably cumulative or duplicative,

or may be obtained from some other source that is

more convenient, less burdensome, or less

expensive; (2) the party seeking discovery has had

ample opportunity to obtain the information by

discovery in the action; or (3) the proposed

discovery is outside the scope permitted by Rule

26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).

ANALYSIS

Defendant objects to three topics—Topics 12, 15,

and 33.

Topic 12: The Court agrees with Plaintiff that this

topic has some relevance to Defendant's

affirmative defense of non-cooperation. See Fed.

R. Civ. P. 26(b)(1) ("Parties may obtain discovery

regarding any nonprivileged matter that is relevant

to any party's claim or defense and proportional to

the needs of the case . . ..") But crafted as a Rule

30(b)(6) topic, Topic 12 lacks the requisite

specificity. The Court will allow this topic but

limited to records Defendant obtained from the

releases that were *4 not previously provided to

Defendant by Plaintiff and which Defendant

intends to rely upon in support of its noncooperation affirmative defense.

4

Topic 15: The Court sustains Defendant's

objections to this topic. Topic 15 is overbroad and

vague. It is not limited to specific types of

training, seminars, or training bulletins, and in that

sense, potentially encompasses a wide swath of

irrelevant information. Even the attempted

limiting language of "substantially relied upon in

adjusting" the claim, does not save Topic 15 from

its defects. It lacks the requisite specificity

required by Rule 30(b)(6) and is disallowed.

Topic 33: This topic is also too broad. It

encompasses, "any representative at AmFam who

in any way participated in the handling, adjusting

assessing, or evaluation" of Plaintiff's claims for

UM and UIM benefits, no matter how little their

involvement may have been. It also is not tailored

to disciplinary or corrective actions involving

conduct relevant to the claims or defenses in this

case, but rather, it encompasses discipline or

corrective action issued for any reason. This topic

is disallowed.

* * *

5 *5

For these reasons it is ORDERED that Defendant

prepare and provide a Rule 30(b)(6) designee(s) to

provide testimony on Topic 12 as modified above.

FURTHER ORDERED that Topics 15 and 33 are

disallowed. DATED: December 29, 2020

1

1 The Court understands from its staff (after

a call they received from counsel) that the

disputes and arguments raised herein also

pertain to corresponding Requests for

Production of Documents issued by

Plaintiff under Fed. R. Civ. P. 34, and that

the parties have asked the Court to address

those as well. The Court's rulings herein

concerning Topics 15 and 33 apply to the

corresponding RFPs. However, the Court

finds an RFP that corresponds to the

language of Topic 12 to be relevant and

proportional. The Court notes Defendant's

argument that this information is equally

available to Plaintiff; but that places the

burden on Plaintiff to determine and

demonstrate what he failed to provide to

Defendant, if anything. Asking Defendant

to produce or identify what it received

from third parties that it contends it never

received from Plaintiff is a reasonable

request that satisfies Fed. R. Civ. P. 26,

2

Preitauer v. Am. Family Mut. Ins. Co. Civil Action No.: 1:20-cv-00845-RM...
especially considering Defendant's noncooperation affirmative defense. Finally,

Defendant's brief references a possible

issue regarding RFP 3 that the parties had

not conferred over, and which Plaintiff did

not address in his brief. Thus, the Court

does not address RFP 3 currently. --------

BY THE COURT:

/s/_________

S. Kato Crews

U.S. Magistrate Judge

3

Preitauer v. Am. Family Mut. Ins. Co. Civil Action No.: 1:20-cv-00845-RM...
Case No. 18 CV 50286

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS WESTERN DIVISION

Schyvincht v. Menard, Inc.

Decided Jul 10, 2019

Case No. 18 CV 50286

07-10-2019

Bret Schyvincht, Plaintiff, v. Menard, Inc., d/b/a

Menards, Defendant.

Magistrate Judge Lisa A. Jensen

*2

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's motion for

protective order [52]. Defendant requests that this

Court enter a protective order striking Topics A,

B, C, D, E, and F in Exhibit A of Plaintiff's Notice

of Rule 30(b)(6) Deposition and limiting Topics

G, H, and I to rules, polices, procedures, and

efforts of Defendant generally. Dkt. 52 at 6. For

the following reasons, Defendant's motion for

protective order [52] is granted in part and denied

in part. Defendant's motion is granted in part with

respect to Topics C and D and is denied as to the

remainder of the Topics.

I. BACKGROUND

This case stems from an incident on August 14,

2016 at the Menards Sycamore Store where

Plaintiff was struck in the head by a piece of

lumber. Dkt. 1 Ex. A. The case originated in the

Circuit Court of the 23rd Judicial Circuit, DeKalb

County, Illinois and was removed to this Court on

August 30, 2018. Dkt. 1. On March 15, 2019,

Plaintiff served a Notice of Video Deposition(s)

Pursuant to Rule 30(b)(6). Dkt. 46. The Notice

asked Defendant to identify and produce a witness

or witnesses to provide testimony on the following

topics:

A. MENARDS's knowledge as to any facts

of the 8/14/16 Incident.

B. MENARDS's investigation into the

facts, cause, and injuries incurred by

Plaintiff in the 8/14/16 Incident.

C. MENARDS's position or opinion that

Plaintiff was not exercising due care for

his own safety at the time of the 8/14/16

Incident.

D. MENARDS's position or opinion that

someone other than Gerardo Ibarra was

responsible for Plaintiff's injuries incurred

as a result of the 8/14/16 Incident.

E. All training provided to Gerardo Ibarra

with regard to safe handling of lumber at

the Sycamore Store.

F. Gerardo Ibarra's duties and

responsibilities on August 14, 2016 with

respect to the safe handling of lumber.

G. All rules, policies or procedures in

effect at the Sycamore Store on August 14,

2016 intended to protect consumer

members of the public from being struck

by lumber.

2

H. All rules, policies or procedures in

effect at the Sycamore Store on August 14,

2016, which MENARDS employees were

required to follow and which were

intended to protect employees or consumer

members of the public against personal

injury.

I. All efforts of MENARDS to protect

consumers against being struck by lumber

being handled by MENARDS employees,

both before and after August 14, 2016.

1
Dkt. 52 Ex. 1.

FED. R. CIV. P. 26(b)(2)(C).

Defendant moved for entry of a protective order

on June 24, 2019. Dkt. 52. Plaintiff responded on

June 26, 2019. Dkt. 56. This Court held a motion

hearing and heard oral arguments on July 1, 2019.

Dkt. 58.

II. DISCUSSION

Federal Rule of Civil Procedure 30(b)(6)

addresses deposition discovery directed to a

corporation. It states that a deposition notice "must

describe with reasonable particularity the matters

for examination[,]" and the corporation "must then

designate one or more officers, directors, or

managing agents, or designate other persons who

consent to testify on its behalf; and it may set out

the matters on which each person designated will

testify." FED R. CIV. P. 30(b)(6). Then, the

corporation must prepare the designated person so

that he/she can "testify about information known

or reasonably available to the organization." Id.

The scope of Rule 30(b)(6) is limited by Rule 26

which permits "discovery regarding any

nonprivileged matter that is relevant to any party's

claim or defense and proportional to the needs of

the case[.]" FED. R. CIV. P. 26(b)(1). Rule 26 also

allows a court, upon a showing of good cause, to

enter a protective order to protect a party from

"annoyance, embarrassment, oppression, or undue

burden or expense[.]" FED. R. CIV. P. 26(c)(1).

Finally, Rule 26 requires that the court must limit

the frequency or extent of 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.

The party seeking the protective order must show

good cause by making a "particular and specific

demonstration of fact, as distinguished from

stereotyped and conclusory statements." EEOC v.

Source One Staf ing, Inc., No. 11 C 6754, 2013

WL 25033, at *3 (N.D. Ill. Jan. 2, 2013) (quoting

Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16

(1981)). "Rule 26(c) confers broad discretion on

the trial court to decide when a protective order is

appropriate and what degree of protection is

required." Gordon v. Countryside Nursing &

Rehab. Ctr., LLC, No. 11 C 2433, 2012 WL

3 2905607, at *2 (N.D. Ill. July 16, 2012). *3

Defendant argues that the topics designated by

Plaintiff are inappropriate for a Rule 30(b)(6)

deposition because they involve "hearsay

testimony, legal theories, and duplicative

testimony." Dkt. 52 at 2. Defendant provides more

specific arguments for groups of topics. The Court

addresses each argument in turn.

Topics C and D

Defendant argues that Topics C and D should be

stricken because they 1) call for Defendant's

"position or opinion" on its legal defenses and 2)

would infringe on protected work product.

Plaintiff argues in response that numerous courts

2

Schyvincht v. Menard, Inc. Case No. 18 CV 50286 (N.D. Ill. Jul. 10, 2019)
have ruled that a Rule 30(b)(6) notice of

deposition that seeks the "factual bases for another

party's claims or defenses is proper." Dkt. 53 at 3.

However, at oral arguments, this Court asked

Plaintiff's counsel if he was seeking strictly the

factual bases for any of Defendant's affirmative

defenses. He replied that he was seeking both the

underlying facts and Menards's opinion on the

matters set forth in the deposition notice.

Plaintiff's Notice requests a Rule 30(b)(6) witness

to address: "C. MENARDS's position or opinion

that Plaintiff was not exercising due care for his

own safety at the time of the 8/14/16 Incident."

Dkt. 52 Ex. 1. As drafted, Topic C impermissibly

seeks a legal conclusion. Questions seeking a legal

conclusion from a lay person exceed the

permissible scope of a Rule 30(b)(6) deposition.

Majestic Bldg. Maint., Inc. v. Huntington

Bancshares, Inc., No. 2:15-CV-3023, 2018 WL

3358641, at *11 (S.D. Ohio July 10, 2018); see

also Stowers v. Supreme Court of Appeals of W.

Va., No. 2:18-CV-00560, 2019 WL 2319305, at *1

(S.D. W. Va. May 29, 2019) (Proposed topics that

ask the witness to offer a legal opinion are

inappropriate inquiries for a Rule 30(b)(6)

deposition); Olsen-Ivie v. K-Mart, No. 2:17-cv00255-DB-PMW, 2018 U.S. Dist. LEXIS 24194,

at *1-2 (D. Utah Feb. 12, 2018) (Questions

intended to illicit 30(b)(6) deponent's legal

opinion or analysis of claims or defenses including

negligence, intervening cause and assumption of

risk are improper).

Plaintiff cites Canal Barge Co. v. Commonwealth

Edison Co., No. 98 C 0509, 2001 WL 817853

(N.D. Ill. July 19, 2001) for the proposition that

legal opinions are appropriate Rule 30(b)(6)

topics. The Court in Canal Barge did not set forth

the specific topics that were at issue. However, it

did summarize the topic as "inquiries into

ComEd's position that the work performed on the

barges was not maintenance[.]" Id. at *2. The

Court noted that these inquiries were "quite factspecific[.]" Id. Unlike the "fact-specific" Rule

30(b)(6) topics at issue in Canal Barge, Topic C

does not seek facts but only a legal opinion as to

whether Plaintiff was exercising "due care" for his

safety. Due care is a legal term of art, and as such

Topic C impermissibly seeks a legal opinion from

a lay witness.

Similarly, Topic D requests "MENARDS's

position or opinion that someone other than

Gerardo Ibarra was responsible for Plaintiff's

injuries incurred as a result of the 8/14/16

Incident." Dkt. 52 Ex. 1. As drafted, Topic D also

requests a legal opinion as opposed to underlying

facts. Black's Law Dictionary defines

"responsibility" as the "quality, state, or condition

of being answerable or accountable; Liability."

Responsibility, BLACK'S LAW DICTIONARY

(11th ed. 2019). "Liability," in turn, means the

"quality, state, or condition of being *4 legally

obligated or accountable; legal responsibility to

another or to society, enforceable by civil remedy

or criminal punishment." Liability, BLACK'S

LAW DICTIONARY (11th ed. 2019). Courts have

treated questions directed to a party's legal

responsibility or liability as improper. See, e.g.,

Turubchuk v. E. T. Simonds Constr. Co., No. 3:12-

CV-594-SMY-DGW, 2015 WL 5725159, at *4

(S.D. Ill. Sept. 30, 2015) (finding that various

requests to admit, as to whether the defendant

"was liable" to the plaintiff in a previous case and

the defendant's "legal responsibilities," were

improper because they were seeking legal

conclusions); Tarpof v. United States, No. 09-CV00411 DRH, 2011 WL 1205731, at *4 (S.D. Ill.

Mar. 10, 2011) (allowing questioning of a lay

witness's corporate responsibility but not legal

responsibility). The Court concludes that Topics C

and D improperly seek a legal opinion and as such

are improper Rule 30(b)(6) topics. Therefore,

Defendant's motion for protective order is granted

with respect to Topics C and D.

4

Should Plaintiff wish to determine Menards's legal

position regarding whether Plaintiff or some third

party was responsible for Plaintiff's injuries, such

inquiry is better suited as a contention

interrogatory. See, e.g., Canal Barge, 2001 WL

3

Schyvincht v. Menard, Inc. Case No. 18 CV 50286 (N.D. Ill. Jul. 10, 2019)
817853, at *6 (Whether a Rule 30(b)(6) deposition

or a Rule 33(c) contention interrogatory is more

appropriate will be a case by case factual

determination.); see also Source One Staf ing,

2013 WL 25033, at *7; SmithKline Beecham

Corp. v. Apotex Corp., No. 98 C 3952, 2000 WL

116082, at *9-10 (N.D. Ill. Jan. 24, 2000). This is

especially appropriate in this case where no clear

affirmative defense has been plead.

Topics A and B

Defendant argues that Topics A and B should be

stricken because a corporate representative would

lack personal knowledge of the incident and thus

his/her testimony would amount to hearsay. This

objection misunderstands the purpose of Rule

30(b)(6). Rule 30(b)(6) states that "persons

designated must testify about information known

or reasonably available to the organization." FED

R. CIV. P. 30(b)(6) (emphasis added). Thus, Rule

30(b)(6) does not require that the deponent have

personal knowledge of the matters to which he/she

testifies; this is true because a Rule 30(b)(6)

deponent presents the knowledge, opinions or

positions of the corporation, not the deponent.

Canal Barge, 2001 WL 817853, at *1. If the

deponent lacks personal knowledge, the

corporation must educate the deponent so that

he/she can testify knowledgeably about matters

within the organization's corporate knowledge.

Preparing the deponent includes providing him/her

with documents, present or past employees, or

other sources of information to review. See, e.g.,

Indus. Eng'g & Dev. v. Static Control

Components, Inc., No. 8:12-cv-691-T-24-MAP,

2014 U.S. Dist. LEXIS 141823, at *7-8 (M.D. Fla.

Oct. 6, 2014).

Defendant relies on Sara Lee Corp. v. Kraft Foods

Inc., 276 F.R.D. 500 (N.D. Ill. 2011) for the

proposition that requiring a Rule 30(b)(6)

deponent to testify on matters outside his personal

knowledge would amount to impermissible

hearsay. This argument is without merit. The

Court in Sara Lee Corp. was asked to decide

whether and to what extent a 30(b)(6) deposition

could be read in as testimony at trial. It did not

rule that hearsay was a valid objection to the

taking of a Rule 30(b)(6) deposition. Certainly, it

is not. Hearsay is generally *5 discoverable under

Federal Rules of Civil Procedure. FED. R. CIV. P.

26(b)(1) ("Information within this scope of

discovery need not be admissible in evidence to be

discoverable."). Therefore, the Court rejects

Defendant's argument that Topics A and B should

be stricken because a corporate representative

would lack personal knowledge of the incident

and thus would make his/her testimony hearsay.

1

5

1 Moreover, the Court in Sara Lee Corp.

explicitly stated that a Rule 30(b)(6)

witness may testify not only to matters

within his personal knowledge but also to

matters known or reasonably available to

the organization. Id. (internal citations

omitted); see also Univ. Healthsystem

Consortium v. UnitedHealth Grp., Inc., 68

F.Supp.3d 917, 921 (N.D. Ill. Sept. 19,

2014) ("a Rule 30(b)(6) witness may testify

both in a deposition and at trial to matters

as to which she lacks personal knowledge,

notwithstanding the requirements of

Federal Rule of Evidence 602.").

Topics E-I

Defendant requests that Topics E and F be stricken

and Topics G, H, and I be limited to the rules,

policies, procedures, and efforts of Menards

generally. Defendant argues that a corporate

representative would have no personal knowledge

of how Menards' rules, policies, and procedures

were carried out in the Sycamore store or what

training was provided to a particular employee. As

set forth above, a corporate representative does not

have to have personal knowledge but must testify

to "information known or reasonably available to

the organization." FED R. CIV. P. 30(b)(6). The

Court finds that Defendant has not shown good

cause for a protective order to strike Topics E and

F or to limit Topics G, H, and I.

2

4

Schyvincht v. Menard, Inc. Case No. 18 CV 50286 (N.D. Ill. Jul. 10, 2019)
2 In its motion, Defendant also cites to FED

R. CIV. P. 30(d)(3)(B). Rule 30(d)(3) states

that "[a]t any time during a deposition, the

deponent or a party may move to terminate

or limit it on the ground that it is being

conducted in bad faith or in a manner that

unreasonably annoys, embarrasses, or

oppresses the deponent or party." FED R.

CIV. P. 30(d)(3)(A) (emphasis added).

Because Defendant's motion for entry of

protective order was not filed during a

deposition, Rule 30(d)(3) does not apply. --

------

General Burdensome Objection

Finally, Defendant broadly argues that the Court

should limit the scope of the Rule 30(b)(6)

deposition because topics A, B, E, F, G, H, and I

are unreasonably cumulative and duplicative, and

obtainable from individual depositions that are

more convenient and less burdensome. "[T]he

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[.]" FED. R. CIV. P. 26(b)(2)(C). It is

cautioned, however, that "[b]efore restricting

discovery, the court should consider the totality of

the circumstances, weighing the value of the

material sought against the burden of providing it,

and taking into account society's interest in

furthering the truth-seeking function in the

particular case before the court." Patterson v.

Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.

2002) (internal quotation marks and citations

omitted).

After reviewing the totality of the circumstances,

the Court declines to limit the scope of the Rule

30(b)(6) deposition for these topics. In its motion,

Defendant solely relies on the conclusory

statement that "those same topics will be discussed

with Ibarra and Paulson in their depositions[.]"

Dkt. 52 at 5. However, the testimony of a witness

noticed as an individual does not bind an entity as

a Rule 30(b)(6) witness does. "Thus, the fact that

individually named witnesses have testified

concerning a subject is generally no obstacle to a

30(b)6) deposition on the same subject." Sabre v.

First Dominion Capital, LLC, No. 01 CIV. 2145

(BSJ)(H., 2002 WL *6 31556379, at *2 (S.D.N.Y.

Nov. 15, 2002); see also Smith v. General Mills,

Inc., No. C2 04-705, 2006 U.S. Dist. LEXIS

19093, at *15-18 (S.D. Ohio Apr. 13, 2006)

(collecting cases). Further, Plaintiff's counsel

stated at the motion hearing that taking one Rule

30(b)(6) deposition could decrease the overall

number of depositions Plaintiff would seek to

take, making the litigation less burdensome and

less expensive. Defendant, on the other hand, did

not identify any burdens to outweigh the value of

the Rule 30(b)(6) deposition sought. Therefore, in

considering the totality of the circumstances, the

Court declines to limit Topics A, B, E, F, G, H,

and I of the Rule 30(b)(6) deposition.

6

III. CONCLUSION

For the foregoing reasons, Defendant's motion for

entry of protective order [52] is granted in part and

denied in part. Defendant's motion is granted with

respect to Topics C and D and denied in all

remaining respects. Date: July 10, 2019

By: /s/_________

Lisa A. Jensen

United States Magistrate Judge

5

Schyvincht v. Menard, Inc. Case No. 18 CV 50286 (N.D. Ill. Jul. 10, 2019)
6

Schyvincht v. Menard, Inc. Case No. 18 CV 50286 (N.D. Ill. Jul. 10, 2019)
1:15-cv-00211 (LGS) (SDA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto Grp., Inc.

Decided Jan 30, 2018

1:15-cv-00211 (LGS) (SDA)

01-30-2018

Syntel Sterling Best Shores Mauritius Limited et

al., Plaintiffs, v. The Trizetto Group, Inc. et al.,

Defendants.

STEWART D. AARON, United States Magistrate

Judge

OPINION AND ORDER STEWART D.

AARON, United States Magistrate Judge :

Before the Court are three discovery motions: (1)

a motion by Defendants/Counterclaim Plaintiffs,

The TriZetto Group ("TriZetto") and Cognizant

Technology Solutions Corp. ("Cognizant," and,

collectively, "Defendants"), compelling

Plaintiff/Counterclaim Defendants, Syntel Best

Shores Mauritius Limited and Syntel, Inc.

(collectively, "Syntel") to provide a Rule 30(b)(6)

witness or witnesses as to certain topics; (2)

Plaintiffs' motion to compel electronic production

concerning source code, damages information and

information about confidential safeguards; and

(3) Defendants' motion for a declaration regarding

Syntel's Platform Management Tools. *2

1

2

3 2

1 See Letter-Motion dated January 16, 2018

from Mr. Cutri (ECF No. 317); Letter in

opposition dated January 19, 2018 from

Ms. Sekel (ECF No. 316); Letter reply

dated January 22, 2018 from Mr. Cutri

(ECF No. 320). Certain correspondence

discussed herein were redacted and the

Court authorized that the original,

unredacted versions be filed under seal.

The parties are directed to make such

filings under seal.

2 See Letter-Motion dated January 16, 2018

from Ms. Sekel (ECF No. 307); Letter in

opposition dated January 19, 2018 from

Mr. Cutri (ECF No. 319); Letter reply

dated January 22, 2018 from Ms. Sekel

(ECF No. 309).

3 See Letter-Motion dated January 18, 2018

from Mr. Cutri (ECF No. 318); Letter in

opposition dated January 23, 2018 from

Ms. Sekel (ECF No. 311); Letter reply

dated January 29, 2018 from Mr. Cutri

(ECF No. 321); Letter dated January 29,

2018 from Ms. Sekel (ECF No. 322). ------

--

Oral argument on all three motions was held on

January 26, 2018 via telephone.

BACKGROUND

Syntel asserted claims in this action against

Defendants alleging breach of contract, intentional

interference with contractual relations and

misappropriation of confidential information.

(ECF Nos. 1, 39.) Defendants asserted

counterclaims against Syntel, alleging breach of

contract, breach of implied covenant of good faith

and fair dealing, misappropriation of confidential

information, misappropriation of trade secrets,

unfair competition, tortious interference with

prospective business relations and copyright

infringement. (ECF Nos. 21, 50, 215.) The claims

and counterclaims relate to a Master Services

Agreement ("MSA") entered into between Syntel

and TriZetto pursuant to which Syntel was to

1
assist TriZetto with software development,

consulting and other projects. This action arose

after Cognizant, a Syntel competitor, acquired

TriZetto and Syntel exercised its option to

terminate the MSA. See Syntel Sterling Best

Shores Mauritius Limited v. The Trizetto Group,

Inc., 15-CV-211 (LGS) (RLE), 2016 WL 5338550,

at *1 (S.D.N.Y. Sep. 23, 2016).

DISCUSSION

The scope of discovery in the federal courts is

quite broad. See Klipsch Grp., Inc. v. ePRO ECommerce Ltd., No. 16-3637-CV, 2018 WL

542338, at *7 (2d Cir. Jan. 25, 2018) (recognizing

the "extremely broad" discovery permitted by the

Federal Rules of Civil Procedure). Under Federal

Rule of Civil Procedure 26, "parties may obtain

discovery regarding any nonprivileged matter that

is relevant to any party's claim or defense and

proportional to the needs of the case[.]" Fed. R.

3 Civ. P. 26(b)(1). *3

"Although not unlimited, relevance, for the

purpose of discovery, is an extremely broad

concept." In re Namenda Direct Purchaser

Antitrust Litig., No. 15CIV7488CMJCF, 2017 WL

4700367, at *2 (S.D.N.Y. Oct. 19, 2017) (internal

quotation and citation omitted). As for

proportionality, Rule 26 tasks the Court to

consider "the importance of the issues at stake in

the action, the amount in controversy, the parties'

relative access to relevant information, the parties'

resources, the importance of the discovery in

resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its

likely benefit." Fed. R. Civ. P. 26(b)(1). On the

whole, "[a] district court has broad latitude to

determine the scope of discovery and to manage

the discovery process." EM Ltd. v. Republic of

Argentina, 695 F.3d 201, 207 (2d Cir. 2012)

(citing In re Agent Orange Prod. Liab. Litig., 517

F.3d 76, 103 (2d Cir. 2008)).

I. Defendants' Motion for a Rule

30(b)(6) Deposition is Granted in Part

and Denied in Part

On or about January 2, 2018, Defendants served a

Notice of Videotaped Deposition on Syntel,

pursuant to Rule 30(b)(6) of the Federal Rules of

Civil Procedure, calling for a witness or witnesses

to testify on behalf of Syntel regarding certain

topics. (30(b)(6)Notice, Defs.' Jan. 16, 2018

Letter-Motion Ex. B, ECF No. 317-2 ("30(b)(6)

Notice"), at 6.) Syntel objected to providing a

witness as to Topics 1 to 5, which generally relate

to (1) Syntel's collection and production of

documents, including, in particular, documents

from Ankur Chadha; (2) Syntel's document

preservation efforts; and (3) the unavailability of

certain of Syntel's computers. (Id. at 6-7.) Syntel

claims that no further inquiry regarding these

topics is necessary or appropriate because

sufficient discovery has already taken place,

including through a comprehensive forensic

examination, and argues that Defendants' requests

are seeking to circumvent prior discovery *4

orders in this case and "double check" Syntel's

counsel's work. (Pls.' Jan. 19, 2018 Letter in Opp.,

ECF No. 316, at 1-3.)

4

Rule 30(b)(6) permits a party to depose a

corporation or other organization by sending it a

notice of deposition describing "with reasonable

particularity the matters for examination." Fed. R.

Civ. P. 30(b)(6). "While Rule 30(b)(6) is not

designed to be a memory contest, the deponents

must be both knowledgeable about a given area

and prepared to give complete and binding

answers on behalf of the organization." BlackRock

Allocation Target Shares: Series S Portfolio v.

Wells Fargo Bank, Nat'l Ass'n, No. 14 CIV. 10067

(KPF) (SN), 2017 WL 3610511, at *11 (S.D.N.Y.

Aug. 21, 2017) (internal citation and quotation

omitted). "A Rule 30(b)(6) deposition notice, like

other forms of discovery, is subject to the

limitations under Rule 26 of the Federal Rules of

Civil Procedure." BlackRock, 2017 WL 3610511,

at *11 (internal citation omitted).

The Court is satisfied that Topics 1 to 5 are

relevant to issues in the case, including alleged

spoliation. However, the Court finds in its

2

Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto... 1:15-cv-00211 (LGS) (SDA) (S.D.N.Y. Jan. 30, 2018)
discretion that not all of the requested discovery is

proportional. First, Topics 1(b) and 1(c) seek

information regarding the contents of files

recovered from Mr. Chadha's devices that "hit on"

the agreed-upon search terms, and the facts and

circumstances regarding how and why Mr. Chadha

and Syntel were in possession of these files. (30(b)

(6) Notice at 6.) The Court understands that Syntel

has already reviewed and produced files from

these devices that are responsive to TriZetto's

document requests. Here, what Defendants

essentially are seeking is for Syntel to prepare a

witness to testify regarding non-responsive

documents. The Court finds that such testimony is

not proportional to the needs of the case,

particularly when Defendants can depose Mr.

Chadha regarding the contents of his files. The

same is true for information regarding Mr.

Chadha's possession of those files, which can also

be *5 obtained from Mr. Chadha himself. Thus,

the Syntel 30(b)(6) witness or witnesses need not

testify regarding Topics 1(b) and 1(c).

5

As for Topics 3 and 4, the Court hereby limits the

scope to "facts and circumstances relating to" the

requested topics (i.e., Syntel's document collection

and production and preservation efforts,

respectively), as opposed to "[a]ll facts,

circumstances [and] documents." (30(b)(6) Notice

at 7.) Defendants may inquire at the Rule 30(b)(6)

deposition about what Syntel did to collect and

produce documents in this action, and to

understand what Syntel did to preserve

documents, including through the distribution of

preservation notices. The Court is mindful that

such inquiries may touch upon matters that are

protected by the work product doctrine or other

privilege, but is also mindful that "permitting a

party to invoke work product as a blanket obstacle

to a 30(b)(6) deposition" may "undermine the

important utility of that device." 8A Charles A.

Wright, Arthur R. Miller & Richard L. Marcus,

Fed. Prac. & Proc. Civ. § 2103 (3d ed. 2010).

Syntel may, of course, assert any valid objections

on the grounds of the work product doctrine.

Finally, in Topic 5, Defendants seek information

regarding the unavailability of certain computers.

Syntel claims that this topic relates to a

preliminary assessment that identified many

computers as unavailable when, in fact, that

number was significantly reduced during the

course of the forensic examination. The Court

finds that the information sought in Topic 5 is not

proportional to the needs of the case, and hereby

limits Topic 5 to the unavailability of the devices

listed in ¶¶ 22(a) and (c) of the forensic examiner's

report. (Forensic Report, Defs.' Jan. 16, 2018

6 Letter-Motion Ex. I, ECF No. 317-9, at 11.) *6

II. Syntel's Motion to Compel

Electronic Production is Granted in

Part and Denied in Part

On November 17, 2016, Syntel served discovery

demands on Defendants seeking, among other

things, production by Defendants of source code,

damages information and information about

confidential safeguards. Certain materials were

produced by Defendants on April 21, 2017, along

with an invitation to Syntel to review and inspect

at TriZetto's office in Colorado, "TriZetto source

code, documents relating to Defendants' efforts to

protect and safeguard their intellectual property

and confidential, proprietary information, and

documents relating to damages in this case." (Pls.'

Letter-Motion, Ex. 2, ECF 307-2.) Defendants

assert that "certain legacy systems and data are not

amenable to mass production in review

platforms." (Defs.' Letter in Opp., ECF No. 319, at

3.) Defendants "offered to make a knowledgeable

employee available to assist Syntel in

understanding and querying any information from

the [TriZetto Colorado] databases and to produce

any such information." (Id.) Syntel has not

conducted such a review and inspection, but is

seeking by its motion to have Defendants

"produce electronically" the "relevant and

responsive material." (Pls.' Letter-Motion, ECF

No. 307, at 1.)

3

Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto... 1:15-cv-00211 (LGS) (SDA) (S.D.N.Y. Jan. 30, 2018)
Documents regarding Defendants' damages and

Defendants' protections of their trade secrets and

related material plainly are relevant and should be

produced. The Court agrees with Plaintiffs that it

is the responsibility of Defendants, not Plaintiffs,

to search for and identify such documents. Thus,

to that extent, Syntel's motion to compel electronic

production of such documents, set forth in

Request for Production Nos. 5, 6 and 14. (Pls.'

Letter-Motion, Ex. 2, ECF 307-1, at 7-8, 14), is

granted.

Syntel also seeks "electronic production" of source

code-related information. The Court recognizes

that this type of information can be difficult to

produce in a standard electronic *7 format, as

Defendants claim here. Indeed, the Federal Rules

of Civil Procedure expressly envision "inspection

and related activities[,]" which the Court finds is

appropriate under the circumstances. Fed. R. Civ.

P. 34(b)(2)(B). Thus, Syntel's motion regarding the

source code-related information is denied without

prejudice. If Syntel wishes to pursue further

discovery regarding source code, it must inspect

the source code-related information in TriZetto's

office in Colorado within thirty (30) days from the

date of this Order. At such inspection, Defendants

are ordered to make a knowledgeable employee

available to assist Syntel in understanding and

querying any information from the TriZetto

databases and to produce any such information. In

addition, Defendants shall identify for Syntel at

such inspection the source code-related

information that Defendants deem to be relevant.

If, after such inspection is completed, Defendants

believe that further discovery regarding the source

code is needed, they can renew their motion.

7

III. Defendants' Motion for

Declaration Regarding Platform

Management Tools is Denied

At a hearing on June 29, 2016, Magistrate Judge

Ellis granted a motion to compel by Defendants

regarding Syntel's Platform Management Tools.

(Tr., ECF No. 166, at 2.) Defendants now move

for an Order compelling Syntel to produce a

declaration from a competent witness that

"answers and explains" four questions set forth on

page 3 of Defendants' counsel's letter of January

18, 2018 ("January 18 Questions"). (Defs.' Jan. 18,

2018 Letter-Motion, ECF No. 318, at 3.) Syntel

opposes this motion, arguing, among other things,

that depositions of nine Syntel employees are

scheduled in the next six weeks and that

Defendants can take live testimony regarding the

Platform Management Tools. (Pls.' Letter in Opp.,

ECF No. 311, at 2-3.)

Defendants' did not initially cite to any authority

that would entitle them to such a declaration.

(Defs.' Jan. 18, 2018 Letter-Motion, ECF No. 318,

at 3.) In a supplemental letter *8 submitted after

oral argument, Defendants assert that authority

exists to require such a declaration from three

sources: (1) the Court's inherent authority; (2) Fed.

R. Civ. P. 31(a)(4) (deposition on written

questions); and (3) Fed. R. Civ. P. 37(b)(2)(A)

(sanctions for not obeying a discovery order).

(Defs.' Jan. 29, 2018 Letter, Ex. A.)

8

The Court in its discretion declines to use its

inherent authority to provide Defendants the relief

sought, and also declines to issue sanctions.

Moreover, as far as the Court is aware, Defendants

have not sought to proceed by way of depositions

by written questions under Fed. R. Civ. P. 31, in

lieu of depositions by oral examination under Fed.

R. Civ. P. 30.

As noted by Syntel, there are nine depositions of

Syntel witnesses on oral examination that will take

place in the next six weeks, and Defendants can

seek answers to their questions during these

depositions. In addition, the Court hereby grants

leave to Defendants to ask the four January 18

Questions, at the Rule 30(b)(6) deposition of

Syntel's witness that is referenced above. Thus,

Defendants' Motion is denied.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED

that:

4

Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto... 1:15-cv-00211 (LGS) (SDA) (S.D.N.Y. Jan. 30, 2018)
*9

1. Defendants' motion to compel Syntel to

provide a Rule 30(b)(6) witness or

witnesses as to Topics 1 to 5 is GRANTED

IN PART AND DENIED IN PART. Syntel

shall provide a witness or witnesses to

testify regarding Topics 1 to 5, as modified

on pages 4 to 5 of this Opinion and Order.

Defendants also have leave to take

testimony from Syntel's witness or

witnesses regarding the January 18

Questions. Syntel's Rule 30(b)(6)

deposition shall be taken as soon as

practicable, but no later than February 16,

2018.

9

2. Syntel's motion to compel electronic

production concerning damages

information and information about

confidential safeguards is GRANTED.

Syntel's motion concerning source coderelated information is DENIED

WITHOUT PREJUDICE. If Syntel wishes

to pursue further discovery regarding

source code, it must inspect the source

code-related information in TriZetto's

office in Colorado within thirty (30) days

from the date of this Order. At such

inspection, Defendants are ORDERED to

make a knowledgeable employee available

to assist Syntel in understanding and

querying any information from the

TriZetto databases and to electronically

produce any such information. In addition,

Defendants shall identify for Syntel at such

inspection the source code-related

information that Defendants deem to be

relevant.

3. Defendants' motion to compel Syntel to

produce a declaration is DENIED.

SO ORDERED.

DATED: New York, New York

January 30, 2018

/s/_________

STEWART D. AARON

United States Magistrate Judge

5

Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto... 1:15-cv-00211 (LGS) (SDA) (S.D.N.Y. Jan. 30, 2018)
6

Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto... 1:15-cv-00211 (LGS) (SDA) (S.D.N.Y. Jan. 30, 2018)