FRCP 30(b)(5) and Overbroad Deposition Document Requests
FRCP 30(b)(6) Deposition Notices are frequently accompanied by a FRCP 30(b)(5) request for documents. Often, discovering parties use the document requests to burden the party to be deposed with overbroad document discovery while the party is trying to prepare for the FRCP 30(b)(6) deposition.
There is fairly good authority for the proposition that FRCP 30(b)(5) is meant for narrow, focused document discovery related to the pending FRCP 30(b)(6) deposition and is not intended to substitute for broad FRCP 34 document discovery.
A party faced with an onerous FRCP 30(b)(5) request can object and use the following arguments and authority (taken from a recent Special Master opinion -- PTO 12 -- in MDL 1358):
"Rule 30(b)(5) states in relevant part as follows:
The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request.
The pertinent portion of the Advisory Committee Notes to this subsection states that:
... [a] provision is added to enable a party, through service of notice, to require another party to produce documents or things at the taking of his deposition ... Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rule 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone." (emphasis added). [Emphasis supplied]
Although made in a different context, the Court's comments and citation in Canal Barge Co, v. Commonwealth Edison Co., 2001 U.S. Dist. LEXIS 10097 (N.D. Ill. 2001) are instructive:
Canal Barge's second request is for the Court to strike all of the riders which ask for Canal Barge to produce numerous documents to ComEd at the depositions. ComEd attaches these riders pursuant to Rule 30(b)(5) ... Canal Barge objects to producing these documents on the basis that
written discovery closed on April 30, 2001, and that a Rule 30(b)(5) request for production of documents made after the close of written discovery violates the requirements of Rule 34.
This Court follows the holding of Carter v. United States, 164 F.R.D. 131 (D. Mass, 1995), referred to by both parties in their briefs. In Carter [at 1331, the district court relied on language in the Advisory Committee's Notes to Rule 30(b)(5) in coming to its holding that only the most narrow and relevant documents may be requested pursuant to Rule 30(b)(5): "In essence, a document request under Rule 30(b)(5) is a complement to a Rule 30 deposition, not a substitute for a Rule 34 document request.... Thus, . requests which fall under the rubric of a Rule 30(b)(5) deposition should be `few and simple' and `closely related to the oral examination' sought. Otherwise, the Court may assume that the document request falls under Rule 34 ..." [emphasis supplied]
The riders at issue ask for broad categories of written documents, many of which are unlimited in time and would include documents generated during the entire thirty-year duration of the contract ... The Court finds that these document requests are neither "few and simple" nor "closely related to the oral examination sought." Canal Barge asserts that many of the requested documents have previously been produced to ComEd [fn omitted], and this Court finds that Canal Barge is not required bring any documents to the deposition which it has already produced to ComEd....
Therefore, Canal Barge's motion to strike the riders attached to notices of depositions is granted. However, the Court will require that Canal Barge bring with it to the deposition any documents, not previously produced to CornEd, which the designee relied upon in preparing for the deposition."
The Court in Carter further noted:
Plaintiff has made little secret of the fact that his deposition notices were directed more at the documents enumerated than the testimony sought. Indeed, the Plaintiffs deposition notices appear, at least in
part, to come out of his frustration with the `inadequate and misleading response to our prior request for production of documents.' [citation omitted]. As noted at oral argument, however, Plaintiffs motion to compel does not arise from his previous request for production of documents. Instead, Plaintiffs motion is specifically directed at the three oral deposition notices, to which Defendant objected as not only untimely, but as irrelevant and unduly burdensome as well. Further, by Plaintiffs own admission, one purpose of the depositions was to establish certain negatives with respect to the documents sought, for example, that certain documents did not exist and that certain psychiatric evaluations were not done. [citations omitted]
In the Court's view, the deposition notices, heavily laden with document requests and divorced from any articulated bases for the oral testimony, were ... improper and [plaintiffs'] motion to compel must be denied....
Accordingly, Plaintiff shall have until January 12, 1996, to note the Defendant for deposition under Rule 30(b)(6), describing with reasonable particularity the matter(s) on which the examination is requested. Plaintiff may also request therein the production of documents in accord with Rule 30(b)(5), which shall be few and simple and closely related to the oral examination."
[End of Quote]
Closely related to this issue is the issue of the discoverability of documents reviewed by the FRCP 30(b)(6) witness in preparation for deposition. That issue is addressed in my October 13, 2005 post.
There is fairly good authority for the proposition that FRCP 30(b)(5) is meant for narrow, focused document discovery related to the pending FRCP 30(b)(6) deposition and is not intended to substitute for broad FRCP 34 document discovery.
A party faced with an onerous FRCP 30(b)(5) request can object and use the following arguments and authority (taken from a recent Special Master opinion -- PTO 12 -- in MDL 1358):
"Rule 30(b)(5) states in relevant part as follows:
The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request.
The pertinent portion of the Advisory Committee Notes to this subsection states that:
... [a] provision is added to enable a party, through service of notice, to require another party to produce documents or things at the taking of his deposition ... Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rule 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone." (emphasis added). [Emphasis supplied]
Although made in a different context, the Court's comments and citation in Canal Barge Co, v. Commonwealth Edison Co., 2001 U.S. Dist. LEXIS 10097 (N.D. Ill. 2001) are instructive:
Canal Barge's second request is for the Court to strike all of the riders which ask for Canal Barge to produce numerous documents to ComEd at the depositions. ComEd attaches these riders pursuant to Rule 30(b)(5) ... Canal Barge objects to producing these documents on the basis that
written discovery closed on April 30, 2001, and that a Rule 30(b)(5) request for production of documents made after the close of written discovery violates the requirements of Rule 34.
This Court follows the holding of Carter v. United States, 164 F.R.D. 131 (D. Mass, 1995), referred to by both parties in their briefs. In Carter [at 1331, the district court relied on language in the Advisory Committee's Notes to Rule 30(b)(5) in coming to its holding that only the most narrow and relevant documents may be requested pursuant to Rule 30(b)(5): "In essence, a document request under Rule 30(b)(5) is a complement to a Rule 30 deposition, not a substitute for a Rule 34 document request.... Thus, . requests which fall under the rubric of a Rule 30(b)(5) deposition should be `few and simple' and `closely related to the oral examination' sought. Otherwise, the Court may assume that the document request falls under Rule 34 ..." [emphasis supplied]
The riders at issue ask for broad categories of written documents, many of which are unlimited in time and would include documents generated during the entire thirty-year duration of the contract ... The Court finds that these document requests are neither "few and simple" nor "closely related to the oral examination sought." Canal Barge asserts that many of the requested documents have previously been produced to ComEd [fn omitted], and this Court finds that Canal Barge is not required bring any documents to the deposition which it has already produced to ComEd....
Therefore, Canal Barge's motion to strike the riders attached to notices of depositions is granted. However, the Court will require that Canal Barge bring with it to the deposition any documents, not previously produced to CornEd, which the designee relied upon in preparing for the deposition."
The Court in Carter further noted:
Plaintiff has made little secret of the fact that his deposition notices were directed more at the documents enumerated than the testimony sought. Indeed, the Plaintiffs deposition notices appear, at least in
part, to come out of his frustration with the `inadequate and misleading response to our prior request for production of documents.' [citation omitted]. As noted at oral argument, however, Plaintiffs motion to compel does not arise from his previous request for production of documents. Instead, Plaintiffs motion is specifically directed at the three oral deposition notices, to which Defendant objected as not only untimely, but as irrelevant and unduly burdensome as well. Further, by Plaintiffs own admission, one purpose of the depositions was to establish certain negatives with respect to the documents sought, for example, that certain documents did not exist and that certain psychiatric evaluations were not done. [citations omitted]
In the Court's view, the deposition notices, heavily laden with document requests and divorced from any articulated bases for the oral testimony, were ... improper and [plaintiffs'] motion to compel must be denied....
Accordingly, Plaintiff shall have until January 12, 1996, to note the Defendant for deposition under Rule 30(b)(6), describing with reasonable particularity the matter(s) on which the examination is requested. Plaintiff may also request therein the production of documents in accord with Rule 30(b)(5), which shall be few and simple and closely related to the oral examination."
[End of Quote]
Closely related to this issue is the issue of the discoverability of documents reviewed by the FRCP 30(b)(6) witness in preparation for deposition. That issue is addressed in my October 13, 2005 post.
posted by Bob Redmond at 2:17 PM
0 Comments:
Post a Comment
<< Home