United States District Court, D. New Jersey
November 4, 2005.
BRACCO DIAGNOSTICS INC., Plaintiff,
AMERSHAM HEALTH INC., et al., Defendants.
The opinion of the court was delivered by: TONIANNE BONGIOVANNI, Magistrate Judge
LETTER OPINION AND ORDER ON INFORMAL MOTIONS
This matter comes before the Court upon independently filed
informal Applications of Christopher A. Colvin, Esq., attorney
for Plaintiff Bracco Diagnostics, Inc. (hereinafter "Plaintiff")
and Jeffrey S. Ginsberg, Esq., attorney for Defendants Amersham
Health Inc., et al., (hereinafter "Defendants") objecting to FED.
R. CIV. P. 30(b)(6) deposition topics.
On August 30, 2005, this Court set forth an Order directing
parties to, among other things, notify the Court of any disputes
regarding objections to FED. R. CIV. P. 30(b)(6) notifications no
later than September 16, 2005. Both parties, in letter briefs
dated September 16, 2005, informally noticed the Court regarding
objections each had. Specifically, Plaintiff objects to
Defendants' FED. R. CIV. P. 30(b)(6) deposition, topic nine, and
Defendants object to Plaintiff's FED. R. CIV. P. 30(b)(6)
deposition, topic two. For the foregoing reasons, both objections
shall be denied. The Fed.R.Civ.P. 30(b)(6) Standard
Federal Rule of Civil Procedure 30(b)(6) enables a deposing
party to gather information from a corporation by way of a human
being named by that corporation to serve as the corporation's
voice. The pertinent language of the Rule states that "[a] party
may in the party's notice and in a subpoena name as the deponent
a public or private corporation or a partnership or association
or governmental agency. . . . In that event, the organization so
named shall designate one or more officers, directors, or
managing agents, or other persons who consent to testify on its
behalf." FED. R. CIV. P. 30(b)(6). In other words, the Rule
allows a corporation to speak through its agents. Hooker v.
Norfolk S. Railway Co., 204 F.R.D. 124, 125 (S.D.Ind. 2001). The
policy considerations raised in creating the Rule underscore the
purposes behind the Rule.
[A] 30(b)(6) deposition more efficiently produces the
most appropriate party for questioning, curbs the
elusive behavior of corporate agents who, one after
another, know nothing about facts clearly available
within the organization and suggest someone else has
the requested knowledge, and reduces the number of
depositions for which an organization's counsel must
prepare agents and employees.
Kosieradzki, Mark R., It's All in the Documents: Strategic Use
of Rules 30b) (5), 30(b)(6), and 34, Winter2005 ATLA-CLE 91
(2005) (internal citations omitted). Thus, FED. R. CIV. P.
30(b)(6) was created in order to help clarify the murky waters of
corporate discovery. This effect is achieved through the
cessation of finger-pointing and endless buck-passing; a 30(b)(6)
deponent is required to know the answers, and the buck stops with
Scope of discovery under Rule 30(b)(6) is coextensive with the
scope under Rule 26(b)(1)
Because the FED. R. CIV. P. 30(b)(6) deponent is required to
know the answers, the Court must determine what the scope of
questions should be. Integral to any analysis concerning scope is the notion that Rule 30(b)(6) does not appear to set its own
discovery standard. The Court should "not read Rule 30(b)(6) as
carving out a special limitation on the scope of discovery
defined in [Fed.R.Civ.P.] 26(b)(1)." Cabot Co. v. Yamulla
Enterprises, Inc., 194 F.R.D.499, 500 (M.D.Pa. 2000); see
also Hooker, 204 F.R.D. at 126 ("Rule 30(b)(6) does not set
its own discovery standard . . . [t]herefore [Rule] 26(b)(1) is
the proper standard to resolve [the discovery] dispute."). FED.
R. CIV. P. 30(b)(6) defines the scope of discovery "unless
otherwise ordered by the court." Cabot, 194 F.R.D. at 500. It
allows a party to obtain information from a party to the
litigation concerning "any matter, not privileged, which is
relevant to the subject matter involved in the pending action."
FED. R. CIV. P. 26(b)(1) (West 2005). The information sought need
not be admissible at trial if it appears reasonably calculated to
lead to the discovery of admissible evidence. Id.
In addressing the scope of FED. R. CIV. P. 30(b)(6), at least
one court has held that parties must confine deposition questions
to matters stated with "reasonable particularity" in the notice
of deposition. See Paparelli v. Prudential Ins. Co. of America,
108 F.R.D. 727 (D.Mass. 1985). More recently, a string of
district courts around the country have refused to follow
Paparelli in favor of a rule that, regardless of the
information contemplated in the notice of deposition, the
deponent must answer all relevant questions. See King v. Pratt
& Whitney, 161 F.R.D. 475 (S.D. Fl. 1995) (emphasis supplied).
In King, the Florida district court reasoned that "Rule
30(b)(6) should not be read to confer some special privilege on a
corporate deponent responding to [a 30(b)(6)] notice. Clearly,
Plaintiff could simply re-notice a deponent under the regular
notice provisions and ask him the same questions that were
objected to." Id. At 476. Rather than forcing the plaintiff to
"jump through that extra hoop," the court offered a reading of the Rule
consisting of four elements:
1) Rule 30(b)(6) obligates the responding corporation
to provide a witness who can answer questions
regarding the subject matter listed in the notice;
2) If the designated deponent cannot answer those
questions, then the corporation has failed to comply
with its Rule 30(b)(6) obligations and may be subject
to sanctions, etc. The corporation has an affirmative
duty to produce a representative who can answer
questions that are both within the scope of the
matters described in the notice and are "known or
reasonably available" to the corporation. Rule
30(b)(6) delineates this affirmative duty;
3) If the examining party asks questions outside the
scope of the matters described in the notice, the
general deposition rules govern (i.e. Fed.R.Civ.P.
26(b)(1)), so that relevant questions may be asked
and no special protection is conferred in a deponent
by virtue of the fact that the deposition was noticed
4) However, if the deponent does not know the answer
to questions outside the scope of the matters
described in the notice, then that is the examining
Id. (Emphasis supplied). It seems that any reasonable reading
of the King test would result in a finding that FED. R. CIV. P.
30(b)(6) does not carve into Rule 26 a special niche into which a
deponent noticed under Rule 30 may place information he/she does
not want exposed. Further, as the court in Cabot found, the
language of FED. R. CIV. P. 26(b) "provides that the only way to
change the scope of discovery set forth in Rule 26(b)(1) is by
order of the court `in accordance with these rules.'" Cabot,
194 F.R.D. at 500. The Cabot court relied on this language to
conclude that "[i]t is therefore untenable to suggest that
`describe with reasonable particularity the matters on which the
examination is requested' is a limitation on the scope set forth
in Rule 26(b)(1)." Id. Because it appears that FED. R. CIV. P.
30(b)(6) does not carve into FED. R. CIV. P. 26 discovery an
exception, it follows that a FED. R. CIV. P. 30(b)(6) deponent
must answer discovery requests coextensive with the requirements of FED. R.
CIV. P. 26 discovery.
The information sought by the parties are likely within the
scope of FED. R. CIV. P. 26(b)(1)
Rule 26(b)(1) addresses relevancy of discovery, and states in
pertinent part that "[f]or good cause the court may order
discovery of any matter relevant to the subject matter involved
in the action." FED. R. CIV. P. 26(b)(1) (West 2005). The
information sought in discovery is not required to be ultimately
admissible. The rule requires that "[r]elevant information need
not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence." Id. Thus, it appears that "the requirement of
relevancy should be construed liberally and with common sense,
rather than in terms of narrow legalisms." Wright & Miller,
Federal Practice and Procedure, 8 Fed. Prac. & Proc. Civ2d §
Plaintiff's objection to Defendants' topic nine
Defendants noticed Plaintiff that it would seek from
Plaintiff's 30(b)(6) deponent information regarding product
advertisements. Specifically, Defendants request in its topic
Separately for each advertisement and promotional
statement made by Amersham that Bracco alleges is
false and/or misleading, the factual basis for why it
is false and/or misleading.
See Pl. September 16, 2005 Letter Brief at 1. Plaintiff objects
to topic nine on the grounds that the request by Defendants seek
expert discovery and Plaintiff's contentions. Its argument relies
on the posit that "[T]opic 9 clearly seeks [Bracco's] contentions
concerning `why' [Amersham's] advertisements and promotions are
false and misleading." Id. at 2 (emphasis in original).
It appears that topic nine seeks the facts that underlie
Plaintiff's allegations in its suit brought under the Lanham Act.
Based on the submissions by Plaintiff to the Court, it is unclear
how seeking the factual basis for contentions is not relevant
under FED. R. CIV. P. 30(b)(6). It is further unclear how the factual bases are equal to the
contentions themselves. For example, if a deponent is asked about
the weather conditions at the time of a car accident, that
deponent is not being asked whether he was negligent. It seems
that the facts sought by Amersham not only are relevant under the
broad scope of Rule 26(b)(1) discovery parameters, but also do
not seek Plaintiff's contentions or expert opinions. As such,
Plaintiff's objection to Defendants' topic nine will be denied.
Defendants' objection to Plaintiff's topic two
Defendants likewise object to one of Plaintiff's FED. R. CIV.
P. 30(b)(6) topics. Specifically, Plaintiff in its topic two
requests in pertinent part:
The factual basis supporting and/or contradicting the
advertising and promotion of Visipaque concerning:
(a) Amersham's statements regarding the NEPHRIC Study
. . .; (b) The `Visipaque Protocol,' . . . [and] (d)
Amersham's statements on its website(s) regarding
Visipaque. . . .
See Def. September 16, 2005 Letter Brief at 1. Defendants
specifically object to "providing a witness to testify on facts
that contradict [its] statements . . . because Amersham is not
aware of any facts that in its opinion contradict such
statements." Id. According to Defendants, they have already
agreed to designate a witness to testify on the facts that
support its promotional statements. See Def. September 23, 2005
Letter Brief at 2.
Defendant's objection stems from their purported lack of
knowledge; based on the aforementioned analysis it appears that
such an objection cannot be grounds for denying Plaintiff from
asking the question. The letter and spirit of the Federal Rules
of Civil Procedure create an affirmative duty to produce a FED.
R. CIV. P. 30(b)(6) representative who can answer questions that
are both within the scope of the matters described in the notice
and are "known or reasonably available" to the corporation. Even if the court were to grant
the objection and deny Plaintiff's topic two from being included,
Defendants could still ask the question regardless whether it is
noticed or not, based on King and the majority of district
courts that have addressed 30(b)(6) notice matters. Therefore,
Defendants' objection to Plaintiff's topic two will be denied.
ACCORDINGLY, IT IS, on this 4th day of November, 2005,
ORDERED that Plaintiff's objection to Defendants' FED. R. CIV.
P. 30(b)(6) notification, topic nine is DENIED; and it is further
ORDERED that Defendants' objection to Plaintiff's FED. R. CIV.
P. 30(b)(6) notification, topic two is DENIED.
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