Artis v. Bernanke
Artis v. Bernanke
2013 WL 12300565 (D.D.C. 2013)
May 6, 2013
Sullivan, Emmet G., United States District Judge
Summary
The Court denied plaintiffs' Motion for Leave to File a Corrected Opposition to Defendant's Motion for a Protective Order and granted defendant's Motion for a Protective Order. The Court found that the Amended Notice was overly broad and did not comply with the Court's Orders regarding its scope, and that plaintiffs had forfeited the right to seek depositions on broad-ranging topics relevant to class certification. The Court also noted that ESI was requested in the Amended Notice, but that it was not properly requested by plaintiff during the class discovery period.
Cynthia ARTIS, et al., Plaintiffs,
v.
Ben S. BERNANKE,1 Chairman of the Board of Governors of the Federal Reserve System, Defendant
v.
Ben S. BERNANKE,1 Chairman of the Board of Governors of the Federal Reserve System, Defendant
Civil Action No. 01-400 (EGS)
United States District Court, District of Columbia
Signed May 06, 2013
Counsel
Walter T. Charlton, Walter T. Charlton & Associates, Washington, DC, for Plaintiffs.John L. Kuray, Joshua P. Chadwick, Board of Governors of the Federal Reserve System, Kenneth M. Willner, Paul Hastings, LLP, Washington, DC, for Defendant.
Sullivan, Emmet G., United States District Judge
ORDER
*1 Pending before the Court is defendant's Second Motion for a Protective Order regarding plaintiffs' Amended Rule 30(b)(6) Notice of Deposition. Also pending before the Court is plaintiffs' Motion for Leave to File a Corrected Opposition to Defendant's Motion for a Protective Order. For the reasons explained below, plaintiff's Motion for Leave to File a Corrected Response is DENIED and defendant's Motion for a Protective Order is GRANTED.
I. Background
On July 21, 2011, the Court entered a Scheduling Order in this case dividing discovery into three phases, the first of which was devoted to class certification. In the Scheduling Order, the Court stated that “Phase I discovery shall include, and is limited to, any discovery that is relevant under Fed. R. Civ. P. 26 to class certification issues arising under Fed. R. Civ. P. 23.” Scheduling Order at 2. The Scheduling Order also stated that during Phase I fact discovery, “[d]efendant may depose all plaintiffs and any other witnesses identified by plaintiff as supporting their motion for class certification and up to five additional witnesses.” Id. at 3. Plaintiffs were permitted to “depose all witnesses identified by defendant as supporting defendant's position regarding class certification and up to five additional witnesses.” Id. Fact discovery on the issue of class certification was to close on July 31, 2012.
During the class discovery period, defendant served deposition notices on all plaintiffs, who subsequently refused to be deposed. Plaintiffs did not notice any depositions and, specifically, did not seek to take a Rule 30(b)(6) deposition during the class discovery period. Rather, plaintiffs made several requests for an informal “conference” with defendant's information technology staff to discuss certain electronic data produced by defendant. On October 12, 2012, the Court granted defendant's motion to compel plaintiffs' depositions and other discovery requests with which plaintiffs did not comply. The Court denied plaintiffs' cross-motion to compel, finding that plaintiffs had not properly requested the information that they alleged had been withheld. With respect to plaintiffs' arguments regarding a “conference” with certain employees of defendant, the Court found that plaintiffs had not properly noticed the deposition of those employees. The Court noted that plaintiffs had not served a 30(b)(6) notice of deposition, which would have been a possible avenue for obtaining such information.
After the Court denied plaintiffs' motion to compel, plaintiffs filed a “Motion to Take Deposition From Several Unknown Names.” In the motion, plaintiffs sought to take “approximately five” depositions of people with knowledge of defendant's electronic database materials because of questions that plaintiffs had about the electronic data produced by defendant. ECF No. 140. Defendant did not entirely oppose the motion. Rather, defendant argued that plaintiff should only be permitted to take the deposition of one information technology employee. On November 20, 2012, the Court granted plaintiff's motion in part, permitting plaintiffs to serve
*2 one out-of-time Rule 30(b)(1) or 30(b)(6) deposition on defendant, subject to the following limitations. The deposition shall be limited to questions regarding the electronic data the Board has produced to plaintiffs in response to their requests for production. To the extent that plaintiffs seek to inquire into documents or data allegedly not produced by defendant, plaintiffs are strictly limited to documents and data that plaintiffs formally requested from defendant in Rule 34 Requests for Production served prior to the July 31, 2012 close of class discovery.
Nov. 20, 2012 Minute Order. The Court ordered that the deposition notice was to be served by no later than December 3, 2012, and the deposition was to take place by no later than January 18, 2013.
On December 19, 2012, defendant filed a Motion for a Protective Order regarding plaintiffs' Rule 30(b)(6) deposition notice. ECF No. 160. The Board argued that the Notice of Deposition served by plaintiffs was overly broad and was in violation of the clear limitations set by the Court. The Court agreed, noting that the deposition notice went far beyond the scope of the electronic data set by the Court's November 20, 2012 Order. For example, the notice asked broad questions regarding “how a person becomes a manager or supervisor” and several numbered paragraphs in the notice indicated that they were “reserved for new information.” Defendant again only requested that plaintiffs be required to serve a proper Rule 30(b)(6) Notice, rather than barring plaintiffs from serving any further notices. The Court granted defendant's Motion for a Protective Order and struck the December 4, 2012 Notice of Deposition. The Court further limited and clarified the appropriate scope of the notice:
The notice shall specify with particularity the areas of inquiry that plaintiffs intend to pursue in order to understand the data that the Board has already produced to the plaintiffs. Each line of inquiry shall make reference to specific questions about specific documents and data produced by the Board. To the extent that plaintiffs seek to inquire as to Rule 34 discovery properly served on the Board by allegedly not produced, each line of inquiry must specifically identify the request for production, the alleged deficiency in the Board's response, and how that deficiency impacts plaintiffs' ability to use specific aspects of the electronic data produced by the Board. This will be plaintiffs' final opportunity to serve an out-of-time Rule 30(b)(6) notice of deposition. If the revised 30(b)(6) notice fails to comply with this Order, it will be stricken with prejudice.
Jan. 18, 2013 Minute Order (emphasis added).
Plaintiffs subsequently served an amended Rule 30(b)(6) Notice on defendant. (hereinafter “Amended Notice”). On March 18, 2013, defendant filed a Motion for a Protective Order regarding the Amended Notice. In its Second Motion for a Protective Order, defendant argues that the Amended Notice remains confusing and does not comply with the Court's November 20, 2012 and January 18, 2013 Orders. Defendant also argues that, in addition to exceeding the permissible scope, the Amended Notice is so confusing that defendant does not believe it can properly prepare a witness or group of witnesses to testify on the topics encompassed in the notice, as it would be required to do by Rule 30(b)(6).
In their opposition filed on April 8, 2013, plaintiffs make several arguments related to an alleged “major amendment” to Federal Rule of Civil Procedure 26. Specifically, plaintiffs argue that amendments to Rule 26 that were made effective on April 1, 2013 now require broader disclosure of “comparator” data in class actions. Plaintiffs argue that these amendments have broad-reaching implications in this case but, at a minimum, require that defendant's motion for a protective order be denied.
*3 Four days later, on April 12, 2013, plaintiffs filed a motion to withdraw their opposition to defendant's Motion for a Protective Order and sought to replace their opposition with a “corrected brief.”[2] ECF No. 181. In the motion, plaintiffs explain that Rule 26 had not, in fact, been amended. Counsel explained that he “obtained incorrect information from an internet source; a purported amendment to Rule 26 which had never occurred.” ECF No. 181 at 1. Defendant filed an opposition to the motion to withdraw, arguing that plaintiffs should not be permitted to file a replacement brief because of their failure to conduct a reasonable inquiry into whether the purported Rule 26 amendment truly occurred. Defendants also attach an email from plaintiffs' counsel, in which he states that he obtained the information from a “list server, purportedly sent from what [he] believed to be a reliable source.” ECF No. 182, Ex. B. Plaintiffs' counsel stated that he suspected that his computer had been “under a substantial cyber-attack by persons presently unknown.” Id. In reply, plaintiffs argue that the Court should accept the corrected brief because counsel identified the error shortly before defendant's reply would have been due, and thus there was no “material prejudice.” ECF No. 183. Plaintiffs also argue that if the Court does not permit the filing of a corrected brief, it would “result in a total denial of plaintiffs' right to discovery, potentially fatal to their case.” Plaintiffs argue that the corrected brief is substantially similar to the previously-filed version, other than the removed portions regarding Rule 26.
II. Standard of Review
Under Rule 26(c), a person from whom discovery is sought may move for a protective order, and the Court may, for good cause “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense, including ... (A) forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c).
III. Discussion
This is plaintiffs' third opportunity to serve a proper notice of deposition on the defendant. The first opportunity was during class discovery in this case, which closed on July 31, 2012. Plaintiffs failed to notice any depositions prior to the close of class discovery. Plaintiffs subsequently sought and obtained leave of Court to serve an out-of-time Rule 30(b)(6) deposition, subject to the narrow and specific limitations set forth by the Court. The purpose of the deposition was to allow plaintiffs a narrow inquiry into certain documents and data produced by the Board that plaintiffs alleged was not useable or required explanation. The first deposition notice served by plaintiffs did not, however, comply with the Court's Order, and the Court granted defendant's Motion for a Protective Order. Plaintiffs then served the Amended Notice that is the subject of the current Motion for a Protective order.
A. Plaintiffs' Motion to Correct
Plaintiffs' efforts to substitute a “corrected brief” raise a threshold question for the Court to resolve. As a result of plaintiffs' repeated past attempts to file corrected briefs and “errata”, the Court entered an Order on December 4, 2012 advising plaintiffs' counsel that any subsequent corrections would not be accepted for filing absent exigent circumstances. Thus, plaintiffs must establish that exigent circumstances exist before the Court will accept the proposed “corrected brief.”
Plaintiffs argue that exigent circumstances exist as a result of plaintiffs' counsel's citation to a fictitious amendment of Rule 26, and that plaintiffs should be permitted to correct this error of law. The Court strongly disagrees. Plaintiffs' counsel appears to have wholly failed to investigate the legal support for his motion, relying instead on an email sent to him from an unknown source. That was unreasonable. See Fed. R. Civ. P. 11(b)(requiring an inquiry “reasonable under the circumstances” that legal contentions in court filings are “warranted by existing law or a nonfrivolous argument for extending, modifying, or reversing existing law). The Court also declines to consider plaintiffs' counsel's statements regarding the “hacking” of his computer by “unknown persons.” See ECF No. 183 at 3. In making this argument, counsel appears to be asking the Court to accept as true that 1) counsel's computer was hacked; 2) by someone who planted false information about an amendment to Rule 26; 3) with the knowledge that counsel would blindly rely on the material and cite it in a court filing. This argument strains the imagination and the Court rejects it without further discussion.
*4 The Court is particularly troubled by plaintiffs' argument that no “material prejudice” was caused by their filing of a brief that relied on a fictitious amendment of Rule 26. Plaintiffs' opposition was filed on April 8, 2013 and defendant's opposition would have been due seven days later on April 16, 2013. Plaintiff's motion to withdraw was not filed until April 12, 2013, on a Friday, four days before the reply brief was due. The Court finds that it is entirely reasonable that defendant would have spent its time and resources drafting a reply during that time. That is, however, somewhat beside the point. The Court is struck by the amount of effort defendant has been required to expend working with plaintiffs in formulating and responding to plaintiffs' various proposed notices and requests for additional discovery. Defendant has not opposed these efforts outright, and instead has agreed to allow plaintiffs multiple attempts to serve a proper notice of deposition. Through the process, however, defendant has filed over 30 pages of briefing on the issue, not including the various objections and correspondence the parties have exchanged on the topic. The Court finds, therefore, that defendant has been prejudiced by plaintiffs' various efforts to take an out-of-time deposition, and this is another factor that weighs against permitting plaintiffs to substitute a corrected brief. Accordingly, plaintiffs' Motion to Correct is DENIED.
B. Defendant's Second Motion for a Protective Order
The Court now turns to defendant's Second Motion for a Protective Order. In view of the Court's denial of the motion to correct plaintiffs' opposition, the Court must determine whether to consider the arguments made in plaintiffs' original April 8, 2013 opposition or deem the original brief to have been withdrawn as plaintiffs requested. See ECF No. 181 at 2. Because the Court denied plaintiffs' request to substitute a corrected brief, the Court will consider the arguments made in plaintiffs' original submission and will not consider it withdrawn. Nonetheless, the Court finds that the Amended Notice fails to comply with the limitations set by the Court and the Court will therefore grant defendant's Second Motion for a Protective Order.
The Amended Notice is a confusing collection of allegations, cross-references, and attachments. See Def.'s Second Mot. for Protective Order at Ex. A. Although the Court's January 18, 2013 Order directed plaintiffs to provide “specific questions about specific documents and data produced by the Board,” the Amended Notice fails to clearly do so. For example, paragraph one states:
In reference to the information contained in the “MEMO,” which is contained in the data furnished by the Board, plaintiffs shall inquire about the Metadata described on page 1 items 1 through seven, and all documents which describe how that data is used. That information is needed to interpret what the data means. Set 1 of Plaintiffs discovery, including all explanations and definitions, and including Interrogatory No 2 serve as the requests for this information which was in fact furnished, but which is largely not understandable because of the following data definition deficiencies (inadequate or missing definition and meaning of a group of data, is also a deficiency)....
Amended Notice at 1. Although this request refers to a specific document, the proposed line of inquiry is rather unclear. The Court has reviewed the objections exchanged by the parties in response to this request, which further support the fact that this request is confusing and overbroad. For example, in a February 15, 2013 response to defendant's objections to the Amended Notice, plaintiffs stated that “INQUIRY #1 IS NOT ABOUT METADATA.” ECF No. 174, Ex. F, at 6. In a subsequent email sent on February 26, 2013, however, plaintiffs' counsel wrote that he “misspoke as to the usage of metadata.... We need all Metadata as well as the meat of what I described in the explanations.” Id. Ex. G. The Board surmises, and the Court agrees, that it appears that even plaintiffs do not fully understand the scope of what they have requested. At the very least, counsel's confusion supports the fact that the Amended Notice does not comply with the Court's Orders.
In addition to the confusion generated by the Amended Notice, the Notice also appears to request information far beyond the scope of the Court's Orders. For example, in the eighth line of inquiry, plaintiffs state they will inquire about “what ... the data show[s] about all white supervisors who supervise all of the black employees/plaintiffs and the black employee putative class.” Amended Notice at 4. This line of inquiry does not refer to data produced by the Board, nor does it refer to properly-served Rule 34 document requests to which the Board allegedly did not respond. The next sentence states that the information was “requested by plaintiffs in set three discovery” but plaintiffs do not identify what “set three discovery” is. In response, defendant objected that such information regarding supervisors was never properly requested by plaintiff in a Rule 34 document request.[3]In response to the objection, plaintiffs indicated that they had no intention of seeking the narrow discovery permitted by the Court's Orders:
*5 Plaintiffs are entitled to all data for all supervisors, and what that data means. Wouldn't it be interesting if some of the better qualified and educated plaintiffs and class members were in fact better qualified than their white supervisors for the past 20 years? It certainly would explain a lot of these troublesome [sic] of an across-the-board pattern and practice of invidious racial discrimination. For all of the above reasons, the 30(b)(6) deposition topics should not be arbitrarily limited to quash facts.
ECF No. 176, Ex. E, at 15.
Furthermore, none of the arguments made by plaintiffs in their opposition to the Second Motion for a Protective Order overcome the many problems in the Amended Notice.[4] Plaintiffs' arguments generally focus on what might be permitted generally if discovery were still open and if plaintiffs had properly served a Rule 30(b)(6) Notice of Deposition in the appropriate manner while discovery was open. For example, plaintiffs argue that they are seeking information that is relevant to the issue of class certification. Regardless of whether or not that is true, the relevant question at this point in the case is whether the Amended Notice complies with the Court's Orders regarding its scope, not whether the topics noticed are within the scope of class discovery. Plaintiffs forfeited the right to seek depositions on broad-ranging topics relevant to class certification when they failed to serve a single notice of deposition during the class discovery period.
Plaintiffs' opposition also makes repeated reference to the Circuit Court's January 11, 2011 Opinion in this case. Plaintiffs aver that the Court of Appeals has spoken on the scope of discovery in this case and plaintiffs are therefore entitled to wide-ranging discovery. Although not quoted or directly cited by plaintiffs, it appears plaintiffs are referring to the portion of the Opinion that concludes that instances of class-wide discrimination “can often be proven only by a statistical comparison of the employer's treatment of the class to its treatment of non-minority employees.... Usually, such an analysis will be possible only after the employees obtain data from their employer, whether informally or through discovery.” Artis v. Bernanke, 630 F.3d 1031, 1035 (D.C. Cir. 2011). What is implicit in this statement, and entirely ignored by plaintiffs, is that the discovery must be properly requested. Because the scope of defendant's document production is not properly before the Court at this time, the Court expresses no opinion on whether such materials were properly requested by plaintiff during the class discovery period and whether those materials were fully produced by defendant. The only issue before the Court is plaintiffs' effort to serve an out-of-time 30(b)(6) deposition regarding the employment data produced by the board. Even if plaintiffs had served a notice that complied with the Court's Orders, they would not have been entitled to re-open discovery and seek additional employment data absent further leave of Court.
*6 Another compelling reason exists to grant defendant's Second Motion for a Protective Order, and that is the heavy burden placed on defendant in having to respond to plaintiffs' successive, failed attempts to serve a Rule 30(b)(6) Notice of Deposition. Defendant has been more than fair through this process; indeed, defendant has repeatedly suggested allowing plaintiffs another chance. The Court has counted over 30 pages of filings submitted by defendant on the 30(b)(6) issue alone, and that does not include the parties' exchanges of objections to plaintiffs' proposed notices and the email and written correspondence between the parties. Even now, in their Second Motion for a Protective Order, defendant suggests that plaintiffs be given ten days to revise and tailor their Amended Notice to the Court's Orders. The Court finds, however, that plaintiffs have had enough opportunities to formulate a proper 30(b)(6) Notice. Indeed, the Court made clear in its January 18, 2013 Minute Order that this would be plaintiffs' “final opportunity to serve an out-of-time Rule 30(b)(6) notice of deposition. If the revised 30(b)(6) notice fails to comply with this Order, it will be stricken with prejudice.”
In view of all of these circumstances, the Court finds, in its discretion, that plaintiffs are not entitled to any further opportunities to amend their 30(b)(6) Notice. Specifically, the Court is not persuaded that plaintiffs are any closer to serving a properly narrow Notice of Deposition in accordance with the Court's Orders, and the Court finds that allowing plaintiffs to have another chance to do so would cause undue prejudice to defendant and would be an unreasonable burden on the Court's limited resources. Nor is the Court persuaded by plaintiffs' argument that granting this motion would “result in a total denial of plaintiffs' right to discovery.” Rather, plaintiffs caused this problem for themselves by failing to fully participate in class discovery while discovery was still open.
Accordingly, for the reasons explained above, plaintiffs' Motion to Correct is DENIED and defendant's Second Motion for a Protective Order is GRANTED. It is FURTHER ORDERED that plaintiffs' amended Rule 30(b)(6) Notice of Deposition is hereby STRICKEN with prejudice.
SO ORDERED.
Footnotes
By operation of Federal Rule of Civil Procedure 25(d)(1), Chairman of the Board of Governors Bernanke is automatically substituted as the proper party in place of former Chairman Alan Greenspan.
On December 4, 2012, the Court entered an order regarding the filing of “errata.” Throughout the course of this case, plaintiffs had filed many documents titled “errata” in which plaintiffs' counsel made various line edits to his prior filings. The Court entered an order that stated “[g]oing forward, and in view of the Court's limited resources, counsel is hereby directed not to file any errata absent exigent circumstances and without seeking and obtaining leave of the Court.” Dec. 4, 2012 Minute Order. Thus, plaintiffs are required by this Order to demonstrate “exigent circumstances” that justify the filing of a corrected brief. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (district courts have broad discretion in deciding how best to manage their dockets).
The Court notes, however, that defendant did volunteer in good faith to provide a witness who would give limited testimony on the issue of supervisors, though this information had not been properly or timely requested by plaintiffs.
Although the Court is considering plaintiffs' initial opposition, ECF No. 179, instead of the proposed corrected brief, ECF 181, for the reasons explained above, the Court finds that it would not have reached a different result even if it had considered the corrected brief. As plaintiffs assert, the corrected brief makes substantially the same arguments, except that it deletes the arguments that relied on the fictitious amendment of Rule 26.