*1 As directed by the Court, Mr. Barker and Beacon Hill have made a supplemental submission in support of their request for an order requiring Insight Global to produce a Rule 30(b)(6) designee (Mr. Lowance or another representative) for further deposition on noticed Topics 5, 11, 12, 13 and 15. That supplemental submission reflects that the parties have slightly narrowed their dispute, and have conferred further about the bases for their respective positions.

Having considered the parties' original submission (Dkt. No. 230) and their supplemental submission (Dkt. No. 239), as well as the arguments presented at the hearing on April 16, 2019, the Court grants in part and denies in part Mr. Barker's and Beacon Hill's request for further deposition testimony, as set forth in detail below.

I. SUMMARY OF THE DISPUTE

The question presented by this dispute is whether the deposition questions Mr. Lowance did not answer were within the scope of the deposition topics for which he was designated, and if so, whether Insight Global's privilege/work product objections to those questions were proper.[1] Insight Global designated Mr. Lowance for the following topics:

Dkt. No. 230 at ECF 11-12.

Of the 93 deposition questions in dispute, Mr. Barker and Beacon Hill have withdrawn three questions (#9, #79, #83), and appear to concede that an additional eight questions (#15, #76, #77, #78, #80, #81, #82, #92) are outside the scope of the noticed topics.[2] See Dkt. No. 239 at ECF 2, 9, 27, 28, 30. Insight Global has offered to provide responses to eleven questions, including one that is concededly outside the scope (#5, #7, #8, #11, #12, #13, #14, #44, #45, #81 and #87), albeit in the form of written answers, not deposition testimony. See Dkt. No. 239 at ECF 2, 33. The 72 questions that remain in dispute are reproduced in the chart at the end of this order. For each question, the Court first considers whether the question is fairly within the scope of the noticed deposition topic, and for those that are, the Court then considers whether Insight Global's privilege/work product objection is well taken.[3]

II. DISCUSSION

A. Questions Outside the Scope of the Noticed Deposition Topics

*2 Of the 72 disputed questions, Insight Global agrees that thirteen questions are indeed within the scope of one or more noticed deposition topics (#20, #21, #23, #24, #31, #61, #62, #63, #64, #65, #67, #85, #86), and it raises only privilege/work product objections to those questions. For all but five of the remaining disputed questions, Mr. Barker and Beacon Hill rely on Topic 15 for their argument that the question is within the scope of a noticed topic. Accordingly, the Court begins with a consideration of the scope of Topic 15.

1. Topic 15

At its broadest, Topic 15 is directed to “Insight's enforcement of non-solicitation of customers provisions, non-solicitation of employees provisions and non-compete provisions against its California employees.” Mr. Barker and Beacon Hill construe this topic broadly; Insight Global construes it more narrowly. The parties appear not to have conferred about their differing views of the scope of the topic in advance of the deposition.

A reasonable interpretation of the scope of this topic is informed by both the further elaboration of the topic in the “including without limitation” clause, as well as the other topics in the deposition notice for which Insight Global produced other designees. The Court agrees that Topic 15 is not limited to “letters written to former employees about their contractual obligations to IG” (Dkt. No. 230 at ECF 5), as Insight Global contends, but encompasses more generally efforts by Insight Global to enforce non-solicitation and non-compete obligations against its California employees. However, it does not include, for example, Insight's practice of including such obligations in its agreements with California employees, which is the subject of a different topic.

Applying this interpretation, the Court finds that the following disputed questions are within the scope of Topic 15: #3, #4, #6, #22, #25, #27, #32, #33, #36, #37, #38, #39, #40, #41, #47, #48, #50, #60, #75. As to those topics, most of the disputed questions are phrased in a manner that suggests they are seeking the personal views of the deponent; however, the topic is limited to positions taken or information known to Insight Global. Subject to the Court's decision on the privilege/work product objections, Mr. Barker and Beacon Hill must reformulate these questions so that they are addressed to Insight Global and not Mr. Lowance personally, or whomever Insight Global chooses to designate. As discussed below, such reformulations also may be necessary to avoid privilege/work product objections.

The following disputed questions are outside the scope of Topic 15, and Insight Global need not produce a designee to testify about them: #1, #2, #10, #16, #17, #18, #19, #26, #28, #29, #30, #34, #35, #42, #43, #46, #49, #54, #55, #56, #57, #58, #59, #66, #68, #69, #70, #71, #72, #73, #74, #88, #89, #91, #93.

2. Topics 5, 11, 12, 13

Topic 5 concerns the Second Amended and Restated Insight Global, LLC 2013 Incentive Unit Plan (“IUP”), and Topics 11, 12 and 13 concern Insight Global's decision to not pay Mr. Barker his accumulated units of value under the IUP. The Court finds that disputed question #84 is within the scope of Topic 5, and disputed question #90 is within the scope of Topics 11, 12 and 13. As to those topics, subject to the Court's decision on the privilege/work product objections, Mr. Barker and Beacon Hill must reformulate these questions so that they are addressed to information known to Insight Global, and not the individual deponent.

The following disputed questions are outside the scope of Topics 5, 11, 12 and 13, and Insight Global need not produce a designee to testify about them: #51, #52, #53.

B. Questions Barred by the Attorney-Client Privilege or Work Product Doctrine

*3 As indicated in the summary chart below, there are 34 questions that the Court has determined (or Insight Global has agreed) fall within the scope of a noticed topic. The Court now turns to Insight Global's privilege and work product objections to those questions.

It appears from Insight Global's portion of the joint submission that most of its privilege and work product objections are closely tied to Mr. Lowance's role as general counsel to Insight Global, and the fact that most of the questions at issue were phrased in a manner suggesting that Mr. Barker and Beacon Hill were seeking discovery of Mr. Lowance personally. While it is not improper to designate counsel as a company representative, that designee's role as an attorney cannot be used to insulate from discovery facts known to the company. Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (“The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney[.]”) At the same time, Mr. Barker and Beacon Hill may not compel personal deposition testimony of Mr. Lowance in the guise of seeking discovery of Insight Global under Rule 30(b)(6).

The Court concludes that the following deposition questions, if reformulated to seek information in the possession, custody or control of Insight Global, are principally directed to obtaining factual information of Insight Global and not communications subject to the attorney-client privilege or information subject to the attorney work product doctrine: #20, #21, #22, #23, #32, #36, #37, #38, #39, #40, #41, #47, #48, #50, #60, #61, #62, #64, #67, #75, #84, #86, #90. By way of example, question #20 might be reformulated as follows: “Did any Insight Global representative ever discuss with any Insight Global employees that Insight Global was not going to enforce any longer the non-solicitation of customers and clients provision?”

It may well be that complete answers to some of these reformulated questions would require the deponent to reveal privileged information of the company. Nothing in this order precludes such an objection on this ground during the further Rule 30(b)(6) deposition. For example, question #36 might be reformulated as follows: “Why does Insight Global not point out [in the document under discussion], as it does in the IUP, that certain provisions do not apply to California employees?” An answer to that question might be purely factual—e.g., a change or difference in policy—or it might indeed require the deponent to reveal advice of counsel, or both. Nothing in this order requires Insight Global to reveal advice of counsel; however, it must respond with factual information known to the company to the extent the question calls for such information, regardless of the source of those facts.

A number of the remaining deposition questions do not appear to call for factual information, but instead seek Insight Global's contentions or positions on matters having to do with its enforcement of non-solicitation and non-competition provisions. Insight Global does not object to these questions on the ground that deposition testimony is not an appropriate means of discovering its contentions. However, it does object that several questions improperly seek disclosure of Insight Global's legal conclusions, legal strategy, and/or the advice of counsel. The Court concludes that the following deposition questions, if appropriately reformulated, are principally directed to obtaining Insight Global's contentions, as opposed to legal conclusions, legal strategy or advice of counsel: #3, #4, #6, #24, #25, #27, #31, #33. For example, question #3 might be reformulated as follows: “How does Insight Global contend the noncompete covenant should be interpreted?” And, question #24 might be reformulated as follows: “Does Insight Global contend that Ms. Gravino's calling on at least one account with whom she had contact while working at Insight Global is a violation of the at will employment agreement?” The Court expects the answers to these questions would not implicate any privilege or work product concerns; however, further questions probing why Insight Global so contends might well implicate such concerns. Nothing in this order requires Insight Global to reveal advice of counsel or attorney work product in response to such further questions.

*4 With respect to question #63, Mr. Barker and Beacon Hill may not inquire about, or premise their question on an assertion of, Insight Global's or its designee's view of a decision of the California Supreme Court, and it may not seek an explanation for why Insight Global does not send letters of non-enforcement to its former employees, as that question appears to seek information that is protected from disclosure by the attorney-client privilege. Likewise, with respect to question #65, Mr. Baker and Beacon Hill may not inquire about Insight Global's legal analysis regarding what California law does and does not prohibit. Finally, with respect to question #85, Mr. Barker and Beacon Hill may not inquire as to whether committees within Insight Global have a conflict of interest, as that question seems designed to elicit a purely legal conclusion that likely also implicates attorney-client privilege. Mr. Barker and Beacon Hill may not inquire further about questions #63, #65 and #85.

III. CONCLUSION

Mr. Barker and Beacon Hill may take further deposition testimony of Insight Global regarding the following questions, subject to the Court's direction that questions must be directed to Insight Global and not to an individual deponent: #3, #4, #6, #20, #21, #22, #23, #24, #25, #27, #31, #32, #33, #36, #37, #38, #39, #40, #41, #47, #48, #50, #60, #61, #62, #64, #67, #75, #84, #86, #90. Insight Global may produce Mr. Lowance for further deposition or may produce another designee or designees to answer these questions. This further deposition questioning will be limited to a total of 2.5 hours. Mr. Barker and Beacon Hill may ask reasonable follow up questions to follow up on answers to the permitted questions, but they may not inquire as to any matters the Court has concluded are outside the scope of a noticed topic or subject to valid privilege/work product objections. The parties shall cooperate to promptly schedule the further deposition.

IT IS SO ORDERED.

Attachment