Haney v. Kavoukjian
Haney v. Kavoukjian
2020 WL 12762509 (D.S.C. 2020)
August 3, 2020
Gergel, Richard M., United States District Judge
Summary
The court found that the deposition notice did not seek testimony that would invade attorney-client privilege or the work product doctrine, and that White & Case's blanket assertion of privilege did not satisfy the burden of demonstrating that privilege applied. The court also denied White & Case's motion for protective order and instructed them to promptly designate a 30(b)(6) witness to testify as to the facts and documents supporting its defenses.
Katherine St. John Haney and James Byrnes, as Personal Representatives of the Estate of Muriel T. Farr, Plaintiffs,
v.
Michael Kavoukjian, Esq. and White & Case, LLP, Defendants
v.
Michael Kavoukjian, Esq. and White & Case, LLP, Defendants
Civil Action No. 2:19-2098-RMG
United States District Court, D. South Carolina, Charleston Division
Filed August 03, 2020
Gergel, Richard M., United States District Judge
ORDER
*1 This matter is before the Court upon Plaintiffs’ motion to compel Defendant White & Case to produce a 30(b)(6) witness. (Dkt. No. 33). For the reasons stated below, Plaintiffs’ motion is granted.
I. Background
In this case, Katherine St. John Haney and James Byrnes, Personal Representatives of the Estate of Muriel T. Farr (“Plaintiffs”) bring claims for professional negligence and breach of fiduciary duty against Michael E. Kavoukjian and White & Case, LLP (“Defendants”). For a number of years prior to this litigation, Defendant Kavoukjian served as the estate planning attorney for the late Muriel T. Farr and her husband, the late Sims C. Farr. (Dkt. No. 1 at ¶ 11); (Dkt. No. 7). Plaintiffs allege that on March 29, 2016, Defendant Kavoukjian filed a Statement of Creditor's claim against the estate of Muriel T. Farr in the Berkeley County Probate Court at the request of the children of Sims C. Farr. (Dkt. No. 1 at ¶ 20). In addition, Plaintiffs allege that on August 29, 2016, the children of Sims C. Farr initiated a lawsuit against the estate of Muriel T. Farr (“probate lawsuit”). (Id. at ¶ 24). Plaintiffs allege Defendant Kavoukjian participated in the probate lawsuit until it was resolved, failed to act in the best interest of his former client, and breached duties of loyalty and confidentiality. (Id. at ¶ 25, 29-31). Defendants assert that at all times relevant during the Complaint, they complied with their legal and professional duties. (Dkt. No. 7 at ¶ 33). Defendants also assert they exercised reasonable professional judgment and assert numerous affirmative defenses such as waiver, latches, and unclean hands. (Id. at ¶¶ 43, 34).
Plaintiffs served Defendant White & Case with a 30(b)(6) deposition notice on April 22, 2020. (Dkt. No. 33-1). The deposition notice contains sixteen matters of examination that seek, “all facts and documents upon which White & Case bases its contentions and opinions” with regard to Defendants’ assertion in the Answer they complied with all legal and professional duties and relating to Defendants’ various affirmative defenses contained in Paragraphs 33-48 of the Answer. (Id. at 2-5). On June 22, 2020, Defendants’ counsel sent Plaintiffs’ counsel a letter objecting to the 30(b)(6) deposition notice on the grounds each of the sixteen matters of examination seek privileged information and are overly broad, unduly burdensome, and unreasonable. (Dkt. No. 33-2). On July 1, 2020, Plaintiffs filed the instant motion to compel, seeking an Order from the Court compelling White & Case to designate a 30(b)(6) witness to testify about the facts and documents outlined in the deposition notice. (Dkt. No. 33-1). White & Case filed a response in opposition indicating it would not produce a 30(b)(6) witness as the matters of examination seek privileged information, are overly broad, and unduly burdensome. (Dkt. No. 35). In addition, White & Case seeks an Order of Protection pursuant to Federal Rule of Civil Procedure 26(c)(1). Plaintiffs filed a reply. (Dkt. No. 36). Plaintiffs’ motion to compel is ripe for the Court's review.
II. Legal Standard
*2 Parties to civil litigation may obtain discovery regarding “any nonprivileged matter that is relevant to any party's claim or defense” so long as the information is “proportional to the needs of the case...” Fed. R. Civ. P. 26(b)(1). The scope of discovery permitted by Rule 26 is designed to provide a party with information reasonably necessary to afford a fair opportunity to develop his or her case. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir. 1992) (noting that “the discovery rules are given ‘a broad and liberal treatment’ ”.) “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by forbidding or limiting the scope of discovery. Fed. R. Civ. P. 26(c)(1). The court “must limit the frequency or extent of discovery ... if it determines that 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)(i). “The scope and conduct of discovery are within the sound discretion of the district court.” Columbus–Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995); see also Carefirst of Md, Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 402 (4th Cir. 2003) (“Courts have broad discretion in [their] resolution of discovery problems arising in cases before [them].”) (internal quotation marks omitted). To enforce the provisions of Rule 26, under Federal Rule of Civil Procedure 37, a “party may move for an order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1).
Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that, “a party may name as a deponent a public or private corporation, a partnership, an association, a government agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization 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).
III. Discussion
Plaintiffs’ deposition notice contains sixteen matters of examination that seek “all facts and documents upon which White & Case bases its contentions and opinions” set forth in Paragraphs 33-48 of Defendants’ Answer. (Dkt. No. 33-1). Paragraphs 33-48 of Defendants’ Answer contains Defendants’ affirmative defenses to Plaintiffs’ legal malpractice and breach of fiduciary duty allegations. (Dkt. No. 7). In its response to Plaintiffs’ motion to compel, White & Case indicates it will not produce a 30(b)(6) witness on the grounds the matters of examination seek information that is protected by attorney-work product and that the matters are overly broad and unduly burdensome. (Dkt. No. 33-2). In addition, in its response, White & Case moves for an Order of Protection from the Court pursuant to Federal Rule of Civil Procedure 26(c)(1) to the extent Plaintiffs’ 30(b)(6) notice seeks work product and/or privileged information. (Dkt. No. 35 at 1).
Materials that have been prepared by an attorney in anticipation of litigation are attorney work product that may be protected from discovery. In re Grand Jury Proceedings, Thursday Special Grand Jury, 33 F.3d 342, 348 (4th Cir. 1994). Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the production and protection of attorney work product. Rule 26(b)(3) states:
“Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) ... If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.”
Fed. R. Civ. P. 26(b)(3)(A)-(B). Work product may be fact work product or opinion work product. In re Allen, 106 F.3d 582, 607 (4th Cir. 1997). While fact work product “is discoverable upon a showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship,” opinion work product, which contains an attorney's mental impressions, conclusions, opinions, or legal theories, “enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Id.
*3 White & Case argues that Plaintiffs’ deposition notice would require it to produce an attorney witness who would be required to select and compile documents from the evidence contained in the voluminous record of ten thousand plus documents, in violation of the opinion work product doctrine. (Dkt. No. 35 at 2-4). The Fourth Circuit has recognized that the choice and arrangement or “selection and compilation” of documents and evidence in anticipation of litigation constitutes work product that is immune from discovery. In re Allen, 106 F.3d 582; Shelton American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986) (“[i]n cases more crucial than legal research ... We believe [counsel's] selective review of [her clients’] numerous documents was based on her professional judgment of the issues and defenses involved in this case.”); Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985) (“We believe that the selection and compilation of documents in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product.”).
Although these cases stand for the proposition that the choice and arrangement of documents may be protected as attorney work product, courts have rejected a party's assertion of privilege or work product protection prior to a Rule 30(b)(6) deposition unless the requested topics, on their face, call for testimony invading the attorney-client privilege or attorney work product doctrine. McBridge v. Medicalodges, Inc., 250 F.R.D. 581, 587 (D. Kan. 2008); S.E.C. v. Kramer, 778 F. Supp. 2d 1320, 1328 (M.D. Fla. 2011) (explaining that permitting [plaintiff] to assert a blanket claim of privilege in response to a Rule 30(b)(6) notice creates an unworkable circumstance in which a defendant loses a primary means of discovery without a meaningful review of his opponent's claim of privilege.)
White & Case argues Plaintiffs’ matters of examination are a veiled attempt to learn legal strategy in violation of the opinion work product doctrine. (Dkt. No. 34 at 2). There is a split amongst courts as to whether to allow parties to use 30(b)(6) depositions to explore facts underlying legal claims and theories. Radian Asset Assur., Inc. v. College of the Christian Bros. of New Mexico, 273 F.R.D. 689, 691 (D.N.M. 2011) (noting split but allowing 30(b)(6) deposition).[1] Plaintiffs have indicated they are not seeking disclosure of documents revealing White & Case's trial strategies or any documents legitimately within the purview of the work product doctrine. (Dkt. No. 33 at 6). Upon a review of the deposition notice, it does not on its face, seek testimony that would invade attorney client privilege or the work product doctrine. (Dkt. No. 33-1 at 2-5). It would appear Plaintiffs are attempting to uncover facts underlying White & Case's claims and defenses. White & Case's blanket assertion of privilege does not satisfy the burden of demonstrating that privilege applies. The Court recognizes that during the deposition, specific questions could elicit privileged or protected information, but at this juncture it is premature to assume that will happen. In addition, the Federal Rules of Civil Procedure provide a mechanism for White & Case to make contemporaneous objections on the basis of privilege during the course of the deposition. Fed. R. Civ. P. 30(c)(2).
*4 Last, White & Case argues the matters of examination are overly broad and unduly burdensome. (Dkt. No. 34). Upon a review of the deposition, the Court finds the matters of examination are not vast, open ended, or vague. The notice contains sixteen topics that are limited to the relevant factual disputes in this lawsuit and Defendants’ asserted defenses. (Dkt. No. 33-1 at 2-5). Further, White & Case's general assertion that the deposition notice is overly broad and unduly burdensome fails to specify how the matters are overly broad, burdensome, or oppressive. White & Case has not established that privilege applies to the testimony sought, or good cause for the Court to enter an Order of Protection. As such, White & Case is instructed to promptly designate a 30(b)(6) witness to testify as to the facts and documents supporting its defenses as identified in Plaintiffs’ deposition notice. (Dkt. No. 33-1).
IV. Conclusion
For the reasons stated above, Plaintiffs’ motion to compel (Dkt. No. 33) is GRANTED. Defendant White & Case's motion for protective order is DENIED. (Dkt. No. 35). AND IT IS
SO ORDERED.
Footnotes
“Courts have split whether to allow parties to use 30(b)(6) depositions to explore facts underlying legal claims and theories. Compare JPMorgan Chase Bank v. Liberty Mut. Ins. Co., 209 F.R.D. at 362 (denying discovery request seeking “defendants’ mental impressions, conclusions, opinions, and legal theory”) and SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y.1992) (asserting that “the proposed Rule 30(b)(6) deposition constitutes an impermissible attempt by defendant to inquire into the mental processes and strategies of the SEC”); with EEOC v. Caesars Entm't, Inc., 237 F.R.D. 428, 432–34 (D.Nev.2006) (denying “defendant's request for a protective order to limit the scope of Rule 30(b)(6) deposition questioning to preclude inquiry into the factual bases for defendant's asserted position statements and affirmative defenses”), and In Re Vitamins Antitrust Litigation, 216 F.R.D. 168, 171–74 (D.D.C.2003) (allowing 30(b)(6) facts and admissions in corporation's antitrust submission to European Commission, stating: “Bioproducts argument that the Rule 30(b)(6) discovery is unnecessary and duplicative is without merit.”).” Radian Asset Assur., 273 F.R.D. at 691-92. (“finding that the better rule is to allow parties to craft 30(b)(6) inquiries similar to contention interrogatories, because this rule will ultimately lead to fewer disputes about what subject matter is permitted in 30(b)(6) depositions and advances the policy underlying the rules favoring disclosure of information.”)