Brown v. Saint-Gobain Performance Plastics Corp.
Brown v. Saint-Gobain Performance Plastics Corp.
2022 WL 122609 (D.N.H. 2022)
January 7, 2022
Laplante, Joseph N., United States District Judge
Summary
Electronically Stored Information was not discussed, and the court denied the defendants' motion in part and granted it in part, ordering that the duration of the depositions shall not exceed four to five hours and placing scope limitations on certain depositions. The court also granted the defendants' motion to quash the deposition of Tom Kinisky and Lauren Alterman.
Additional Decisions
Kevin Brown et al.,
v.
Saint-Gobain Performance Plastics Corporation, et al
v.
Saint-Gobain Performance Plastics Corporation, et al
Civil No. 16-cv-242-JL
United States District Court, D. New Hampshire
Filed January 07, 2022
Laplante, Joseph N., United States District Judge
Kevin Brown et al., v. Saint-Gobain Performance Plastics Corporation, et al
*1 The defendants move for a protective order quashing six of the plaintiffs’ fact witness depositions, and placing certain scope limitations on two other fact witness depositions and a Rule 30(b)(6) deposition. The plaintiffs first discussed these deposition requests with the defendants around November 10, 2021. Over the following weeks, the parties conferred, and the defendants raised objections to a number of the depositions. Despite these disagreements, the plaintiffs ultimately noticed the depositions at the end of November. In their motion for a protective order, the defendants argue, in part, that several of the depositions are duplicative, and that the deposition requests are unreasonably and unjustifiably late, given that the discovery period was scheduled to end on December 31, 2021. The defendants raise additional concerns for particular depositions, including the apex deposition doctrine and attorney-client privilege issues.
“Under [Federal] Rule [of Civil Procedure] 26, the trial court is required to balance the burden of proposed discovery against the likely benefit.” Gill v. Gulfstream Park Racing Ass'n., Inc., 399 F.3d 391, 402 (1st Cir. 2005). Rule 26(b) also provides that “the court must limit the frequency or extent of discovery ... if it determines that the discovery sought is unreasonably cumulative or duplicative, or ... the party seeking discovery has had ample opportunity to obtain the information by discovery in the action ....” Fed. R. Civ. P. 26(b)(2)(C). Also important here, as noted in the court's order after the preliminary pretrial conference, the court considers the deadline for the completion of discovery to be a deadline by which discovery is to be completed, and not a deadline by which discovery is to be served. See doc. no. 110 at 1 n.1. To that end, absent unforeseen circumstances, discovery requests should be propounded well in advance of the discovery deadline, particularly if they raise complex legal or logistical issues.
On December 29, the court held a conference over the court's online videoconferencing platform, during which the parties discussed their disputes. After considering the points raised by the parties during the conference and in their written submissions—particularly the purported purpose of the depositions, the benefits and burdens of the discovery, and the timing of the requests—the court denies the defendants’ motion[1] in part and grants it in part. The court orders as follows:
1. Deposition of Chris Angier: The duration of the deposition shall not exceed four hours. The court does not impose specific scope limitations on the deposition.
2. Deposition of Edward Canning: The duration of the deposition shall not exceed four hours. The subject matter of the deposition shall be limited to Canning's knowledge regarding the Merrimack facility.
3. Deposition of Stephen Hutter: The duration of the deposition shall not exceed 4.5 hours. The subject matter of the deposition shall be limited to Hutter's knowledge on topics related to the move of the Bennington, Vermont plant to Merrimack and the relationship between the two plants.
*2 4. Deposition of Ruth (Sam) Jamke: The duration of the deposition shall not exceed five hours. The court does not impose specific scope limitations on the deposition.
5. Deposition of Tom Kinisky: The defendants argue that the deposition of Tom Kinisky, the current Chairman of the Board of Saint-Gobain's parent company and the former CEO of Saint-Gobain, should be quashed because it implicates the apex deposition doctrine—a “doctrine [that] arose from the potential abuse or harassment that a deposition notice directed at an official at the highest level of corporate governance may entail.” Gonzalez Berrios v. Mennonite Gen. Hosp., Inc., Civ. No. 18-1146, 2019 WL 4785701, at *2 (D.P.R. Sept. 30, 2019). “When determining whether to allow an apex deposition, courts should consider: ‘(1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.’ ” Id. at *3 (quoting Apple Inc. v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012)).
The court finds that, on this record, these two conditions are not satisfied. Accordingly, the court grants the defendants’ motion to quash Kinisky's deposition. This ruling is made without prejudice to the plaintiffs’ ability to request the deposition again—solely on the topic of Kinisky's knowledge of Amiel Gross's allegations in the complaint filed with the Occupational Safety and Health Administration in April 2021. The court would consider permitting such a deposition based only on an evidence-based justification. The plaintiffs’ request for an order compelling the defendants to produce Kinisky's custodial file is also denied as untimely.
6. Deposition of Robert Prohaska: The duration of the deposition shall not exceed four hours. The subject matter of the deposition shall be limited to Prohaska's knowledge of the transition from Bennington to Merrimack, including, for example, the closure of the Bennington plant, the similarities and differences between the two plants, and the aftermath of the transition.
7. Deposition of Christian Strieff: As discussed during the conference, the court understands that a delay is expected in scheduling this deposition because Strieff is a French national. The plaintiffs shall have ninety days from the date of this order, January 7, 2022, to take Strieff's deposition. If the deposition does not take place prior to April 7, 2022, the court grants the defendants’ motion to quash the deposition.
8. Deposition of Lauren Alterman: As discussed during the conference, Alterman was an attorney for Saint-Gobain before she was promoted to the position of Vice President of the Environmental, Health, and Safety Department in 2008. According to Alterman's signed certification, she continued to act as an attorney “for minor matters” for some period after the promotion. Doc. no. 338-1 at ¶ 6. The defendants contend that her deposition implicates attorney-client privilege and/or work product concerns.
“In deciding whether a deposition of opposing counsel, including in-house counsel, is appropriate, courts often use the test adopted by the Eighth Circuit in Shelton v. American Motors Corp[oration,] 805 F.2d 1323 (8th Cir. 1986).” Abiomed Inc. v. Maquet Cardiovascular LLC, 2017 WL 11625640, at *2 (D. Mass. Oct. 6, 2017). “Under that test, depositions of opposing counsel should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information other than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. (citing Shelton, 805 F.2d at 1327).
*3 During the conference, the plaintiffs asserted that certain topics they seek to discuss with Alterman are nonprivileged and unique to Alterman because they pertain to her Vice President position, and not her legal position, at Saint-Gobain. Based on this record, however, the court finds that there are potential overlaps between Alterman's legal and business roles. Thus, the plaintiffs have not made the requisite showing to justify Alterman's deposition. The court therefore grants the defendants’ motion to quash the deposition. Instead of conducting a live deposition with Alterman, the plaintiffs shall propound written questions for Alterman, to which the defendants may object on privilege or work product grounds.
9. Rule 30(b)(6) Deposition: The parties shall work together in good faith to agree upon the topics for the Rule 30(b)(6) deposition. If the parties are unable to come to a mutual agreement in a reasonable amount of time, they may seek the court's assistance. To the extent that the parties request the court's assistance, the court encourages them to utilize its informal discovery dispute procedure, as long as the parties are comfortable proceeding without traditional motions. See doc. no. 110 at 4.
As agreed upon during the conference, the parties shall confer and determine a new discovery deadline jointly; if the parties cannot come to an agreement, they shall notify the court, and the court will set a new discovery deadline. The parties may also reach out to the court as necessary to seek guidance or clarification on the above or other topics discussed during the December 29 conference.
SO ORDERED.