*1 Pending before the Court is the United States’ Motion for Protective Order Regarding Portions of 30(b)(6) Deposition Notice, filed on October 6, 2022. (Doc. 35). Defendant filed a response in opposition on October 20, 2022. (Doc. 39). With leave of Court, (Doc. 41), the United States filed a reply in further support of its motion, (Doc. 42). The matter is ripe for the Court's review.

In the interests of judicial economy and efficiency, the Court dispenses with any unnecessary recitation of the procedural posture of this case, the parties’ arguments, or the well-established legal standards governing this discovery dispute. The Court has carefully reviewed the parties’ submissions and considered each and every argument raised. Upon consideration and being otherwise fully informed, the United States’ motion is DENIED.

Defendant served Defendant's Amended Notice of Videotaped Deposition Pursuant to Federal Rule of Civil Procedure 30(b)(6) on Plaintiff. (Doc. 35-4 (typeface in original)). The Amended Notice contained a list of nine topics to be discussed at the depositions. (Id.). Plaintiff moves for a protective order over three specific topics: Areas of Inquiry Nos. 3, 5, and 6. (See generally Doc. 35).[1]

Area of Inquiry No. 3 requests that the deponent be prepared to testify as to:

(Doc. 35-4 at 5 (second alteration in original)).[2]

Area of Inquiry No. 5 requests that the deponent be prepared to testify as to “[t]he facts on which Plaintiff supports its claim that ‘from September 2014 to February 2015, Defendant Taneja working with this business partner Larry Smith caused the submission of claims to Tricare ...’ as alleged in ¶ 2 of the Complaint.” (Id. at 6).

Area of Inquiry No. 6 requests that the deponent be prepared to testify as to:

(Id.).

The crux of Plaintiff's argument is that Areas of Inquiry Nos. 3, 5, and 6 “seek not to discover facts but to have a witness testify as to the Government's analysis of the facts as to that central issue of whether [Defendant] ‘caused’ the false claims.” (Id. at 1 (emphasis in original)). Put simply, Plaintiff argues that “Defendant is not entitled to require the Plaintiff to prepare a 30(b)(6) witness to testify about how the Plaintiff intends to marshal the facts known to both sides” because this would require Plaintiff to reveal its counsel's work product as it relates to Plaintiff's theory of causation. (See id. at 1-2; see also id. at 6-8). As a result, Plaintiff requests a protective order with respect to Areas of Inquiry Nos. 3, 5, and 6. (Id. at 10).

*2 In response, Defendant essentially argues that: (1) a motion for a protective order prior to the deposition is disfavored and it would be more appropriate for the Government to assert its objections during the deposition and, if necessary, instruct the witness not to answer, (Doc. 39 at 5); (2) Defendant does not seek the Government's analysis of the facts or any interpretation of law, but rather seeks the facts underlying the discreet allegations specified in the Areas of Inquiry and the Government's claim that the entities’ relationship was an illegal kickback scheme, (id. at 5-6); (3) Defendant is entitled to seek the testimony sought, (id. at 6-7); (4) “the Government's concern that [Defendant's] proposed 30(b)(6) deposition topics ... would force it to reveal work product is vastly overstated,” (id. at 7-8); (5) Defendant need not seek the requested information through other means before requesting the information through a Rule 30(b)(6) deposition, (id. at 8); and (6) given the seriousness of the allegations, coupled with the amount of time that has passed since the alleged conduct, Defendant should be entitled to inquire into the facts underlying the allegations, (id. at 8-9).

By way of reply, Plaintiff argues, in essence, that: (1) to the extent Defendant seeks to understand the facts underlying the Government's claim that the entities’ relationship was an illegal kickback scheme, Defendant did not previously indicate this and the Government was willing to provide a witness to support the factual basis of this claim, (Doc. 42 at 1-2); (2) the contested topics seek information that “is the functional equivalent of demanding counsel's analysis of how it will make its main legal argument” and the Government objects on this basis – rather than on the bases that a defendant cannot seek the facts supporting the Government's allegations or that the information is already in the record, (id. at 2-4); and (3) Defendant's reliance on FTC v. Vylah Tec LLC, No. 2:17-cv-228-FtM-99MRM, 2018 WL 3656474, at *9 (M.D. Fla. Aug. 2, 2018) for the proposition that a motion for a protective order prior to the deposition is disfavored is misplaced, (id. at 4).

As an initial matter, to the extent Defendant argues that a motion for a protective order prior to the deposition is disfavored and it would be more appropriate for the Government to assert its objections during the deposition and, if necessary, instruct the witness not to answer, (see Doc. 39 at 5), the Court finds that in this instance it is more efficient to deal with Plaintiff's categorical objection before the depositions to avoid delaying the case further with extensive motion practice after any deposition.[3] The Court, therefore, addresses the work-product objection below.

Although not specifically challenged by Plaintiff, the Court first considers the threshold issue of relevancy. Upon review, the Court finds the challenged Areas of Inquiry relevant. More specifically, the topics appear to seek information regarding the facts underlying Plaintiff's allegations. (See Doc. 35-1 at 5-6). Such information is clearly relevant to the claims and defenses at issue in the case. Moreover, this Court has previously held that defendants may use a Rule 30(b)(6) deposition to seek the facts supporting a plaintiff's allegations. See FTC v. CyberSpy Software, LLC, No. 6:08-cv-1872-Orl-31, 2009 WL 8708856, at *3 (M.D. Fla. May 26, 2009). Additionally, as pointed out by Defendant, (see Doc. 39 at 6), courts have held that defendants “should be able to inquire into the facts upon which a plaintiff relies in support of its complaint.” A.R. ex rel. Root v. Dudek, 304 F.R.D. 668, 670 (S.D. Fla. 2015).

Turning to the crux of Plaintiff's objection to the specified Areas of Inquiry—i.e., that the topics “seek not to discover facts but to have a witness testify as to the Government's analysis of the facts as to that central issue of whether [Defendant] ‘caused’ the false claims,” (Doc. 35 at 1 (emphasis in original))—the Court notes that there are decisions within this District both granting and denying protection relating to Rule 30(b)(6) depositions and involving similar objections. Compare U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31, 2012 WL 3537070, at *5 (M.D. Fla. Aug. 14, 2012), with CyberSpy Software, 2009 WL 8708856, at *3.

*3 For instance, in United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, 6:09-cv-1002-Orl-31, 2012 WL 3537070, at *5 (M.D. Fla. Aug. 14, 2012), United States Magistrate Judge Thomas B. Smith denied the defendant's motion to compel the Government to designate a Rule 30(b)(6) witness. 2012 WL 3537070, at *5. In denying the motion, Judge Smith noted that the Government had objected to deposition topics asking it to produce a witness to testify about how it made legal determinations, the “identification and factual explanation” of “laws, regulations, polices and guidance” on issues of law, and to provide its “factual interpretation of laws, regulations, polices and guidance” on a legal issue. Id. at *4. In considering these requests, Judge Smith found that the clear point of the topics was to get the United States “to disclose how they have interpreted and applied the law and government policies to the facts of th[e] case” and, therefore, the use of the word “factual” was “of no consequence.” Id. Judge Smith reasoned that if the United States were required to produce a witness in response to these topics, “it would necessarily have to provide its legal theories and positions on important issues” and “would also have to reveal what facts its attorneys believe apply to these issues and how counsel intend to marshal the facts to support the United States’ position.” Id. Judge Smith, therefore, found that this information is opinion work product and protected by the work-product privilege. Id. (citations omitted).

Given the nature of the information sought, Judge Smith also rejected the approach of other judges suggesting that the United States should produce a witness and then have counsel interpose objections and/or instruct the witness not to answer when appropriate because “[t]his approach risks the disclosure of privileged information, it would increase the burden on the United States to prepare a witness, and it would increase the burden on this Court which would likely have to make many otherwise unnecessary decisions about issues of work product privilege.” Id. As a result, Judge Smith upheld the United States’ objections and denied the motion to compel. Id. at *5.

On the other hand, in F.T.C. v. CyberSpy Software, LLC, No. 6:08-cv-1872-Orl-31, 2009 WL 8708856, at *3 (M.D. Fla. May 26, 2009), United States Magistrate Judge Gregory J. Kelly denied a motion for a protective order filed by the plaintiff to quash the defendants’ Rule 30(b)(6) deposition notice. 2009 WL 8708856, at *3. In denying the motion, Judge Kelly found that the issue – no matter how it was framed by the plaintiff – was whether the defendants were entitled to a Rule 30(b)(6) deposition of a governmental agency regarding the facts supporting the agency's case. Id. Judge Kelly answered that inquiry in the affirmative. Id. In reaching this conclusion, Judge Kelly held that the defendants were “entitled to discovery of the facts supporting the [plaintiff's] claims.” Id. (citation omitted). Thus, Judge Kelly denied the plaintiff's attempt to quash the deposition notice. Id.

Although the jurists came to different conclusions, the decisions above can be harmonized. Indeed, a key difference between these cases is the information sought by the deposition notices. Compare Baklid-Kunz, 2012 WL 3537070, at *5, with CyberSpy Software, 2009 WL 8708856, at *3. In Baklid-Kunz, the deposition topics sought testimony from the Government about (1) how it made legal determinations, (2) the “identification and factual explanation” of “laws, regulations, polices and guidance” on issues of law, and (3) its “factual interpretation of laws, regulations, polices and guidance” on legal issues. See 2012 WL 3537070, at *5. The Court granted protection because the information sought could only be considered work product. Id. Conversely, in CyberSpy Software, the Court denied the plaintiff's request for protection when the defendants merely sought to discover the facts supporting the plaintiffs’ claims. See 2009 WL 8708856, at *3.

A review of the Amended Notice here shows that Defendant's topics appear to seek the facts supporting Plaintiff's claims, not opinion work product by Plaintiff. (See Doc. 35-4 at 5-6). Importantly, unlike Baklid-Kunz, the questions do not seek testimony from Plaintiff that can only be considered work product. See 2012 WL 3537070, at *5. For instance, the deposition topics do not appear to require the deponent to testify and to provide legal theories and positions on important issues. See id. Instead, Defendant's questions here appear specifically tailored to discovering facts regarding Plaintiff's factual allegations as alleged in the Complaint. (See Doc. 35-4 at 5-6); see also CyberSpy Software, 2009 WL 8708856, at *3. As a result, the Court finds that Defendant is entitled to depose Plaintiff's representative on these topics. See CyberSpy Software, 2009 WL 8708856, at *3.

*4 Because the Court finds that Defendant is entitled to depose Plaintiff's representative on these topics, the Court finds Plaintiff's motion (Doc. 35) is due to be denied. The Court clarifies, however, that nothing in this Order is intended to prevent Plaintiff's counsel from objecting to discrete questions on privilege grounds or work product, if proper. Put differently, while the Court will allow the deposition to move forward without any protective order, counsel for Plaintiff may – as always – object to, and instruct a witness not to answer, any question that seeks privileged information. If necessary, either party may file an appropriate motion directed at any such objection after the deposition concludes. Any subsequent motion must comply fully and meaningfully with this Court's Local Rules, including M.D. Fla. R. 3.01(g), and must be filed within fourteen (14) days of the date of the deposition. Failure to timely file a motion may result in the Court summarily denying the motion.

As a final matter, the Court briefly addresses the procedural posture of the case, as it relates to the subject deposition. As the parties are aware, discovery is closed in this case, (see Doc. 55 at 1), and it is unclear to the Undersigned whether the Rule 30(b)(6) deposition was conducted, in part, or whether the parties postponed the deposition, in full, until after the Court ruled on the motion sub judice. Regardless, the Court will require Plaintiff to provide dates for the Rule 30(b)(6) deposition, which must occur no later than March 31, 2023, within seven (7) days of the date of this Order. Within fourteen (14) days of this Order, the parties must confer and set a date for the Rule 30(b)(6) deposition. If the parties postponed the deposition until after the Court ruled on the motion sub judice, the deposition may proceed as to all topics included in the Amended Notice, unless the parties have otherwise agreed. If the deposition was conducted in part, the deposition may proceed only as to Areas of Inquiry Nos. 3, 5, and 6.

The Court clarifies that nothing in this Order serves to re-open discovery in this case for any other purpose. Instead, the Court extends the discovery deadline for the limited purpose of allowing any portion of the Rule 30(b)(6) deposition that has not yet occurred to be conducted and to allow the filing of any motions related to that deposition. No other discovery may be conducted absent further Court order.

Accordingly, the Court ORDERS that:

DONE and ORDERED in Tampa, Florida on February 2, 2023.