The subject Rule 30(b)(6) Notice of Taking Deposition Duces Tecum represents a bit of a sidetrack diversion from the planned substantive deposition discovery program established in this case. It came about because B & G failed to appropriately respond to an earlier Request for Production of Documents submitted by the defendants. More specifically, during a June 25, 2008 evidentiary hearing on the matter, the Court specifically found the Plaintiffs failed to produce certain requested electronically stored documents “in native format with associated metadata”. Transcript of Proceedings, Discovery Conference Before the Honorable Karia R. Spaulding, United States Magistrate, June 25, 2008 at 196. (Hereinafter, “Transcript”). Going further, the court also found that B & G personnel, “deliberately manipulated the electronically stored information in such a way as to withhold from the defendants that information that had been requested, specifically metadata”. id.

*2 To rectify this situation the Court ruled, in part, that B & G would have until July 11, 2008 to produce all the requested format and metadata information at whatever cost in time and effort. The Court further allowed the Defendants to schedule and take up to three additional depositions and one Rule 30(b)(6) deposition of a B & G representative-which would not be counted against the number of depositions allowed to each party in the planned substantive discovery program-to inquire further about the Plaintiffs' faulty document production. According to the transcript of the proceeding which records the Order verbally rendered by the Court, the stated purpose for these additional depositions was, “... to determine how the information gathered and presented in response to these (R)equests for (P)roduction as of this date occurred, what was searched, that kind of thing”. id at pp 199-200. The Rule 30(b)(6) deposition was allowed by the Court as part of this process, “... to determine the current architecture (of the B & G computer system), that sort of thing”. id. According to the recorded dialogue between the court and the parties immediately prior to the entry of the Order authorizing this additional discovery, the overall objective for the depositions requested was also described as;

The Court then concluded by noting the subject depositions, “ought to be scheduled before the end of July”. id. at p. 200

Although there has been both continued resistance from B & G (in the form of an unsuccessful appeal of the Court's directive to produce the documents by July 11) and some logistical issues with locating and turning over the information requested in time to meet the deadline imposed by the Court, it appears some progress has now been made toward giving the Defendants the data they want. The plaintiffs have now apparently produced computer information and materials representing a substantial portion of the missing information. The additional deposition discovery authorized to determine how the faulty production occurred and to learn more about the electronically stored data systems used by B & G, however, has run into a snag.

On July 16, 2008, 21 days after the June 25 hearing authorizing that discovery, the Defendants collectively served a “Notice of Taking Deposition Duces Tecum” on Plaintiffs calling for the subject Rule 30(b)(6) deposition to be held on July 29-30, 2008. In the 12 days available to them to respond, the Plaintiffs were asked to find one or more Corporate Representatives having the most knowledge of over 100 discrete topics involving the B & G computer system. In addition, the Rule 30(b)(6) Notice included a directive for the production of documents related to the B & G computer system falling in 102 defined categories. In response, B & G has filed the present, “Emergency Motion for Protective Order” seeking to prevent both the taking of the deposition and the production of the requested documents.

*3 B & G offers two arguments in support of its Motion for Protective Order;

For the reasons set forth below, it is the Special Master's Ruling and Recommendation that this motion be DENIED in part, and GRANTED in part. The Motion for Protective Order seeking to cancel the scheduled depositions is DENIED. The Rule 30(b)(6) deposition currently scheduled for July 29-30, 2008 shall proceed as planned and B & G shall duly locate and present whatever corporate representative(s) they have who possess the most knowledge of the areas listed in the Defendants' Notice. The Motion for Protective Order seeking to quash or extend the directive to produce documents in connection with the depositions is GRANTED. The portion of the Notice requiring production of 102 categories of documents in 12 days is unreasonable and unduly burdensome, and B & G shall not be required to comply with its terms on July 29-30, 2008.

The Rule 30(b)(6) Deposition

B & G's principal argument supporting the entry of a Protective Order that would effectively disallow the Rule 30(b)(6) deposition(s) scheduled for July 29-30, 2008 is that the testimony has already been taken.

On July 10, 2008, some defendants initiated and concluded another group of Rule 30(b)(6) depositions taken of certain representatives of another corporate entity not a party to this action, but affiliated with the Plaintiffs through common ownership, offices and employees-known as Ocean Waters Investments, LLC (“OWI”). The events leading to this series of depositions began with a non-party discovery subpoena being served on OWI by the Defendants after Counsel for B & G suggested that OWI played some role in providing management services in the day-to-day operations of the certain B & G companies and, accordingly, may have possession of certain documents pertaining to those business operations that were being sought by the Defendants. After OWI failed to respond to that subpoena in any fashion, the Defendants filed a Motion to Compel and the Court entered another order directing, among other things, that OWI produce a corporate representative with the most knowledge on how OWI maintains its business records in both paper and electronic form-in short, someone who can explain how OWI keeps and maintains its electronically stored information and documents and what they generally involve. One of the witnesses produced by OWI on July 10 purportedly met that requirement and, indeed, testified to some extent on how OWI maintained and kept its electronically stored information. As it turned out, however, this witness also revealed that OWI and B & G operate from and with the same computer systems and use the same employees to maintain and operate those systems. B & G thus notes, (1) the designated representative with knowledge of the B & G computer system would be the same person who has already testified with respect to the OWI system and, (2) Defendants have already deposed that witness thus, (3) it would be unduly burdensome to require the same witness to appear and testify again.

*4 It seems apparent from the testimony of the OWI witness that there is only one computer system servicing all the affiliated B & G companies. As a practical matter, therefore, it may well be true that the testimony of the same witness now designated as a B & G representative will involve a repetition of testimony already given in the OWI deposition. The Court, however, has specifically ordered B & G to comply with a Rule 30(b)(6) notice for this purpose. Given the overall circumstances of this case, I am reluctant to intrude upon that directive. It may well be, for example, that some specific questions asked from B & G's point of view may be different than, and may produce different answers than, those presented and answered from the OWI point of view. More importantly, however, and as previously noted, the overall purpose of the Rule 30(b)(6) deposition of a B & G representative is to shed more light on the circumstances behind the failed Response to Defendants' Request to Produce-to define and understand how and what electronic information is stored in B & G's computer systems in order to determine what could and should have been produced to appropriately comply with the Defendant's Request for Production. The overall purpose for the OWI depositions, on the other hand, was to discover if they maintained separate and independent electronic files that would also be responsive to the Defendants' Request. Under the circumstances, I am unable to conclude one would, or should, necessarily substitute for the other.

Accordingly, the Motion for Protective Order with respect to blocking the Rule 30(b)(6) Depositions of a B & G representative is DENIED. B & G shall produce whatever corporate representative(s) they have who can respond to the Notice.

Rule 30(b) (6) Notice Duces Tecum Document Production

The accompanying document request, however, is a different matter. At the outset, B & G argues, and I agree, they have not been afforded adequate time to appropriately respond to the very substantial and extensive list of documents requested by the Defendants. The Court Order authorizing the Rule 30(b)(6) Deposition of a B & G representative on was issued June 25, 2008. Assuming the Court Order also required these depositions to be completed on or before July 31, 2008[2], the Defendants had over 30 days to make the Plaintiffs aware of their desire to acquire this documentary data. The subject Rule 30(b)(6) Notice, however, was not issued until July 16, 2008, some 21 days after the Order and leaving the Plaintiff's only 12 days to comply or face yet another Motion to Compel. Given the very substantial scope of the production requested, 12 days is simply not enough time.

Although not specifically raised in the Motion for Protective Order, the document production aspect of the subject Rule 30(b)(6) Notice is also troubling in two other respects. First, while the Court did authorize a Rule 30(b)(6) deposition to be taken of a B & G corporate representative on the subject of their computer system, there was no specific mention of coupling that notice with a “daces tecum” document request. It is questionable, therefore, whether the demand for documents was contemplated in authorizing this particular line of inquiry within the time frames established. Additionally, it would appear the broad and all encompassing scope of documents requested by Defendants may, at this time, significantly exceed the overall objectives established for conducting this line of inquiry. While these two concerns may or may not create an independent basis for objecting to the Notice, it seems clear there is a more efficient and focused way of approaching whatever production of documents might be considered necessary in connection with this specific line of inquiry. If appropriate deposition discovery concerning the “architecture” of the B & G computer system reveals the existence of specific documentation that would be helpful in understanding how that computer system works and what information contemplated by the Defendants' Request for Production might be stored in that system, perhaps that might be the better time to pursue its production.

*5 The substantive discovery program established in this case seems formidable enough. Absent some significant developments, it does not seem productive to allow this particular discovery sidetrack to become the main thoroughfare.

Accordingly, the Motion for Protective Order as to the documentation production contained in the subject Notice is GRANTED. Plaintiffs shall not be required to produce the documents requested in connection with these depositions.

DONE and Ordered this 28th day of July, 2008.

Footnotes