Dilatory Objections to Corporate Designee Topics Were Too Late; “Blanket” De-Designation Request Was Denied

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In U.S. v. Novo Nordisk, Inc., 2024 WL 4519962 (W.D. Wash. Oct.17, 2024), the court rejected Washington’s dilatory challenge to Fed.R.Civ.P. 30(b)(6) topics.

The Novo court also rejected Washington’s attempt to fight fire with fire.  It denied Washington’s “blanket” request to de-designate documents that had been marked as “confidential” by NNI in a parallel “blanket” process.

DILATORY AND UNPERSUASIVE CHALLENGE TO DEPOSITION NOTICE

“The Court need not resolve the factual skirmish over whether Washington agreed to the topics in NNI’s Rule 30(b)(6) notice to resolve the motion. The State’s newly-minted objections to the deposition topics come far too late, and are not persuasive.”  Id. (emphasis added).

Washington “argues that NNI’s 51-topic Rule 30(b)(6) deposition notice” is overbroad and unduly burdensome, and denies that it ever agreed to prepare and produce witnesses to testify on those topics….  It moves for a protective order narrowing the topics and setting specific time limits.”  Id. at *1. 

However, the court noted, Washington failed to provide any specifics as to the relief it wanted, writing that: “Washington does not propose the terms of such an order, describe specifically which topics are overbroad, or propose the ‘time limits’ it asks the Court to impose.”

NNI served its Fed.R.Civ.P. 30(b)(6) notice on July 3^rd.  The parties conducted several “meet and confers” to discuss topics.  One was on September 12^th.  That was followed the next day by NNI’s confirming letter stating that an agreement had been reached and Washington’s email four days later stating disagreement.

NNI argued that Washington reneged and, as evidence, pointed to Washington allegedly “ignoring” its letter. Washington argued that it did not “ignore” the letter and, in any event, argued that it had no “legal obligation” to respond. Id. at *2.

The court did not need to resolve that dispute because: “[Washington’s] response, and its proposed revisions to NNI’s Rule 30(b)(6) notice, did not raise the issues it now claims remain outstanding. Instead, the issues addressed by Washington’s ‘proposed draft’ revisions to NNI’s notice were minor.”  Id. at *2.

Washington’s “newly-minted” objection asserted that “the entire notice is overbroad and unduly burdensome….”  Id. at *2.  It cited eight topics and argued that multiple witnesses would be needed and preparation would take “many hours.” 

Washington then added an interesting argument:

Washington argues that since NNI will not have deposition time to ask its Rule 30(b)(6) deponents questions about all 51 topics, it would be a waste of time for Washington to prepare its witnesses to testify about them.

Id. at *2 (emphasis added). 

To me, that appears to be a proportionality type of argument.

The argument was rejected: “Washington asks the Court to narrow the topics, but does not articulate how it should do so, and it does not claim that it articulated to NNI how its topics should be narrowed, beyond its September 17 email.”  Id. at *2.

Courts generally insist on timely presentation of discovery disputes. Plaintiffs Raised This Issue With the Court Too Late (Oct. 7, 2024)(“Sometimes, timing is everything.”); Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024)(“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.” Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023).)); Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023); “Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses (Dec. 9, 2021)(citing D. Md. Discovery Guideline 1.f).

In Novo, the meet and confers appear to have gone from the July 3^rd notice of deposition through the September 12^th confirming letter.  Once there is a negotiating impasse, a party must move promptly to compel.  When Must a Motion to Compel Be Filed?  – Part 2 (Sep. 6, 2024).  Lengthy “good faith” negotiations may not equate to “good cause” for an untimely motion. Id.

When a discovery dispute is presented, specificity in the request for relief is prudent and, likely, mandatory.  In Novo, the motion failed to articulate specifically the relief requested. Id. at *2.  Fed.R.Civ.P. 7(b)(1)(C) states that a motion “must… state the relief sought.”

It is interesting to speculate what the result would have been if Washington had cleared the procedural hurdles.  Can a party demand that opposing corporate designees be prepared on 51 topics when a deposition is limited to seven hours?  If specificity had been provided in a motion under Rule 7(b)(1)(B), could a successful proportionality argument have been presented?

CAN’T FIGHT FIRE WITH FIRE

So-called “blanket” confidentiality designations have, in some – I suggest very limited – – circumstances, been permitted. Three Types of Protective Orders – Requirements to Seal Court Record (Sep. 27, 2024).  Sealing materials filed with a court involves a different standard. Id.  However, even when a blanket designation is permitted, the designating party bears the burden of justifying confidentiality. Id.

Among other issues, the Novo court addressed “blanket” designation of confidentiality and a “blanket” de-designation request.  Id. at *3.  In essence, the de-designation request was an attempt to fight fire with fire.  It was unsuccessful.

The court declined to go through documents one-by-one and deferred adjudication until a document is presented to the court on motion or at trial. Id. 

The court wrote that: “It is not productive to litigate confidentiality designations in the closing days of discovery when substantive discovery remains to be completed. Washington’s motion to compel NNI to de-designate confidential documents is DENIED without prejudice to raise again in connection with a specific document related to a proposed filing, or at trial.”  Id.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.