The opinion of the court was delivered by: Eduardo C. Robreno, J.
State Farm Mutual Automobile Insurance Co. and State Farm Fire and Casualty Co. ("State Farm") brought suit against certain health-care providers ("Defendants"), alleging that Defendants carried out a fraudulent scheme to obtain payment for injuries allegedly caused by State Farm insureds. During the course of discovery, Defendants conducted a deposition of State Farm through its corporate designee, Austin Bowles, pursuant to Federal Rule of Civil Procedure 30(b)(6). Disputes arose at the deposition concerning Bowles's responses and counsel for State Farm's instructions not to answer.
Defendants subsequently moved to compel Bowles's Rule 30(b)(6) deposition testimony. State Farm argued that, at the deposition, counsel "properly instructed Bowles not to disclose any facts learned from discussions with counsel in preparation for the Rule 30(b)(6) deposition because such facts constitute attorney work product." State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008). The Court disagreed, and instructed the parties that "[t]o the extent that defense counsel's questions seek relevant, non-privileged facts learned from discussions with counsel, and do not seek counsel for State Farm's mental impressions, conclusions, opinions, or legal theories, those questions must be answered," pointing the parties to the decision in Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989). New Horizont, 250 F.R.D. at 215-16 & n.9.
The Court's order required that "an additional Rule 30(b)(6) deposition of Mr. Austin Bowles, and/or another appropriately prepared designee, shall take place no later than June 9, 2008." Id. at 223. The Rule 30(b)(6) deposition was taken on June 11, 2008, through State Farm employee and corporate designee John Costanzo. On May 20, 2008, Defendants noticed yet another Rule 30(b)(6) deposition of State Farm to address additional, previously unexplored areas of inquiry.
In a separate section of the memorandum, the Court briefly discussed Federal Rule of Civil Procedure 33(b), and the possibility that Bowles's verifications of answers to interrogatories may have been improper, as "[i]t is incomprehensible how Bowles could have verified under oath the truth of answers to interrogatories if he had never previously seen them." Id. at 222. While the Court did not hold that the answers to interrogatories were improperly verified, it did note that "Defendants may be entitled to file a motion to compel responses to specific interrogatories that State Farm failed to answer or answered in an evasive or incomplete manner . . . and possibly for sanctions," if Bowles verified those responses without any basis. Id. at 222 n.18.
Defendants did not file any such motion; instead, on May 13, 2008, Defendants noticed the deposition of Bowles in his individual capacity, proposing a May 22, 2008 deposition date. The notice does not cite Rule 30(b)(6), and includes extremely broad topic areas for examination:
[C]counsel . . . will take the deposition of Austin Bowles on matters related to this litigation, including, but not limited to, (a) his preparation for his deposition as Plaintiffs' corporate designee held on June 6, 2007, (b) verifications of Plaintiffs' discovery responses in the above action, and (c) facts and materials provided to him by Plaintiffs' counsel in preparation for his above deposition and related to his verifications as authorized by the Federal Rules of Civil Procedure.
Def.'s Mot. to Compel, Ex. 2 (doc. no. 377) (emphasis added). The notice is also accompanied by extremely broad categories of documents that Bowles must bring to the deposition:
1. Any and all discovery responses, including but not limited to, answers to interrogatories and document production requests, admissions, verified by Mr. Austin Bowles on behalf of Plaintiffs, and/or transcripts of depositions given by Mr. Bowles on behalf of Plaintiffs, and/or transcripts of depositions given by Mr. Bowles on behalf of Plaintiffs, in actions, other than the instant action, for the period from 1998 to 2008.
2. Documents identified in Ruslana Voloshen and Northeast Aqua and Physical Therapy Center, Inc.'s Supplemental Request for Production of Documents--Set IX, dated May 13, 2008.
By letter of May 19, 2008, counsel for State Farm indicated that the proposed date would not work, and stated its position that the deposition was improper, indicating that it would file a motion for protective order. Id., Ex. 4. The deposition was scheduled for June 11, 2008.
On May 30, 2008, however, apparently seeking to preempt the motion for protective order, Defendants filed a motion to compel Bowles's deposition in his individual capacity under Rule 37(a) (doc. no. 377). The motion for protective order seeking to enjoin the deposition of Bowles in his individual capacity was filed on June 20, 2008 (doc. no. 387). State Farm also filed a motion for protective order seeking to enjoin Defendants from taking the additional Rule 30(b)(6) deposition that Defendants noticed on May 20, 2008 (doc. no. 381).
The Court decided the motions from the bench following a hearing on July 14, 2008, denying as moot the motion to compel, and granting the motions for protective orders. Thereafter, a written order was issued memorializing the decision (doc. no. 393). See Order, July 16, 2008 (doc. no. 393). Defendants have filed a motion for reconsideration of the order to the extent that it granted State Farm's motion for a protective order from the additional Rule 30(b)(6) deposition noticed on May 20, 2008 (doc. no. 398). Defendants have also filed two new motions to compel, seeking an additional Rule 30(b)(6) deposition of Plaintiffs to address previously unexplored issues of reliance, damages and proximate cause (doc. nos. 400 & 401).*fn1 This memorandum seeks to explain more fully the basis for the Court's July 16, 2008 order. In addition, for the reasons set forth below, Defendants' motion for reconsideration (doc. no. 398) and motions to compel an additional Rule 30(b)(6) deposition (doc. nos. 400 & 401) will be denied.
II. MOTION FOR PROTECTIVE ORDER: AUSTIN BOWLES
Rule 26(c)(1) governs protective orders and provides, in pertinent part:
The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding the disclosure or discovery [or] . . . forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; . . . .
Fed. R. Civ. P. 26(c)(1).
B. Bowles's Deposition in His Individual Capacity
Defendants' effort to depose Bowles in his individual capacity is yet another distraction far removed from the merits of a case already mired in discovery disputes. For the reasons that follow, the Court has granted Plaintiffs' motion for protective order (doc. no. 387).
1. The May 7, 2008 memorandum and order Defendants believe that a deposition of Bowles in his individual capacity was ordered by the Court in its May 7, 2008 memorandum and order:
The Notice of Deposition and document requests were drafted specifically to follow the Court's directive to
(1) re-depose Bowles on the subject of the facts (if any) learned by Bowles from State Farm's counsel, and
(2) elicit information regarding verification of discovery responses to determine whether the responses contained truthful information and whether a further ...