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Nippo Corp./International Bridge Corp. v. AMEC Earth & Environmental

December 11, 2009

NIPPO CORPORATION/INTERNATIONAL BRIDGE CORPORATION, A JOINT VENTURE PLAINTIFF/COUNTERDEFENDANT,
v.
AMEC EARTH & ENVIRONMENTAL, INC. DEFENDANT/COUNTERCLAIMANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Before this Court is Plaintiff's Motion For Protective Order Re: 30(b)(6) Deposition. Plaintiff seeks an order from this Court pursuant to Federal Rule of Civil Procedure 26 (c), protecting it from compliance with Defendant's Notice of Rule 30(b)(6) Deposition submitted on August 7, 2009 (hereinafter " 30(b)(6) Notice"). For reasons set forth below, Plaintiff's Motion is denied.

I. BACKGROUND

Plaintiff Nippo Corporation/International Bridge Corporation, a joint venture, filed the instant lawsuit against Defendant AMEC Earth & Environmental, Inc. to recover damages it allegedly incurred during performance of its subcontract to demolish and replace a runway at Anderson Air Force Base in Guam.*fn1 Prior to initiating this lawsuit, Plaintiff submitted a Request for Equitable Adjustment (hereinafter "REA") to Defendant, which Defendant rejected in its entirety.*fn2 The REA was drafted and compiled by Mr. Carl LaFraugh, a civil engineer consultant retained by Plaintiff to investigate and calculate potential claims against Defendant.*fn3 Mr. LaFraugh calculated ten separate categories of damages and recoverable impacts against Defendant totaling over $19 million.*fn4 The damage calculations and scientific methodology underlying Plaintiff's claims, to include labor hours, equipment costs, material costs, calculations of inefficiencies, delay impacts, overhead, and labor burdens incurred between 2005 and 2007 and are all addressed in the REA.*fn5 Plaintiff's Complaint is based on the claims and calculations set forth in its REA. Plaintiff intends to use Mr. LaFraugh as a testifying expert at trial.*fn6

On August 7, 2009, Defendant sent a 30(b)(6) Notice to Plaintiff, requesting that Plaintiff designate a witness or witnesses to testify at a deposition in which fifteen topics would be addressed.*fn7 The topics can be grouped into two categories: (i) topics regarding the "facts and circumstances" that resulted in the cost overruns alleged in the REA (Topics 1 and 12) and (ii) topics regarding the calculation of damages in the REA (Topics 2-11 and 13-15).*fn8 After receiving the 30(b)(6) Notice, Plaintiff sent Defendant a letter objecting to each topic.*fn9 Plaintiff and Defendant's counsel discussed the 30(b)(6) Notice via telephone on August 25, 2009, but were unable to reach an amicable resolution.*fn10 Plaintiff subsequently filed the instant Motion on August 28, 2009, requesting relief from compliance with Defendant's 30(b)(6) Notice.*fn11 Defendant filed its response on September 14, 2009; Plaintiff replied on September 30, 2009; and Defendant sur-replied on October 21, 2009.*fn12 To date, Plaintiff has not produced a corporate deponent for any of the fifteen topics in Defendant's 30(b)(6) Notice.*fn13 The Court has carefully reviewed Plaintiff's Motion and Reply, Defendant's Responses, and all accompanying materials, and this matter is ready for disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 30(b)(6) states in pertinent part that, a party may name as the deponent a public or private corporation...and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and may set out the matters on which each person designated will testify...The person designated must testify about information known or reasonably available to the organization.*fn14

Pursuant to Federal Rule of Civil Procedure 26(c)(1), a "court may, for good cause, issue an order to protect a party...from annoyance, embarrassment, oppression, or undue burden or expense..."*fn15 "It is well established that the party wishing to obtain a protective order bears the burden of demonstrating that 'good cause' exists for the order."*fn16 In addition to bearing the burden to show good cause, the party moving for a protective order must demonstrate such cause with specificity "beyond bald assertions of harm for each specific request that it wants protection from."*fn17

III. DISCUSSION

Plaintiff asserts throughout its Motion that it will be prejudiced if a protective order is not granted as to Defendant's fifteen corporate witness deposition topics because the 30(b)(6) Notice demands incredible amounts of time, effort, and cost in educating multiple witnesses about every aspect of a complex, multi-year construction project and Defendant would gain an unfair advantage if it is able to usurp this Court's scheduling order by allowing its expert Mr. LaFraugh to be deposed twice - once as a 30(b)(6) designee and once an expert witness. In response, Defendant argues generally that its 30(b)(6) Notice sets forth specific topics requesting relevant factual information within the scope of FRCP 30(b)(6) and that it only seeks to inquire into the facts and circumstances related to Plaintiff's REA, which Plaintiff admits, forms the basis of its Complaint.*fn18 Defendant underscores the fact that Plaintiff's REA, which sets forth the very facts Plaintiff now alleges in its Complaint, was submitted to Defendant nearly one year prior to initiation of the instant litigation.*fn19

A. 30(b)(6) Topics 1 and 12

Plaintiff contends that 30(b)(6) Notice Topics 1 and 12 do not meet the "reasonable particularity" standard established by FRCP 30(b)(6). Instead, both topics "unreasonably include essentially every factual event in the entire construction project [that spanned multiple years and involved many different individuals]...and will likely require multiple witnesses, many days of testimony, and an extraordinary amount of pre-deposition preparation."*fn20 Plaintiff further contends that if Defendant "seeks factual testimony concerning the Project via a corporate deposition, it should narrowly tailor its topics to encompass specific, targeted aspects of the Project - instead of broadly seeking testimony regarding the Project as a whole that no single designee could possibly be expected to know or learn."*fn21

The "reasonable particularity" requirement in Rule 30(b)(6), however, merely requires that the requesting party describe topics with enough specificity to enable the responding party to designate and prepare one or more deponents.*fn22 The requirement does not limit the scope of discovery of relevant matters.*fn23 In the instant case, the Court finds that Defendant's 30 (b)(6) Notice sets forth specific, particular subject areas that clearly provide relevant deposition topics about the issues in dispute. For this reason, the Court concludes ...


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