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

February 12, 2010

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 the Court is Defendant/Counterclaimant's Motion For Protective Order Re: Plaintiff's Third Amended Notice of Rule 30(b)(6) Deposition. Defendant seeks an order pursuant to Federal Rule of Civil Procedure 26(c), protecting it from compliance with Plaintiff's Third Amended Notice of Rule 30(b)(6) Deposition (hereinafter "Amended 30(b)(6) Notice"). For reasons set forth below, Defendant's Motion is denied.

I. BACKGROUND

On March 4, 2009, Plaintiff Nippo Corporation/International Bridge Corporation, a joint venture, filed the instant lawsuit against Defendant AMEC Earth & Environmental, Inc. to recover over $18 million in damages it allegedly incurred during performance of its subcontract to demolish and replace a runway at Anderson Air Force Base in Guam (hereinafter "Project").*fn1 On March 31, 2009, Defendant countersued, seeking declaratory judgment and breach of contract damages for Plaintiff's alleged failure to timely fulfill its obligations under the subcontract.*fn2

On January 14, 2010, Plaintiff served Defendant with its Second Amended 30(b)(6) Notice, setting forth twenty-eight examination topics.*fn3 On February 3, 2010, Defendant conferred with Plaintiff via telephone regarding the Notice. Plaintiff agreed to modify the deposition topics and served Defendant with its Third Amended 30(b)(6) Notice on February 4, 2010.*fn4 Defendant subsequently filed the instant Motion on February 8, 2010, requesting relief from compliance with Plaintiff's Amended 30(b)(6) Notice.*fn5 The Court has carefully reviewed Defendant's Motion 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.*fn6

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...."*fn7 "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."*fn8 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."*fn9

III. DISCUSSION

Defendant seeks relief from compliance with three (3) topics set forth in Plaintiff's Amended 30(b)(6) Notice, specifically Topics 11, 17, and 19. Topic 11 inquires about Defendant's "bases for amending and/or waiving the specifications related to hot mix asphalt to obtain approval from the Air Force for the hot mix asphalt job mix that was ultimately used on the Project"; Topic 17 inquires about the "reasons, according to [Defendant] why Hawaiian Rock Products, the JV, and/or [Defendant] were unable to develop a HMA job mix formula that met the original [Project specifications]"; and Topic 19 inquires about Defendant's "direction to [Plaintiff] regarding spall repair, handfinishing, excess paste, and rain damage."

Defendant asserts that Topics 11, 17, and 19 do not meet the requirements of FRCP 30(b)(6) because the inquiries "are vague and not sufficiently connected to the construction project that forms the subject matter of [Plaintiff's] case" and as a result, Defendant "does not possess the information necessary to adequately designate and prepare a deponent to respond..."*fn10 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.*fn11 The requirement does not limit the scope of discovery of relevant matters.*fn12

As such, the Court sees no reason why Defendant cannot designate and prepare one or more deponents to testify on its behalf regarding the underlying reasoning of decisions made by its corporate body during performance of the Project, as requested in Topic 17. The Court, however, does not expand Topic 17 to include testimony about underlying decisions made by Plaintiff, as this would be information that goes well beyond the purview of Defendant's knowledge. As to Topics 11 and 19, although Plaintiff did not define the terms "direction" or "bases" in its Amended 30(b)(6)Notice, the Court does not find the topics to be "vague and overbroad"as asserted by Defendant. The words "direction" and "bases" as used in the context of these deposition inquiries can reasonably be expected to be given their plain and ordinary meaning.

For these reasons, the Court concludes that Plaintiff has met its obligation under Rule 30(b)(6) to plead with reasonable particularity the matters on which it requests examination. The Court further finds that Plaintiff's Amended 30(b)(6) Notice sets forth specific, particular subject areas that clearly provide relevant deposition topics about the issues in dispute. If none of Defendant's employees individually have sufficient direct knowledge concerning Topics 11, 17, and 19, as asserted in Defendant's Motion, Defendant still has an obligation to designate and prepare one or more knowledgeable witness, in good faith, to represent the party.*fn13 Inasmuch as Defendant has already informed Plaintiff that "Mr. McQuiston [is its] designee for most of [the twenty-eight deposition] topics", Defendant's argument that the Amended 30(b)(6) Notice deposition will "create an unfair risk of liability" to Defendant does not provide adequate grounds for a protective order.*fn14

The Court finds that Defendant has not met its burden to show good cause under Rule 26(c)(1) for entry of a protective order regarding ...


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