X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy is the firm’s chairman and past chair of the ABA Discovery and Trial Practice committees. He can be reached at [email protected]. Byman can be reached at [email protected]. There must have been an especially blue moon over Tampa, Fla., a few weeks ago, when Judge Gregory A. Presnell fashioned an order of such rare and brilliant clarity to resolve the thorny discovery dispute before him. Avista Management Inc. v. Wausau Underwriters Ins. Co., No. 6:05-cv-1430-Orl-31JGG (June 6, 2006). Presnell ordered the parties to resolve their dispute with a game of “rock, paper, scissors.” You go, judge. Avista’s counsel noticed a corporate-representative deposition under Fed. R. Civ. P. 30(b)(6), designating that the deposition be taken at a court reporter’s office located nine-tenths of a mile away from the building in which both counsel have offices. Wausau’s counsel found that “not acceptable” and insisted that the deposition be taken at his office or not at all. Avista fired off a “Motion to Designate Location.” No creature of overstatement, Presnell described the motion as “the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts.” Series? The Pacer system lists more than 100 docket entries in the nine months that this case was pending before him since it was removed from state court. And if the judge surrendered a bit to sarcasm when he described as “Gordian” this petty little venue problem, well, duh-did we mention that both counsel are housed in the same building, four floors apart? They couldn’t take an elevator ride without pestering the judge to decide up or down. A winner-take-all game of rock, paper, scissors Did we mention that the court reporter’s office is within easy walking distance of their mutual location? Heady stuff, this dispute. But if the dispute was petty, more so the rhetoric. We quote only one side, because we have from the public filings only one side’s correspondence, but it takes little imagination to suppose that comments like these were not entirely one-sided: “I have tried, and will continue to try, to treat you with courtesy. Meanwhile you have tried, and continue to try my patience.” “Apparently you think it is in your clients’ interest to create as much misery and bad feeling as you are able. In these endeavors, you are most able.” The judge’s fingers must have been slimed with leftover drips of umbrage as he handled the papers. Behave like children, be treated like children. The judge ordered counsel to appear at a specific time at a mutually agreeable (hah!) spot-or, in the likely event that they could not agree, at the courthouse steps-and, each accompanied by a paralegal to act as witness and second, face off in a single, winner-take-all game of rock, paper, scissors. Winner gets to choose the location. And proclaim, “Nah, nah na na nah na.” (That last bit wasn’t actually in the order, but we like to read between the lines.) Now, maybe there was one, but we don’t see a winner on this motion. Both counsel appear to have lost a bit of stature before the court. Both counsel will carry the baggage of this motion when they need to present some genuinely substantive issue down the litigation road. Both counsel probably wish they could have a do-over. You all get the point. We probably do not need to state the obvious. But the practice of law is an art that requires the exercise of judgment. And it is poor judgment to irritate judges. The lesson here is that we need to work with one another to keep the pettiness between ourselves-to save the judge for more becoming work. We suppose that you are free to waste your own time-so long as you don’t violate the canons of ethics by billing for unproductive activities. And we can’t stop you from wasting your opponent’s time-so long as you stay within the confines of Rule 11. But when you waste the court’s time, you make a grave mistake. And while we are in Aesop mode, musing about morals, we happened to look at the 30(b)(6) notice and the Motion to Designate Location. There are more lessons to be learned here. We have written about these things before, but it appears that a refresher might be in order. The notice as issued by Avista states that, under Rule 30(b)(6), Avista intends to take the deposition of a Wausau corporate representative and one “Wayne Klocko (individually and as Representative for Wausau)” on July 11-12, 2006; “Deponent will testify regarding items on Schedule A and individually.” Schedule A contains 77 paragraphs, each of which begin “The person(s) most knowledgeable at WAUSAU UNDERWRITERS regarding . . . ” Yet the only objection apparently raised by Wausau to this notice was the location. Whew. Where do we start? In Avista, plaintiff’s counsel picked the neutral location of the court reporter; defendant’s counsel balked and insisted that the deposition be taken in his office. In his motion, plaintiff’s counsel asserted that “courts have generally frowned upon the taking of depositions at the office of counsel for either party.” For this “general” proposition, counsel cited a couple of pre-World War II New York state cases. Let’s read the rule. Fed. R. Civ. P. 30(b)(1) requires-and permits-that the noticing party state the time and place of the deposition. For nonparties, the place must be within the subpoena power of the court, within 100 miles of the court in the district that issues the subpoena. For parties, “the examining party generally designates the location for the deposition of another party” but “a court may grant a protective order to . . . protect a party from ‘undue burden or expense.’ ” O’Sullivan v. Rivera, 229 F.R.D. 187, 189 (D.N.M. 2004). “In the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party’s residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party.” Metrex Research Corp. v. United States, 151 F.R.D. 122, 125 (D. Colo. 1993). But in Tomingas v. Douglas Aircraft Co., 45 F.R.D. 94, 97 (S.D.N.Y. 1968), noting that the ultimate decision on location is solely within its discretion, the court ordered the defendant to produce two employees who lived and worked in California at plaintiff’s counsel’s offices in New York because “defendant is most able to bear the expense of the trip.” So there. There may be limits on your right as the noticing party to pick the location, but if you get the city right, there is no problem with picking your own office. Avista’s notice was for two days. Let’s read the rule. Fed. R. Civ. P. 30(d)(2) limits all depositions-including representative depositions-to one day of seven hours. Of course, courts have discretion to extend the time for good cause shown, but the burden is on the examining party to make that showing. Now, the case law does not yet suggest a trend that the seven-hour, one-day limit will be applied as strictly as, say, our border patrol standards, but the limit is there and courts do from time to time enforce, or come close to enforcing, it. Beneville v. Pileggi, 2004 U.S. Dist. Lexis 13586 (D. Del. 2004) (additional time denied where examiner did not demonstrate good cause); McDougal-Wilson v. Goodyear Tire & Rubber Co., 232 F.R.D. 246, 249 (E.D.N.C. 2005) (additional hour ample to take 30(b)(6) deposition); Santos v. Boeing Co., 2003 U.S. Dist. Lexis 18736, 2-3 (N.D. Ill. 2003) (8 1/2 hours enough). Maybe Wausau did not object to the two-day notice because it intends to play tit for tat. And we can’t fault that possible reasoning, but caution must be exercised employing it. When it is time for you to demonstrate good cause to exceed seven hours for your depositions, we doubt that a court will be swayed by “they did it to our witnesses.” So object to notices that arrogate time in excess of the limits imposed to the rule. A difference between rules 30(b)(1) and 30(b)(6) Avista noticed one representative deposition but purported to require Wausau to proffer a named individual as the representative to testify both individually and as a representative. Did we mention that we ought to read the rules? You can depose a specific individual by name or title. But you can’t require the individual to do homework to learn about your proposed topics of interest. You can depose a representative and require the entity to educate the representative to testify about specific topics. But you can’t dictate who the representative will be. You don’t get to-you don’t even want to-talk to the “person most knowledgeable.” Pu-leaze. Read the rule. The phrase “person most knowledgeable” does not appear in the rule-nor should it. The point is not to award a blue ribbon to an individual for knowing more facts than his co-workers. On a particular topic, the single most knowledgeable person may not be very knowledgeable at all. Suppose A knows 10% of the story, B knows 5%, C knows 5% and D-W each know 2%. Do you really want to talk to A? No, you want-and the rule requires-the entity to cull the collective knowledge of A-W and offer up one or more representatives able to deliver the goods. It doesn’t matter whether the representative is A or D or even X. We were never good at rock, paper, scissors. Which is why we intend not to tempt fate. We intend to read and follow the rule. And when we get into disputes with our opponents that must certainly be their fault (perish the thought it might be ours), we intend to save motion practice for something worthy of judicial decision.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.