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Acid test. The term was coined, as you no doubt know, during the California Gold Rush, when sulfuric acid was applied to yellow ore. If it turned blue, what you had was copper (it had become copper sulfate); if it remained unchanged, you had gold, you had passed the acid test. With sulfuric acid, you could verify gold. And now, thanks to sulfuric acid and an industrious magistrate judge, there is gold aplenty. In late August and early September 2005, Judge Jeffrey Cole issued four separate opinions in the Sulfuric Acid Antitrust Litigation that clarify and articulate important — critically important — lessons for the conduct of discovery. You should read the opinions themselves, of course, but here is the Reader’s Digest version. NEED LEAVE TO NOTICE FOR A SECOND 30(b)(6) DEPOSITION The defendants took a 30(b)(6) deposition on seven enumerated topics. After the deposition was concluded, and after a second amended complaint had been filed, the defendants served a notice for another 30(b)(6) deposition on seven new enumerated topics which, it claimed, were necessary in light of the amended complaint. The plaintiffs refused to honor the notice; the defendants moved to compel. Ah, but the court found the motion to compel uncompelling. See, the problem is that Fed. R. Civ. P. 30(a)(2)(B) does not allow a party to notice a deposition of a person who “has already been deposed in the case.” There had already been a deposition of the corporate person, so the new notice — issued without prior leave of court — was invalid, and the motion to compel perforce denied. Now we have to read a bit between the lines here. The motion was denied because the notice was invalid. But there is no discussion on the merits: that is, whether the court would have granted leave for an additional deposition if leave had been sought. We suspect that is because the plaintiffs never made a case for themselves on the substance. Apparently, they argued that they had no obligation to obtain leave of court because, in their view, Rule 30(a)(2)(B) does not apply to Rule 30(b)(6) depositions, especially where the second deposition relates to different topics than the first. And, apparently, they asked the court to focus on the language of Rule 30(a)(2)(B), which is that leave “shall be granted to the extent consistent with the principles stated in rule 26(b)(2).” Not good enough. The plain language of Rule 30 is that it applies to all Rules 30 and 31 depositions, including, of course, Rule 30(b)(6) depositions. And the “shall” language still requires that leave be sought so that the court, not self-serving counsel, can make the determination that a second deposition serves the purposes of Rule 26. As to actual substance, it appears that the defendants simply made the conclusory assertion that the amended complaint justified a new deposition. Not even close to good enough. “It is no answer to say that where there has been an amendment to a complaint, discovery is often allowed. ‘General propositions do not decide concrete cases.’ Lochner v. New York, 198 U.S. 45, 76, 49 L. Ed. 937, 25 S. Ct. 539 (1905).” In re Sulfuric Acid Antitrust Litig., 2005 U.S. Dist. Lexis 17420, 8 (N.D. Ill. Aug. 19, 2005). So here’s the gold: Golden Nugget No. 1: When you list your topics for a 30(b)(6) deposition, don’t assume you can always go back with new topics. A representative deposition is no different than a personal one, where if you forget to ask a question, you probably will not get a second chance. And if you want to try for that second bite, ask the court. We’ve done it. You probably have, too. The discovery cutoff date looms. Two weeks before the deadline, you issue a notice requiring a deponent to appear at your office the day before the cutoff. Ten business days’ notice. Plenty of time. Um, maybe not. The Sulfuric Acid plaintiffs served notices 10 business days in advance, with the noticed dates falling just inside the cutoff date. Now, there were a few complications. The witnesses were Canadian citizens residing in Toronto. The plaintiffs had known about them since, well, since sulfuric acid was still called oil of vitriol. The case involves more parties than a college fraternity season and enough lawyers to ensure that no opinion in the case starts until well into the second page. Fed. R. Civ. P. 30(b)(1) requires “reasonable notice.” The court conceded that 10 business days’ notice would seem reasonable as a general proposition. But — and, oh, is this a huge but — “just as negligence in the air does not exist, neither does reasonableness: the analysis is necessarily case-specific and fact-intensive. What would be reasonable even in a late stage of a relatively simple case with few lawyers may take on a very different cast where, as here, the case is exceedingly complex, the depositions are to occur virtually hours before the discovery cut-off, and it was obvious — or at least probable — that the schedules of the deponents and a number of lawyers would be unable to accommodate the belatedly filed notices.” On these facts, the court found the notices were not reasonable. The notices were invalid; depositions denied. In re Sulfuric Acid Antitrust Litig., 2005 U.S. Dist. Lexis 19352, 20-21 (N.D. Ill. Aug. 26, 2005). Bummer. Golden Nugget No. 2: What is reasonable in general may not be reasonable on the specific facts of your case; don’t count on being able to take discovery that you try to squeeze in just before the bell. You don’t, of course, want to bother the court with discovery motions. You want to try to work things out with opposing counsel if you can; you want to be sure that the dispute is worth taking to the judge; you want to present as many of those issues as possible in a single motion rather than pester the court with a series of motions. So there is an inclination to wait until near the end of discovery to bundle up all of those issues. Maybe not such a good idea. The plaintiffs filed motions to compel on the date that discovery was to close. The defendants objected that the motions were untimely. The court agreed. Cole nicely summed up the issue: “The Federal Rules of Civil Procedure place no prescribed time limit on the outside date for filing a motion to compel discovery. In one regard, however, a line of sorts has been sketched by a series of decisions: motions to compel filed after the close of discovery are almost always deemed untimely. Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001). Greater uncertainty occurs where the motion is made very close to the discovery cut-off date. Some districts by local rule have imposed time limits within which motions to compel must be brought … . Most, however, have no such rules, and the matter is left to the broad discretion possessed by the district courts to control discovery.” So, Cole proceeded to use his broad discretion. The defendants had objected to discovery because there was a pending motion to dismiss, thus granting themselves a stay. The plaintiffs could have, of course, moved to compel right away, but they chose to wait. They waited too long. Too bad. Motion denied as untimely. Golden Nugget No. 3: Cole said it better than we could: “Throughout the range of the law, there are time limits imposed on litigants at every stage of the case: some are mandatory and admit of no deviations; others are more flexible. But in each instance, lawyers who do not pay heed to them do so at substantial peril to their and their clients’ interests.” In re Sulfuric Acid Antitrust Litig., 2005 U.S. Dist. Lexis 19116, 2 (N.D. Ill. Sept. 6, 2005). THE GOLDEN RULE: RULES ARE RULES And finally, our favorite. Limits are limits. By agreement, the parties allowed a witness to be deposed for 17 hours, well in excess of the seven-hour presumptive limit imposed in the 2000 amendments to Rule 30(d)(2). But the plaintiffs wanted another four hours, for a topic that only this witness could provide: the deciphering of 50 pages of his handwritten notes. Nothing in Cole’s opinion indicates that he would have granted the motion even if there had not already been 10 extra hours. The point, Cole cogently points out, is that a limit means that choices may have to made, that there may not be time to do everything: “In every deposition, choices have to be made about the subject matter to be covered. The seven-hour rule necessitates, especially in complex cases, that almost all depositions will be under-inclusive. The examiner therefore must be selective and carefully decide how to apportion her time.” This is not a radical concept. As Cole notes, the rules are replete with limits that require lawyers to make choices, that restrict their ability to do every possible thing: “The decision of what to ask at a deposition is no different than the decision of what to include in a brief in a court of appeals or the Supreme Court. There, one is limited by word count, making it impossible to include every argument one desires and to say as much about each argument as one perhaps would like. The content of a deposition is constrained by temporal limitations, but they are no less constricting.” In re Sulfuric Acid Antitrust Litig., 2005 U.S. Dist. Lexis 19352, 16 (N.D. Ill. Sept. 7, 2005). Golden Nugget No. 4: You may talk a court into some extra hours, but it is not your rule-given right to ask every question that occurs to you. Exercise judgment. Assume that you are limited by limits. “If you obey all of the rules, you miss all of the fun” (Katharine Hepburn). True enough. But if you don’t heed the wisdom of these acid tests, you will miss more than fun. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman, can be reached at [email protected]. Byman, chairman of the ACTL Civil Procedure Committee, can be reached at [email protected].

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